Science, Technology, and New Challenges to Ocean Law [1 ed.] 9789004299610, 9789004299603

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Science, Technology, and New Challenges to Ocean Law

Science, Technology, and New Challenges to Ocean Law A Law of the Sea Institute Publication Edited by

Harry N. Scheiber James Kraska Moon-Sang Kwon

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Law of the Sea Institute Conference (2013 : Berkeley, Calif.)  Science, technology, and new challenges to ocean law / edited by Harry N. Scheiber, James Kraska, MoonSang Kwon.   pages cm  “A Law of the Sea Institute Publication”  Includes index.  ISBN 978-90-04-29960-3 (hardback : alk. paper) — ISBN (invalid) 978-90-04-29961-0 (e-book)  1. Law of the sea—Congresses. 2. Technological innovations—Law and legislation—Congresses. I. Scheiber, Harry N., editor. II. Kraska, James, editor. III. Kwon, Moon-Sang, editor. IV. Law of the Sea Institute, sponsoring body. V. Title.  KZA1141.L39 2013  341.4'5—dc23

2015017091

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. isbn 978-90-04-29960-3 (hardback) isbn 978-90-04-29961-0 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Acknowledgments ix Introduction 1 Harry N. Scheiber, Director, LOSI

Part 1 Adjudication 1 Law and Science in the Jurisprudence of the International Tribunal for the Law of the Sea 15 Tullio Treves

Part 2 An Historical Overview 2 From the Age of Discovery to the Atomic Age: The Conflux of Marine Science, Seapower, and Oceans Governance 29 James Kraska

Part 3 Ecosystem Management and Sustainability in Ocean Resources Use 3 A European Law Perspective: Science, Technology, and New Challenges to Ocean Law 65 Ronán Long 4 Developing an Equitable and Ecosystem-Based Approach to Fisheries Management 124 Ruth Davis and Quentin Hanich 5 Sustaining Atlantic Marine Species at Risk: Scientific and Legal Coordinates, Sea of Governance Challenges 149 David L. VanderZwaag

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6 Implementing the Nagoya Protocol in Pacific Island Countries 165 Justin Rose

Part 4 Resource Challenges above and below the Oceans 7 The Deep Ocean: Advancing Stewardship of the Earth’s Largest Living Space 187 Kathryn J. Mengerink 8 Submarine Communications Cables and Science: A New Frontier in Ocean Governance? 209 Tara Davenport 9 Offshore Energy: Troubled Waters in the Eastern Mediterranean Sea 253 Maria Gavouneli 10 International Legal Challenges Concerning Marine Scientific Research in the Era of Climate Change 280 Alexander Proelss 11 ‘Idle Iron’ versus ‘Rigs-to-Reefs’: Surviving Conflicting Policy Mandates in the Gulf of Mexico 296 Richard J. McLaughlin

Part 5 Regional Issues: The Arctic and the South China Sea 12 Dividing and Managing Increasingly International Waters: Delimiting the Bering Sea, Strait and Beyond 313 Clive Schofield 13 The Role of Indigenous Peoples in Managing Offshore Arctic Resources 345 Jordan Diamond

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14 China’s Emerging Arctic Strategy and the Framework of Arctic Governance 367 Jun Zhao 15 Boundary Conflict: The China-Philippines Confrontation over the Scarborough Reef, and the Viability of UNCLOS Dispute Resolution Procedures 395 Joel C. Coito

Part 6 Enforcement in Ocean Management Regimes 16 Combating Illegal and Unauthorized Fishing: An Assessment of Contemporary Practice 435 Stuart Kaye

Part 7

17 A Remembrance of Stefan A. Riesenfeld 453 John Briscoe Index 467

Acknowledgments It is with special pleasure that the coeditors, the Law of the Sea Institute, and I acknowledge the contributions to this volume of many individuals and organizations. Our first debt, of course, is to the authors of the studies that are published here. My personal indebtedness to my colleagues James Kraska and Moon-Sang Kwon, first in the organization of the conference at Berkeley and now in the very considerable work of editing, is very great indeed. We had indispensable support in the editorial enterprise from Jordan Diamond, J.D., at a time when she was carrying heavy responsibilities in her position as staff attorney in the Environmental Law Institute of Washington, D.C. while also serving devotedly as academic coordinator for LOSI at Berkeley. The Korea Institute of Ocean Science and Technology (KIOST) was a full partner in the funding and organizing of the Berkeley conference at which these papers were first presented in preliminary form. We are deeply grateful to Dr. Kwon of KIOST for his leadership and continuing scholarly role in the collaboration that LOSI has enjoyed in the course of KIOST involvement in our recent conferences and publications. Other cooperating sponsors of the Berkeley conference included the Office of the Dean of the UC Berkeley School of Law; the University of Athens, Greece; Bilgi University, Istanbul; Dalhousie University, Canada; the Gerard Mangone Center for Marine Policy, University of Delaware; the Environmental Law Institute; the Harte Research Institute for Gulf of Mexico Studies of the Texas A&M University; the Australian National Center for Ocean Studies and Security, Wollongong University; and the National University of Ireland at Galway. Invaluable counsel on program design and content was provided to the organizers by Judge Tullio Treves, Attorney John Briscoe of San Francisco, Adjunct Professor Sherry Broder of the University of Hawai’i; and Professor Seokwoo Lee of Inha University, Korea. The LOSI staff at UC Berkeley, Ms. Karen Chin and Ms. Toni Mendicino, managed to perfection all travel and local arrangements for the conference. Ms. Charity Lee on the KIOST staff was, as always, of enormous help in the cause of efficient transnational and institutional collaboration. Finally, the editors and authors are especially indebted to Ms. Marie Sheldon and her colleagues in the editorial and production departments of Brill/Nijhoff for the sage and talented attention they have given to this book. Harry N. Scheiber

Introduction Harry N. Scheiber

Director, Law of the Sea Institute, UC Berkeley

Immediately after the UN Convention on the Law of the Sea was opened for signature, Jens Evensen of Norway, one of the principal figures involved in the conference meetings that had produced the newly signed agreement, offered at a Law of the Sea Institute conference his reflections on the larger context of the completed deliberations. “The basic problems with which the Law of the Sea Conference tried to cope,” he wrote, “were the impact of the revolutionary developments in science and technology, and the influence of these forces in international law.” Paradoxically, as the Conference’s delegates well realized, the far-reaching effects of the revolutionary developments in both science and technology already had become a driving engine of rapidly accelerating scale, scope, and intensity of the world population’s uses of the global oceans and coastal areas. Along with the gains for humanity, most dramatically up to that point in the harvesting of fish resources in the face of unremitting population increase and food-security needs, there were also obvious dangers associated with scientific and technological innovation. The potential for harm to marine resources and environment were already well recognized, not least as related to what Ambassador Evensen pointed out were the “industrial and military technological revolution, and the rampant consumption of the world’s dwindling stock of non-renewable resources.”1 The Stockholm Declaration of a decade earlier had eloquently sounded an urgent warning about these dangers, and also with regard to the long-term threat of a comprehensive degradation of natural resources. Meanwhile the deployment of the nuclear bombs in 1945, ending World War II, and then serial Pacific Ocean nuclear bombing tests, foretold both the perils of human and atmospheric effects but also, ironically, the possibilities of harnessing nuclear power for civilian energy needs. A series of serious oil spills from shipping and offshore drilling sources, impelling the movement for regulation in the Inter­ national Maritime Organization, were keeping in the forefront of discourse 1  Jens Evensen, “The Effect of the Law of the Sea Conference upon the Process of the Formation of International Law: Rapprochement between Competing Points of View,” in R.B. Krueger and S.A. Riesenfeld (eds.), The Developing Order of the Oceans (Proceedings of the 18th Annual Conference of the Law of the Sea Institute) (Honolulu: Law of the Sea Institute, University of Hawaii, 1984), 25–26.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004299610_002

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on marine affairs the perdurable problems of pollution associated with navigation and with oil and gas extraction in ocean waters. The controversial course of “ocean enclosure” was also already well under way nearly a decade before the UNCLOS signing, serving both as an imperative impetus for the convention’s attempt at resolution of the zonal questions and as a foreshadowing of such problems as the continental shelf claims would pose later. Meanwhile, the disparity in resource capacity and technological expertise as between the nations of the North and the South, as the decolonization and nation-formation process was going forward, underlined for contemporaries the longer-term significance of the “bloc” formation and voting that had marked the UNCLOS debates, at times even overshadowing the Cold War divisions that were otherwise dominating global diplomacy and international power relationships. As Arthur Dean, the head of the U.S. delegation to the 1960 Geneva conference on ocean law concluded from the recent experiences in negotiation that had been attempted with only partial success in 1958 and a deadlock in 1960, “the legitimate ambitions of the newer nations as well as . . . the just requirements of the more established states must be recognized” in any newly designed legal order for uses of the oceans and of global resource uses more generally.2 The successful negotiation of the UN Convention on the Law of the Sea (UNCLOS), now more than three decades in the past, was an achievement of enormous historical significance—serving, as had been intended, as a framework convention (or, in the more sweeping but certainly credible term, often invoked, as “constitution for the oceans”): It not only set out specific treaty language amounting to hard law on specific matters for parties to the Convention, but also articulated aspirational principles that could, and did, inspire both other formal treaty instruments and soft law in important aspects of ocean and coastal uses. The definition of new international legal regimes and the creation of a panoply of institutions for maintenance and enforcement of those regimes have become a vital feature of the ordering of the oceans since 1982 and the 2 Arthur H. Dean, “Achievements at the Law of the Sea Conference,” Proceedings of the American Society for International Law, 1955, at p. 56; and id. “The Law of the Sea Conference 1958–60, and Its Aftermath,” in Lewis Alexander (ed.), The Law of the Sea: Offshore Boundaries and Zones [1966 LOSI Conference] (Columbus: Ohio State University Press, 1967), 244–63. Further dimensions of the colonial legacy, in regard to the resistance to imposition of norms and interest-based doctrine by the industrially advanced West, are analyzed in Seokwoo Lee, “Intertemporal Law, Recent Judgments and Territorial Disputes in Asia,” in S. Hong and J.M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Law of the Sea Institute Publication) (Leiden: Brill/Martinus Nijhoff, 2009), 119–36.

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entry into force of UNCLOS in 1994. The “post-codification era,” as Judge Tullio Treves has termed the period in which new institutions and agreements have emerged, thus holds out great promise. But an equally vital feature of the larger order of our time is the range of challenges not yet successfully addressed in law and diplomacy—specific issues such as the rules for exploitation of deepseabed genetic materials using science and technologies entirely new in their deployment and impacts, but, above all today, the formidable questions presented by climate change, the threats to biodiversity, and the manifest endangerment of both small and large ecosystems. Hence the challenge that Evensen identified as central to UNCLOS and its importance looking ahead from 1983 remains today, after the intervening years of dramatic further advances in science and technology, as to whether those advances will be mobilized to greater degree in giving impetus to policies and law that foster effective sustainability of marine resources, or instead will be mainly the instruments of ever more intensive exploitation and depletion of the Earth’s bounty. That is the large challenge, with the wide focus that is essential in any analysis of science and technology in relation to the legal order of the oceans. There is also a narrower focus, manifest in the terms (and lack of specificity in the terms that do appear) in the UNCLOS document itself, that merits brief notice: the law of marine scientific research as a discrete activity, in relation to the competing values of sovereignty of coastal states over their economic zones and of the global community in the area, i.e., the “high seas,” lying beyond national jurisdictions. From the earliest period of the debates that culminated in the signing of the UNCLOS agreement, there was division of opinion, and considerable obfuscation, as to how “scientific research” should be defined—not an easy matter, given how, to cite one example, the deployment of technologies on the seabed for archaeological research could have ramifications for military operations and seabed minerals exploration, no less than less controversial spinoff value for improvement of navigational charts.3 In Professor Proelss’ contribution to the present book is offered a vivid example of what difficult analytical problems are posed in sorting out such distinctions in the real world of oceanographic research in the newly developed area of “geo-engineering,” an area of scientific activity imposing pressures on 3  Valuable insight into the state of the discourse as of 1988 may be gained by reference to the papers in Lewis M. Alexander, Scott Allen, and Lynne Hanson (eds.), New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change (Proceedings of the 22nd Annual Conference of the Law of the Sea Institute) (Honolulu: Law of the Sea Institute, Richardson School of Law, University of Hawaii, 1988).

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the inherited legal order that could hardly have been imagined in 1982 by the negotiators who inscribed their signatures in that year on the UNCLOS document at Montego Bay.

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This book publishes a set of interrelated studies first presented as conference papers at a meeting of the Law of the Sea Institute (LOSI) at the University of California, Berkeley in late 2013, with major sponsorship and collaboration of the Korea Institute of Ocean Science and Technology (KIOST). The papers were subsequently revised by the contributors, then vetted and edited for publication here. It is especially appropriate that the conference and now the present volume should provide a forum for new research on the historic and present-day interrelationships of science, technology, and ocean law; for during the fifteen years of the UN-sponsored conferences that produced UNCLOS, the LOSI—then based at the University of Rhode Island—became a major source of scholarly analysis and international policy discourse on the issues then being debated by the diplomats fashioning the global agreement that emerged in 1982. Conferences, workshops, its Occasional Papers series, and a major series of books containing Proceedings of annual international meetings of the LOSI became widely recognized as among the most important contributors to the literature of ocean law. Many of the Proceedings volumes stand today as classics in the history of the legal discourse of the period.4

…

The Law of the Sea Institute was founded in 1965 at the University of Rhode Island and later housed at the University of Hawaii and then briefly at the University of Miami. Since 2002 it has been headquartered and administered at the School of Law in the University of California, Berkeley, as a research unit of the School. In the years since, LOSI at Berkeley has remained committed to nurturing the international outreach and participation that had been its hallmark from its founding period. In addition to the series of LOSI books published by Brill/Nijhoff as independent volumes, LOSI conference papers have appeared as web-based symposia, journal articles, and occasional papers. Issues regarding the jurisprudence of international law, technology 4  The LOSI website at www.lawofthesea.org has a listing of titles of all papers in the Proceedings series prior to 2002, together with information on each of the numerous books issued by Brill/Nijhoff as LOSI publications during subsequent years.

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and ocean science, practical diplomacy reaching every aspect of oceans uses, and economic activities in marine and coastal areas are among the problems addressed over five decades’ time in LOSI conferences and in the recent LOSIKIOST meetings and publications. The present volume carries forward this tradition, in this instance focusing on the interrelationships of science, technology, and the law of the sea. Three papers by eminent senior figures in the ocean law field open this volume, each of them treating a sub-theme of central importance to our subject. The first, by Professor Tullio Treves, distinguished scholar in international law, professor of law emeritus at the University of Milan, and former judge on the International Tribunal for the Law of the Sea (ITLOS), addresses a major contemporary issue in the adjudication of ocean law disputes: the incorporation of scientific knowledge and theory in the procedures of the International Court of Justice and, especially, of the ITLOS. Given close analysis in this chapter is how ITLOS, in its 2011 Advisory Opinion on the uses of the seabed and its 2012 judgment in the Bangladesh and Myanmar Case, addressed key issues of scientific uncertainty, bringing to the forefront of environmental jurisprudence a systematic consideration of the precautionary approach. A second major paper opening our volume is in Chapter 2, by our co-editor Professor James Kraska of the U.S. Naval War College faculty and former naval officer, and author of standard academic studies of maritime security policies and law. He presents an intriguing account of the symbiotic relationship of ocean and meteorological science to the needs, the patronage, and the operations at sea of the great naval powers from the Age of Discovery to the present. Kraska provides rich support for the view that “ocean science has had an indelible impact on ocean governance,” but that equally so that the navies of the great powers have been indispensable players in the drama of ocean science development. Professor Ronán Long, who holds the Jean Monnet Chair of European Law at the National University of Ireland at Galway, is author of the third of our major opening papers. Long’s paper establishes a context for the four interrelated chapters on ecosystem themes; his own Chapter deals with science, technology, and ocean issues in the European Union and the global oceans. Just as Professor Treves is concerned with the proper modes for integration of scientific expertise and advice in adjudicative forums, Long addresses the complexities of the comparable processes in EU policy formation, administration, and dispute resolution. At the center of a rich discussion that also embraces such wide-ranging subjects as piracy, IUU fishing, human rights, and energy security is Long’s searching analysis of ecosystem theory, law, and regulatory practice. He offers a line of analysis that is parallel to Kraska’s in regard to institutional

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developments and the cross-sector reinforcement of advancements in ocean science and technology that address opportunities and sustainability challenges in regard to marine resources and human needs. The next three chapters provide diverse perspectives on ecosystem management regimes and sustainability issues. In Chapter 4, Drs. Ruth Davis and Quentin Hanich of Wollongong University present findings from their major project on the problem of equitability in the administration of ecosystembased fisheries management programs. The authors underline the problem that management programs by their essential nature distribute benefits and costs among varied stakeholders. Drawing from two specific case studies of regional fishery management organizations (RFMOs), the authors set forth an argument for a “holistic” concept of ecosystem management that would incorporate equitability as a major objective. In Chapter 5, Professor David L. VanderZwaag, who holds the Canada Research Chair in Ocean Law and Governance at Dalhousie University, and who is author of many authoritative studies in ocean resources policy, explores the institutional and legal problems that stand in the way of effective protection of four Atlantic marine species categorized as “at risk.” He examines these issues in the context of existing scientific knowledge and the limitations of guidance that science offers to policy makers concerned with these species. Through these studies of particular species, the author identifies the range of dangers to their stocks and to the environments in which those species exist, and the problems of mounting efficacious transboundary initiatives to deal with the problems involved—matters of general significance in the realm of species management and protection, considered not only in light of scientific and technical competencies but also against the standard of international responsibilities possibilities under terms of UNCLOS and environmental law agreements. Chapter 6, by Dr. Justin Rose, a leading student of Pacific islands resources and conservation policies, and adjunct senior fellow in the University of the Pacific law faculty, provides analysis of both the objectives and plans, on the one hand, and, on the other, the various political and institutional obstacles with regard to efforts in Fiji and in the Federated States of Micronesia to implement the Nagoya Protocol. Both of these two Pacific island states have committed to the Protocol’s terms for the regulation of access to marine genetic resources and their equitable sharing, but with divergent results as of early 2015. The author also indicates the importance of coordination among local jurisdictions in such island states for the future of marine protected areas (MPAs) that can be essential complements to the Nagoya Protocol effort.

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In Part IV, we have studies by four expert researchers on varied aspects of resource challenges on and below ocean waters. Dr. Kathryn Mengerink, a marine biologist and lawyer who is founding director of the Environmental Law Institute’s oceans program, writes in Chapter 7 on the resources, potentialities, and mysteries of the deep ocean. To address effectively the problems of pollution, drilling for oil and gas to depths previously unimagined as feasible, mineral resource extraction, and other aspects of environment and uses in this fabled and still-largely-unexplored area of the planet requires, Mengerink argues, new and imaginative perspectives are needed in the design of sustainable management and of conservation regimes. In Chapter 8, Tara Davenport, of the National University of Singapore and visiting scholar in 2013–14 at Yale University, focuses on the ways in which breakthroughs in technology—in this instance fiber optics in the 1980s and then the internet in the following decade—have transformed the functions and impact of an old technology, viz., telecommunications by cables. The UNCLOS provisions regarding submarine cables were written as a regime for the protection of communications in that older era. Now, as Davenport shows, undersea cables can be used for collecting oceanographic data, with broad uses in monitoring of climate change, disaster data, and other ocean phenomena. She addresses the questions as to whether the UNCLOS regime needs to be clarified or amended, and as to how States, the scientific community, and the cable industry might need to cooperate in application of new regulatory standards and enforcement measures. Professor Maria Gavouneli of the University of Athens, author of several widely noticed works on offshore energy networks and their regulation, offers in Chapter 9 analysis of the extraordinarily complex legal, political, and economic factors that are the source of competing legal claims and some instances of diplomatic deadlock in the Eastern Mediterranean Sea area. She portrays the variety of obstacles that are confronted in the design and building of efficient facilities for resource extraction and energy distribution, identifying the principal issues that have arisen around these activities in “this ancient crossroads” ocean area, with its delicate balancing of persistent disputes in its international relationships. No matter what the potential of the scientific and engineering ingenuity, capital investment, and entrepreneurial initiatives that might hold promise of robust new development and sustainable use, the enduring influence of historic conflict, as Gavouneli shows, can overcome and frustrate the potential of such forces for a benign pattern of change. In Chapter 10, Professor Alexander Proelss, author of pioneering studies of new ocean and atmospheric technology, considers the potential of scientific

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and technological innovations in combatting the effects of climate change on health of the marine environment. He then also focuses on the critical legal question of which of the new technologies would be categorized as “scientific marine research,” with all the implications that would then be involved under terms of the UNCLOS and other international instruments, in contrast to being categorized as military or economic undertakings that would be subject to different regime rules than those applicable to scientific activities. The Gulf of Mexico is an area of intensive seabed drilling, including of course the extreme deepwater project that produced the BP disaster, and as such offers the possibility of providing models of more effective regulatory programs and technologies as the seabed extraction industries continue to develop in other ocean areas around the globe—including the newly opened ocean regions that are only now going into large-scale production, or, in the case of the South China Sea waters, potentially coming into heavy production once the present debilitating political conflicts over conflicting areal claims can be settled. Professor Richard McLaughlin, an authority on marine law and policy, and professor at the Harte Research Institute for Gulf of Mexico Studies of the Texas A&M University, examines in Chapter 11 the environmental and policy dimensions of the problem of abandoned or decommissioned offshore marine structures. His study gives attention to the wide range of risks that these structures pose for navigation, fishing activities, and the marine environment; and he reviews the terms of the U.S. policies that have addressed these problems, including on the one hand legislation to promote the development of artificial reefs based on these structural remains, and, on the other hand, more recent national policy giving priority to physical removal of such structures from their offshore sites. McLaughlin’s consideration of the technologies that must be deployed, the regulatory options, and, not least important, the local community interests and the stakeholder pressures from various commercial and recreational interests, suggest practical problems that are analogous to the equitability issues and the political dynamics that are explored in the chapters authored by Rose and by Davis and Hanich. Part V consists of four region-focused studies, each on a subject in which the involvement of science and technology, both in the past and as it opens possibilities for new advances in the future, play a significant part. Demarcating boundaries of jurisdiction at sea is one of the timeless challenges of oceansrelated science and technology, and in Chapter 12, Clive Schofield, professor and research director in the Australian National Centre for Ocean Resources and Security, and author of numerous authoritative studies in the field of marine geography, places in the fascinating context of climate change’s impact

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on the Arctic region his analysis of how a long-standing, difficult technical problem was overcome in establishing the Russian-U.S. boundary line and attendant “special area” jurisdictions in the Bering Strait/Bering Sea area. This ocean region is so vital to navigation and trade with the expected rise in transArctic Ocean vessel traffic as the ice retreat continues. Schofield looks beyond the technical geographic issue to suggest the larger challenges to technology and science that expansion of ocean uses in the Arctic will generate, ranging from need for better navigational charts and access to more complete meteorological information, to improved design and building of heavy ice strength merchant vessels, to oil spill prevention and cleanup, to search and rescue capabilities. The same set of challenges is the context—although in this instance with implications not only for environment but a way of life—confront the indigenous peoples who live on the coastal area of the Arctic Ocean. Jordan Diamond, who is academic coordinator of the Law of the Sea Institute, UC Berkeley, offers in Chapter 13, an overview of the complex, multi-layered institutional framework of national and transnational initiatives for responding to the economic changes and environmental perils that accelerating development bring for the indigenous communities. Whether, and how, these communities will be able to participate effectively in shaping the policy responses to Arctic problems is not as yet even remotely certain. Diamond discusses the mechanisms that have been devised to give voice to native interests, the problems inherent in arriving at agreement on the common interest, and the extent to which the actual governance of resource uses has been influenced up to this time by indigenous interests and participation. A claim for “voice” and concrete influence on governance regimes for the Arctic region comes at the same time from a vastly different source—the Government of China. There has been considerable academic comment recently on the emergence of an “Arctic strategy” in Chinese diplomacy, complementing the naval buildup and China’s assertion of the claims to control resources in a vast ocean area (as discussed by Joel Coito, in the chapter following). Professor Jun Zhao, of the Institute of International Law in Zhejiang University, contributes in Chapter 14 toward clarification of the bases and objectives of China’s to recognition of its asserted interests in Arctic governance and claims for a stronger formal role in setting policies for navigation and seaborne trade, fishing, safety, and environmental regulation. As in the other studies in Part V, Zhao’s analysis of legitimacy of China’s rests on the premise that climate change, in combination with increasing deployments of capital, technology, and naval power, will bring accelerating economic activity

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and new environmental problems to must be confronted in the Arctic region. He sees Chinese involvement in international scientific activities as a key element in China’s strategy for gaining a strong voice in the larger framework of Arctic governance. Lieutenant Joel Coito, a lawyer and officer of the U.S. Coast Guard, writes in Chapter 15 on the historical background, diplomatic conflicts, dangerous confrontations at sea, and the recent initiation of a dispute settlement process that comprise the history of the conflicting claims to the Scarborough Reef. His recounting of this important episode in contemporary oceans history illustrates vividly the problematics of enforcement of UNCLOS rules and general principles. The basic issue of how an island is to be distinguished from a rock is a vexed subject, involved in numerous disputes globally during the years since UNCLOS was signed; and it has been intensively analyzed by important scholars, including Judge Choon-ho Park, Jon Van Dyke, John Briscoe, Yannhuei Song, and Jon Charney as well as others students of ocean law who are based in Chinese academic centers and have written specifically on the South China Sea claims. Coito’s paper provides a systematic review of the legal literature and the opposed diplomatic positions in play as the Scarborough Reef question has been placed before an arbitral panel under the terms of UNCLOS dispute resolution system—against China’s objections, and in the face of the Chinese government’s refusal to accept the panel’s jurisdiction or to participate in the deliberations. Whatever the merits of the conflicting claims of the two States in this confrontation, there is a greater significance in the implicit threat to the integrity of the UNCLOS structure for resolving questions of this magnitude that is involved. That structure, including ITLOS and the alternative procedures for dispute resolution that UNCLOS provided, was heralded in 1982 as one of the most important features of the Convention in its potential for advancing the basic purposes of peaceful use and development of the oceans. The study of illegal, unreported and unregulated (IUU) fishing issues in Chapter 16, by Stuart Kaye, professor in Wollongong University and former Law Faculty dean in the University of Western Australia, provides an analysis of variations in institutional arrangements and their relative effectiveness in the efforts of multilateral management organizations to combat IUU fishing, which even this era of climate change threats still remains probably the single most dangerous threat to the health of global fish stocks. Squarely at the forefront of Kaye’s analysis of the several agreements operations that he studies are the deployments of the timeless techniques of stopping and boarding, seizures of cargo, and prosecution of violators. Science and technology are implicitly engaged in the management design and the operations at sea of the multinational and bilateral agreements in question—whether in their provisions for

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jointly conducted scientific research, for scientific assessment of fish stocks and their population dynamics, or for the mobilization of surveillance technologies for tracing of the movements and operations of fishing vessels. (Also prominently in use today, in the global movement for control of IUU fishing, is the technology of DNA analysis for identification of fish landings as to the legitimacy of their origin in the original harvest operations at sea.) The record of the varied institutional strategies and structures in the efforts to combat IUU operations is a potent reminder of how essential are robust organizational and procedural agreements if the full potential of scientific research and technological advances are to effectively mobilized in the interests of sustainable use of living marine resources. Our final chapter is “A Remembrance of Stefan Riesenfeld,” one of the giants of international law studies and a central figure beginning in the late 1930s in the global discourse on ocean law and policy in particular. The author, attorney John Briscoe of San Francisco, is an especially qualified commentator on Professor Riesenfeld’s scholarship and his teaching. Briscoe worked closely with him in LOSI conference organization and editing more than thirty years ago, and he has continued to participate in all aspects of the Institute’s work, both throughout the Institute’s years at the University of Hawaii period and during the last dozen years, as Distinguished Fellow in LOSI at Berkeley. It is of special significance to LOSI that Professor Riesenfeld, given his long years of service on the UC Berkeley law faculty—and given the influence he exerted not only through his writings, but by his teaching of generations of students who went on to distinguished careers in international law—should be memorialized, as Briscoe does, in a spirit of affection and with deep admiration, no less than for a recognition of the extraordinary range and depth of his scholarship. When the LOSI headquarters was moved to our Law School at UC Berkeley, Professor David Caron and I were named as co-directors of the Institute; we both were, and remain, profoundly indebted to Stefan Riesenfeld for his mentoring, friendship, and exemplification of the highest scholarly standards.5 Among Riesenfeld’s most influential insights in his initial writings in the late 1930s on the law of coastal fisheries was his recognition of how future advances in technology and science potentially could make it possible for the community of nations to cooperate in the sustainable management of global fisheries 5 Professor Caron, after serving as president of the American Society for International Law, left Berkeley in 2013 to take up his current position as Dean of the Dickson Poon School of Law, Kings College, London. He continues, as Distinguished LOSI Fellow, in his association with LOSI in several regards, most lately in the newly published revised edition of The Oceans in the Nuclear Age: Legacies and Risks (D.D. Caron and H.N. Scheiber, eds., Brill/Nijhoff, 2014).

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resources. He regarded it as an essential interim measure, however, that coastal state jurisdiction needed to be extended beyond the traditional three to nine mile limits then held sacred by the naval superpowers, as a way of protecting global fish stocks until the kind of cooperative regime he anticipated could be achieved under a reformed law of the sea. Hence it may be plausibly imagined that, had he lived to add this book to his office library, Professor Riesenfeld would have been gratified to see the diligence and insightfulness with the issues on which he broke new conceptual ground are being addressed in today’s scholarly community, as is shown by the work represented in this book.

Part 1 Adjudication

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Chapter 1

Law and Science in the Jurisprudence of the International Tribunal for the Law of the Sea Tullio Treves

Scientific Terms and Concepts in UNCLOS

The provisions of the United Nations Convention on the Law of the Sea (UNCLOS) contain a number of references to scientific notions. For instance: article 119 provides that States whose vessels fish on the high seas shall take measures “on the best scientific evidence available.” Thus article 1(4), in defining pollution, utilizes terms drawn from the vocabulary of science in referring to the “deleterious effects as harm to living resources and marine life,” and to “impairment of quality for use of seawater”; article 194, paragraph 5, similarly refers to “rare or fragile ecosystems.” And article 76, in defining conditions for extending the outer limits of the continental shelf beyond 200 nautical miles, uses scientific notions or technical terms such as “slope,” “rise,” “sedimentary rocks,” “oceanic ridges,” “submarine ridges,” “submarine elevations,” “plateaux,” “caps,” “banks,” and “spurs.”1 As the jurisdiction of the dispute-settlement bodies provided for in Part XV of UNCLOS—the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and arbitral tribunals—concerns cases that address the application and interpretation of the Convention, these adjudicating bodies may be called to interpret the terms of the Convention referring to scientific notions. Questions on which scientific notions are relevant may also arise when scientific terms contained in UNCLOS are not explicitly under discussion. In the Southern Bluefin Tuna cases submitted to ITLOS, for example, the Tribunal considered whether a Japanese experimental fishing program had the effect

* Tullio Treves, Professor of International law, The State University of Milano, Judge of the International Tribunal for the Law of the Sea (1996–2011). Senior Public International Law Consultant, Curtis, Mallet Prevost, Colt & Mosle, LLP., Milan. 1  See D. Anderson, “Scientific Evidence in Cases under Part XV of the LOSC,” in Law, Science and Ocean Management, eds. M.H. Nordquist, R. Long, T.H. Heidar, and J.N. Moore (Leiden/ Boston: Brill/Martinus Nijhoff 2007), 505–518.

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of endangering a certain fish stock.2 Similarly, in the Land Reclamation Case between Malaysia and Singapore, the main point of contention was whether a land reclamation project would have a negative impact on the environment of a neighboring country.3

Resort to Experts for Scientific Matters

UNCLOS does not ignore the possibility that disputes “involving scientific or technical matters” arise in cases submitted to adjudication under its provisions concerning the settlement of disputes. Under article 289: In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or propio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court or tribunal but without a right to vote.4 In an essay on fact-finding before the ICJ, Shabtai Rosenne saw this article as an important innovation through which “the concept of enlisting qualified scientific experts in a binding decision-making process has been introduced into modern international law.”5

2  The Southern Bluefin Tuna case between New Zealand and Australia and Japan, Order on provisional measures of 27 August 1999, ITLOS Reports 1999, 280. 3  Case concerning Land Reclamation by Singapore in and around the Strait of Johor, Order on provisional measures of 8 October 2003, ITLOS Reports 2003, 10. 4  This provision is applicable in cases before all the dispute-settling bodies that may be called to exercise compulsory jurisdiction under UNCLOS: in light of article 287, not only ITLOS but also the ICJ and arbitral tribunals. However, ITLOS has added procedural details in Article 15 of its Rules (commented by D. Nelson, in The Rules of the International Tribunal for the Law of the Sea, A Commentary, eds. P. Chandrasekhara Rao and Philippe Gautier (Leiden/ Boston: Brill/Martinus Nijhoff, 2006), 38). These of course apply only when the adjudicating body having jurisdiction is ITLOS. In case the ICJ has jurisdiction, the rules concerning the appointment of “assessors” under Article 30, paragraph 2, of the Statute will in all likelihood apply as far as they are compatible with Article 289. Arbitral tribunals under Annex VII may provide in their own rules of procedure or by ad hoc decisions. 5 S. Rosenne, “Fact-finding before the International Court of Justice,” in S. Rosenne, Essays in International Law and Practice (Leiden/Boston: Brill/Martinus Nijhoff, 2007), 235–250, at 245.

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As a matter of fact, the practice of courts and tribunals called upon to settle disputes on the basis of the jurisdictional provisions of UNCLOS—which for the time being have been only ITLOS and arbitration tribunals—to date shows no instance of utilization of article 289. One may wonder why ITLOS and Annex VII arbitration tribunals have not utilized article 289, notwithstanding its innovative character as emphasized by Rosenne. The reason seems to me that the scientific or technical experts as envisaged in article 289 are too close to being judges or arbitrators: they sit with the tribunal and are to be drawn from the lists set out in Annex VIII for selecting specialized arbitrators, who should have not only technical, but also legal, expertise.6 This status may be a source of discomfort for the judges or arbitrators who have the responsibility of settling the dispute. Moreover, the fact that the experts under article 289 are to be no fewer than two, and must be selected in consultation with the parties, may cast some doubt as to their effective independence; for it is likely that one expert will be (or will be perceived to be) closer to the position of one party and the other expert to that of the other party. Even outside the framework of article 289, until now ITLOS and Annex VII arbitral tribunals have made only moderate resort to scientific experts. These experts in most cases have been called as witnesses by one party and submitted to cross-examination by the other. In the Southern Bluefin Tuna case before ITLOS, for example, a scientific expert was presented as a witness by New Zealand and Australia. After going through the voir dire procedure to test the expert’s eligibility, the expert was examined and cross-examined.7 In the Land Reclamation case, an expert was called as such by Malaysia and examined and cross-examined, and then another expert of Malaysia made a statement as a member of the country’s defense team. This situation gave rise to difficulties in light of the fact that an expert pleading as an advocate cannot be crossexamined by the other party. The difficulty was overcome in consultations, held immediately before the statement, between the President of the Tribunal and the Agents of the parties. The result was that, after making her statement, the member of the Malaysian defense team had to make the solemn declaration that article 79(b) of the Rules of the Tribunal requires experts to make 6 Legal competence is mentioned as a requirement for experts to be included in the lists from which members of special arbitral tribunals are to be drawn. UNCLOS, Annex VIII, Article 2, para. 3. 7  Order of 27 August 1999, quoted at note 2, para. 25. ITLOS, Pleadings, Minutes of Public Sittings and Documents, 1999, vol. 4, at 383–404, record of the sitting of 18 August 1999 at 10am, available via www.itlos.org.

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before delivering any statement. Consequently, she could be examined as an expert by counsel of Singapore.8 In the Guyana-Suriname Maritime Delimitation case the arbitral tribunal established under Annex VII of UNCLOS designated an independent expert to examine archival documents, whose production was requested by one party, in order to determine whether certain documents could be disclosed in light of a legitimate interest of the other party not relating to the dispute.9 The Tribunal also appointed an expert in hydrography to assist it.

ICJ and ITLOS Reluctance to Examine Scientific Questions?

The ICJ has been reluctant to engage in the examination of scientific questions arising in cases submitted to it. Students of oceans law may recall the ICJ 1985 Judgment in the Libya/Malta continental shelf case. There, the Court, in light of the distance criterion adopted by UNCLOS in order to define the external limit of the continental shelf within 200 nautical miles—and with unexpressed but obvious relief, stated: “There is no reason to ascribe any role to geological or geophysical factors within that [200nm] distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.”10 The Court, therefore, avoided making an assessment of the substantial scientific arguments and evidence submitted by the parties. In 2010, the Joint Dissenting Opinion of Judges Al-Kasawneh and Simma in the Pulp Mills on the River Uruguay case between Argentina and Uruguay11 eloquently illustrates that many disputes submitted to international courts and tribunals involve questions of science. The ICJ is reluctant to utilize the means at its disposal under its Statute and Rules, in particular the use of experts under 8  Order of 8 October 2003, quoted at note 3, para. 20. Before giving the floor to Professor Sharifah of the Malaysian delegation, the President of the Tribunal stated: “Pursuant to the decisions taken during the consultations held this morning with the Agents of the parties, it was agreed that Professor Sharifah would first make a statement as a member of the delegation of Malaysia. Thereafter, she will be examined by the Respondent as an expert. For this purpose, before being examined by the Respondent, Professor Sharifah will make a solemn declaration provided for under Article 79(b) of the Rules of the Tribunal.” ITLOS/PV03/01, verbatim record of the sitting of 25 September 2003, at 10am, at 25, available via www.itlos.org. 9  Award of 17 September 2007, 47 ILM 166 (2008), especially Orders No. 1, para. 47, and No. 3, para. 62. 10  Continental Shelf (Libyan Arab Jamahiria/ Malta) Judgment, ICJ Reports 1985, 13 ff, para. 39. 11  Dissenting Opinion to the Judgment of 20 April 2010, ICJ Reports 2010, 14, 108 ff.

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article 50 of the Statute.12 The Joint Dissenting Opinion also shows that other international adjudicating bodies, in particular the dispute-settlement bodies established within the framework of the World Trade Organization, have been much less reluctant to use experts. In doing so, they “contributed to the development of a best practice of readily consulting outside sources in order better to evaluate the evidence submitted.”13 In the Judgment of 31 March 2014 on the Whaling in the Antarctic case14 the Court did not rely on article 50 of the Rules, and so did not appoint an expert of its own. Perhaps mindful, however, of the observations of Judges Al-Kasawneh and Simma, as emerges from the Judgment and from questions submitted by Judges, the Court devoted serious attention to the experts presented as witnesses by the parties—especially so as regarded the notion of “scientific research” and “scientific purposes” as set out in the texts whose interpretation was key in the case. The Court was careful in noting points on which experts presented by the opposing parties agreed,15 or on which the opinion of on one party’s expert was “not refuted” by the other party,16 and those on which the experts disagreed.17 It was attentive to distinguish scientific notions from interpretation of terms contained in legal texts. The latter, it stressed, was a task of the Court.18 It is difficult to say whether the criticism of the ICJ’s reluctant attitude towards scientific questions by Judges Al-Kasawneh and Simma in the Pulp Mills case also applies to ITLOS, as the Tribunal has not yet had the opportunity to deal with the kind of scientific arguments put forward in that case. While it is true that, similar to the practice of the ICJ illustrated in Judges’ Al-Kasawneh and Simma’s dissenting Opinion in the Pulp Mills case and in Rosenne’s article, scientific information was never used by ITLOS as the decisive argument in a case in favor of one party, a more open attitude emerges 12  Similar points are made by S. Rosenne, “Fact-finding before the International Court of Justice,” to which Judges Al-Kasawneh and Simma refer. 13  Dissenting Opinion to the Judgment of 20 April 2010, para. 16. 14  Whaling in the Antarctic, Australia v. Japan, New Zealand intervening, Judgment of 31 March 2014, available at www.icj-cij.org. 15  Ibid., para 85. 16  Ibid., para 190. 17  Ibid., paras 134–135. 18  Ibid., para 86: “The Court observes that, as a matter of scientific opinion, the experts called by the Parties agreed that lethal methods can have a place in scientific research, while not necessarily agreeing on the conditions for their use. Their conclusions as scientists, however, must be distinguished from the interpretation of the Convention, which is the task of this Court.”

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from the jurisprudence of the Tribunal. This observation may be seen in connection with the consideration by the Tribunal of arguments concerning the precautionary principle, and, even more so, in the Judgment of March 14, 2012 on the dispute between Bangladesh and Myanmar on the delimitation of maritime areas in the Bay of Bengal.

Scientific Information and the Precautionary Approach before ITLOS

Scientific information, as made available to the Tribunal, has been considered sufficient in order to determine that there was “scientific uncertainty” on the matter submitted to it. In its Order prescribing provisional measures on the Southern Bluefin Tuna case, the Tribunal considered that “there is scientific uncertainty regarding measures to be taken to conserve the stock of the Southern Bluefin Tuna,” and that “the Tribunal cannot conclusively assess the scientific evidence presented by the parties.”19 On the basis of such uncertainty, and in light of the fact that the parties agreed that the bluefin tuna stock was “severely depleted,” and, further, that this was a case for “serious biological concern,”20 the Tribunal found that “measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern Bluefin tuna stock.”21 This approach of the Tribunal can be characterized as “precautionary” (as hinted at by its specifying that the parties “should in the circumstances act with prudence and caution”).22 ITLOS utilizes scientific information at least to a degree sufficient for concluding that the information is uncertain, so that something must be done in order to avoid the consequences of scientific findings that might inspire actions leading a risk of greater danger. Similarly, in the Land Reclamation case, while not relying explicitly on any of the technical and scientific arguments put forward by the parties, the Tribunal stated: “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment.”23 In light of such risks, prudence and caution required that the two parties establish mechanisms for assessing the threat entailed by 19  20  21  22  23 

Southern Bluefin Tuna case, 27 August 1999, paras. 79, 80. Ibid., para. 71. Ibid., para. 80. Ibid., para. 77. Case concerning Land Reclamation by Singapore, 8 October 2003, para. 96.

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Singapore’s land reclamation. In consideration of this, the Tribunal prescribed, as a provisional measure, that the parties establish “a group of independent experts,” who had a precise mandate to explore the effects of Singapore’s land reclamation and were authorized to propose measures to address any potential adverse effects. The expert group was established, and its report and proposals were adopted by the parties in a Settlement Agreement, which, upon instructions of the parties, was incorporated in the award of the competent Annex VII arbitral tribunal.24 Again, the scientific information provided to the Tribunal was not considered as decisive, but rather was regarded as sufficient for adopting a prudent (or precautionary) approach. In this case, the finding also justified the adoption by the Tribunal of a binding provisional measure requiring the parties to resort jointly to scientific and technical expertise. The relevance of the precautionary approach in international law is underlined by the Seabed Disputes Chamber of ITLOS in its Advisory Opinion of February 1, 2011. The Opinion states that various elements of practice have “initiated a trend towards making this approach part of customary international law.”25 Acceptance of this approach seems to correspond to the degree to which courts and tribunals, especially ITLOS, are ready to rely on scientific information.

Law and Science in the Bangladesh/Myanmar Delimitation Case

In the ITLOS Judgment in the case Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Gulf of Bengal on March 14, 2012, the relationship between law and science was at the heart of the discussion leading to the decision whether the Tribunal could delimit the continental shelf beyond the 200 nautical miles limit. This discussion was intertwined with that of the roles to be played in a dispute concerning the interpretation and application of article 76 of UNCLOS by the Commission on the Limits of the Continental Shelf (CLCS or Commission) and by ITLOS. The first issue to be solved was whether the Tribunal had jurisdiction to decide on the delimitation of the continental shelf beyond the 200 nautical 24  Case concerning Land Reclamation by Singapore in and around the Strait of Johor, Malaysia v. Singapore, Award on Agreed Terms, The Hague, 1 September 2005, available via www .pca-cpa.org. 25  Advisory Opinion on Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, ITLOS Reports 2011, at 10, paras. 125–37, especially 135.

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mile limit, in light of the fact that article 76, paragraph 8 of UNCLOS states that the external limit of the continental shelf adopted by the coastal State is “final and binding” only if it is “established on the basis” of the recommendations of the CLCS. The Tribunal states at the outset that its role and that of the Commission (together with that of the Authority) are “complementary to each other so as to ensure coherent and efficient implementation of the Convention.”26 In particular, the Commission “plays an important role under the Convention and has a special expertise which is reflected in its composition.”27 Furthermore, “Article 2 of Annex II to the Convention provides that the Commission shall be composed of experts in the field of geology, geophysics or hydrography.”28 The Tribunal was aware that the Commission had decided to abstain from making recommendations in cases in which there is a pending issue of delimitation unless the parties to the dispute give their prior consent, and that, in the case of the submission of Myanmar, Bangladesh had submitted an objection. So, in the view of the Tribunal: The consequence of these decisions of the Commission is that, if the Tribunal declines to delimit the continental shelf beyond 200 nm under article 83 of the Convention, the issue concerning the establishment of the outer limits of the continental shelf of each of the Parties under article 76 of the Convention may remain unresolved.29 The Tribunal not only decided that it had jurisdiction, but that it was dutybound to exercise it in light of the roles the two bodies exercise within the framework of the Convention, so that a “decision by the Tribunal not to exercise its jurisdiction over the dispute relating to the continental shelf beyond 200 nm would not only fail to resolve a long-standing dispute, but also would not be conducive to the efficient operation of the Convention.”30 It would be contrary to the object and purpose of the Convention not to resolve the existing impasse. Inaction in the present case, by the Commission and the Tribunal, two organs created by the Convention to 26  Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment of 14 March 2012, para. 373. 27  Ibid., para. 375. 28  Ibid., para. 375. 29  Ibid., para. 390. 30  Ibid., para. 392.

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ensure the effective implementation of its provisions, would leave the Parties in a position where they may be unable to benefit fully from their rights over the continental shelf.31 The second question the Judgment answered concerned the ascertainment of entitlements to the continental shelf areas beyond 200 nm in light of how, in the words of the Tribunal, “[d]elimitation presupposes an area of overlapping entitlements.”32 The Tribunal underlines the distinction between the notion of entitlement to the continental shelf and that of delineation of its outer limits. While the latter may be established as “final and binding” by the coastal State33 only if it does so on the basis of the recommendations of the CLCS, this does not imply that entitlement to the continental shelf depends on any procedural requirements. As stated in article 77, paragraph 3, of the Convention, “[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.”34 The determination of entitlement on the continental shelf beyond the 200 nm limit requires interpreting article 76 of UNCLOS. It is with respect to this task that the Judgment sets out important remarks about the relationship between legal and scientific questions and about the importance of scientific evidence submitted to the Tribunal. The general view of the Tribunal on its role (and on that of the CLCS) in interpreting article 76 is stated in paragraph 411 of the Judgment as follows: The Tribunal’s consideration of whether it is appropriate to interpret article 76 of the Convention requires careful examination of the nature of the questions posed in this case and the functions of the Commission established by that article. It takes note in this regard that, as this article contains elements of law and science, its proper interpretation and application requires both legal and scientific expertise. While the Commission is a scientific and technical body with recommendatory functions entrusted by the Convention to consider scientific and technical issues 31  Ibid., para. 393. 32  Delimitation of the Maritime Boundary between Bangladesh and Myanmar, 14 March 2012, para. 397. 33  It is interesting to note that the Tribunal, accepting the view of the majority of scholars, considers “final and binding” as equivalent to “opposable” to other States and not only as unchangeable by the coastal State. See ibid., para. 407. 34  Ibid., para. 408.

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arising in the implementation of article 76 on the basis of submissions by coastal States, the Tribunal can interpret and apply the provisions of the Convention, including article 76. This may include dealing with uncontested scientific materials or require recourse to experts. Developing these points, the Tribunal underlines that as the “question of the Parties’ entitlement to a continental shelf beyond 200 nm raises issues that are predominantly legal in nature, the Tribunal can and should determine entitlements of the Parties in this particular case.”35 Bangladesh’s main argument was that Myanmar’s claim to a continental shelf beyond 200 nautical miles failed to meet the requirement of “natural prolongation” of the continental margin, as set out in article 76, paragraph 1, as scientific evidence proved the existence of a geological discontinuity in front of the coasts of Myanmar. In the view of Myanmar, however, such discontinuity was irrelevant because no test of natural prolongation is provided for in article 76. In its view, “the physical extent of the continental margin, that is to say its outer edge, to be identified in accordance with article 76, paragraph 4, of the Convention,” is determinative of the entitlement of the coastal State.36 The Tribunal accepts this contention of Myanmar and interprets article 76 accordingly: the Tribunal is of the view that the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose.37 As the notion of the continental margin and the application of article 76, paragraph 4, “require[s] scientific and technical expertise,”38 and “notwithstanding the overlapping areas indicated in the submissions of the Parties to the Commission,” the Tribunal 35  36  37  38 

Ibid., para. 413. Ibid., para. 420. Ibid., para. 437. Delimitation of the Maritime Boundary between Bangladesh and Myanmar, 14 March 2012, para. 431.

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would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question.39 ITLOS found, however, that there was no such significant uncertainty because it had before it what it had called “uncontested scientific materials.” These consisted of “the experts’ reports submitted by Bangladesh during the proceedings, which were not challenged by Myanmar.” On the basis of such evidence the Tribunal considered it possible to state that: the sea floor of the Bay of Bengal is covered by a thick layer of sediments some 14 to 22 kilometres deep originating in the Himalayas and the Tibetan Plateau, having accumulated in the Bay of Bengal over several thousands of years.40 The Tribunal added that it was not convinced by the arguments of Bangladesh that Myanmar has no entitlement to a continental shelf beyond 200 nm. The scientific data and analyses presented in this case, which have not been contested, do not establish that Myanmar’s continental shelf is limited to
 200 nm under article 76 of the Convention, and instead indicate the opposite.41

The Judgment of March 14, 2012 as a Precedent?

The need to interpret article 76 has made it unavoidable for ITLOS (as it would probably happen for other adjudicating bodies competent under UNCLOS) to draw the line between legal and scientific questions posed by the article, and between its role and that of the CLCS. The Tribunal has looked at the issues within the framework of the importance of coordination between the different bodies, in particular itself and the CLCS, which is established by UNCLOS and is meant to ensure the efficient functioning of the Convention.42 In this way it has been able to indicate that 39  40  41  42 

Ibid., para. 443. Ibid., para. 444. See also para. 446, which refers to “uncontested scientific evidence.” Ibid., para. 448. This “institutional” outlook adopted by the Tribunal as to the relationship between ITLOS and the CLCS may be considered similarly inspired as that of the Seabed Disputes

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ensuring the possibility that coastal States enjoy fully their rights on the continental shelf is one of the objects and purposes in light of which the Convention must be interpreted. What about the likely impact, as precedent, in this regard, of the judgment in the case between Bangladesh and Myanmar? It would seem that the interpretation of article 76 as regards the concept of natural prolongation, and the determination of the different roles of the Tribunal and of CLCS should have a great influence on courts and tribunals in their examination of these questions in the years to come. In other words, on these issues, the judgment should, in my view, be considered as an authoritative statement of the law. On another aspect of the judgment, however, the decision is based on a very narrow factual and legal ground, namely, the existence of uncontested scientific evidence. Such existence permitted to the Tribunal to take a decision overcoming the hesitation it would have otherwise had in light of the outer edge requirement. This approach permits us to envisage some questions that raise doubts about the value of this judgment as a precedent, even if the term is not used as in the doctrine of stare decisis, but only as an authoritative statement of the law. First, would another tribunal accept the criteria adopted to consider certain scientific evidence presented by one party and not contested by the other party automatically as “uncontested scientific evidence”? Second, even if these criteria were accepted, we may envisage a case in which ITLOS would not have at its disposal uncontested scientific evidence of the existence of a thick layer of sedimentary rocks covering practically the entire contested area beyond 200 nautical miles, or, in any case, of the existence of a continental shelf to be delimited beyond 200 nautical miles. In such a case, would the Tribunal (or another adjudicating body) refuse to extend beyond 200 nm the delimitation line adopted within the 200 nm limit? Third, what about the Tribunal’s arguments against a refusal to act in a situation in which the CLCS remains idle awaiting the settlement of the maritime boundary dispute? Would these arguments remain valid if uncontested scientific evidence were missing?

Chamber as regards the relationships between the Chamber in its advisory function and the International Seabed Authority. Advisory Opinion on Responsibilities and obligations of States, para. 26.

Part 2 An Historical Overview

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Chapter 2

From the Age of Discovery to the Atomic Age: The Conflux of Marine Science, Seapower, and Oceans Governance James Kraska Introduction Historically, the oceans have had four historic attributes for humankind. Civilizations have used the oceans as a natural resource—what today is broadly called, “natural capital,”1 as a medium of transportation, trade, and exchange, for dominion and political power,2 and to conduct science, spread information, and share ideas.3 Each of these dimensions has a distinct story woven into the human experience. Mariners have looked to the sea for food and other resources and used the oceans as efficient and safe avenues of trade. Coastal communities often regarded the seas a source of vulnerability, while maritime powers used the oceans as the world’s largest maneuver space to strategic advantage. English settlements, for example, were exposed to Viking raiders for centuries, but turned their position on the North Atlantic Ocean into a benefit in the era of British sea power.

* Dr. James Kraska is Professor, Stockton Center for the Study of International Law, U.S. Naval War College, Distinguished Fellow, Law of the Sea Institute, University of California at Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law. 1  Robert Costanza and Herman E. Daly, “Natural Capital and Sustainable Development,” Conservation Biology 6:1 (March 1992), 37, 38–40. 2  Radio Address Delivered by President Franklin Delano Roosevelt from Washington, D.C., September 11, 1941, Department of State Bulletin, V, 193, in Peace and War: United States Foreign Policy 1931–1941 (Washington, D.C.: U.S. Government Printing Office, 1943), 737–743 (“To be ultimately successful in world mastery, Hitler knows that he must get control of the seas. He must first destroy the bridge of ships, which we are building across the Atlantic, over which we shall continue to roll the implements of war to help destroy him and all his works in the end. He must wipe out our patrol on sea and in the air. He must silence the British Navy.”). 3  Geoffrey Till, Seapower (New York: Routledge, 2nd ed., 2009), 23.

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Maritime states, and naval powers more specifically, have been principal actors in “making the most” of the four attributes of the sea.4 These nations have been adept at using the maritime commons for trade, to share ideas and culture, and in pursuit of geostrategic goals. This chapter, however, looks at the fourth historic attribute of the oceans as a medium for development and the spread of science and technology, and the role of navies in the progress of marine scientific research. The role of sea power in the development of science and technology may be traced at least to the emergence of transcontinental fleets in the High Middle Ages, and the influence of sea power on marine science continues to the present. This is a complex and necessarily interdisciplinary story, and recounting the political and cultural foundations of the major maritime powers reminds us that the course of marine science and international maritime law are products of 500 years of social construction. Early mariners were completely mystified by the tyranny of time, distance, and space associated with the unexplored world. Although they already understood that the planet was round, the fear of what lay beyond historical reach and memory evoked a palpable and visceral fear. Explorers, and especially their crews, fully expected to encounter strange creatures and inhuman grotesques on their voyages to distant seas, such as six-armed men. Despite these misgivings, and through great hardship and often shocking loss of life, early modern naval powers edged progressively farther from familiar shores. These intrepid explorers were brave souls—once they left the envelope of civilization, they were completely on their own in a strange and dangerous world. Portugal and Spain led these expeditions in the early modern period, and they turned to science to help them succeed. The scientific culture and penchant for precise measurement in the fifteenth century later made early modern European navies “the spearhead of Enlightenment” in the late sixteenth century.5 Other cultures, namely the Nordic Vikings and the Polynesians, made deep-sea voyages long before Spain and Portugal. The earliest indirect evidence of long-distance seafaring is of the native islanders of the Indo-Pacific that occurred beginning in about 3,500 BC.6 The Polynesians sailed outriggers on virtually infinite stretches of 4  Ibid. 5  N.A.M. Rodger, “Navies and the Enlightenment,” in Science and the French and British Navies, 1700–1850, ed. Pieter van der Merwe (Greenwich, U.K.: National Maritime Institute, 2003), 5. The volume contains selected papers of the 8th Anglo-French Naval Historians’ Conference, held at the National Maritime Museum, Greenwich, 30 April to 3 May, 2001. 6  Atholl Anderson, et al., “Prehistoric Maritime Migration in the Pacific Islands, an Hypothesis of ENSO Forcing,” The Holocene 16:1 (2006), 1 (maritime technology during the late-Holocene

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the Pacific Ocean in one of the most rapid and extensive early migrations.7 Similarly, the Vikings ventured into North America, and established settlements in Greenland, and most likely, present-day Canada.8 Polynesian colonialism throughout the mid-Pacific Ocean endured, but the island civilizations were limited to a subsistence existence. In time, Viking colonies likewise failed to take root in the New World, and they faded from memory. Dynastic China also made transcontinental voyages. Immense “treasure fleets” of Admiral Zheng He (1371–1433) were legendary diplomatic and trading expeditions. In 1409, Admiral He left a stele inscribed in Chinese, Tamil, and Persian at Galle, Sri Lanka, a testament to Chinese seafaring and exploration. The stele was not discovered until 1911, when the provincial engineer, S.H. Thomlin, saw it lying face down in a culvert and sent it to the museum in Colombo.9 While the treasure fleets were a marvel, Zheng He’s expeditions from China to Arabia and as far as Mogadishu traveled well-known Arabic routes. China did not maintain its maritime presence, however, and turned inward. Despite these audacious early campaigns, none went as far, nor had the impact on the world, as did those of the European explorers. The European efforts were an immediate outgrowth of the new thinking of the cultural and scientific revival of the Renaissance. Recovering the ancient Greek and Roman curiosity of nature, Renaissance scholars ventured beyond the spiritual realm and begin to dissect the physical world. Applied mathematics and astronomy were used to measure the earth, and to “master space and time.”10 The Catholic seafaring explorers were at the vanguard of this intellectual reawakening.

migration matches periods of reversal in wind direction toward the Westerlies, as inferred from the millennial-scale history of El Nino-South Oscillation (ENSO)). 7  Scott M. Fitzpatrick, “Exploration and Discovery,” in Encyclopedia of Islands, eds. Rosemary Gillespie and David Clague (Berkeley: University of California Press, 2009), 276–277. See also Alastair Couper, Sailors and Traders: A Maritime History of the Pacific Peoples (Honolulu, HI: University of Hawaii Press, 2009), Ch. 2. 8  “Viking Ruins Found,” The Science News-Letter 84:20 (November 16, 1963), 306 (Norse settlement found in Newfoundland that dates to 500 years before Columbus’ voyage to the New World). See also J.M. Mancini, “Discovering Viking America,” Critical Inquiry 29:4 (Summer 2002), 868–907, and Heather Pringle, “Vikings and Native Americans,” National Geographic (November 2012), 80–9 (between the years 989 and 1020, Viking seafarers landed on Newfoundland shore and built a community). 9  Norah Roberts, Galle: As Quiet as Asleep (Galle, Sri Lanka: Norah Roberts, 1993), 4, and Richard Hall, Empires of the Monsoon: A History of the Indian Ocean and Its Invaders (London: Harper Collins, 1996), 80, 92. 10  Hall, Empires of the Monsoon, 80, 92.

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Naval architecture provided the means to travel farther than humans ever had dreamed. The vast stretches of the ocean became accessible only with the transition from oar to sail. The oared galley changed very little over the course of 2,000 years, severely limiting the reach and endurance of ocean explorers. Galleys hugged the shore and rarely spent night at sea. The hulls were unsuitable for deep-ocean voyages. Their limited cargo and the physical needs of rowers for food and especially fresh water meant it was impossible to be at sea in a rowed galley for more than a few days at a time. The shortage of labor for rowing due to recurrent plagues during the 14th century lingered for 150 years. The loss of population made it difficult to fill the galleys with sufficient manpower, further driving the shift from oar to sail. In the High Middle Ages, breakthroughs in naval architecture toward all sail ships, and advances in naval medicine that kept crews healthy during long voyages, extended ship endurance far beyond the limits of oared vessels. Sail propulsion was a technological breakthrough on the order of the plow, since it bypassed the bottleneck in human energy that impeded the rowed galley, and replaced muscle with inanimate power.11 Crews became dramatically smaller, reducing the necessary supplies of food and water carried on board. Sailing vessels were less maneuverable than oared galleys, and they were slower in the attack, so adoption of all sail ships occurred mostly outside the Mediterranean. Galleys were slower on the open ocean, and they could make little time if the rowers were battered by the elements. The sail never rests. The sail was not enough, however, to complete the transformation. The advent of heavy cannon, which were too burdensome for oared galleys, completed the transition. Already a staple of siege warfare on land, heavy cast guns permitted the projection of firepower at sea. With galleys, war at sea was essentially a floating version of armed clashes on land. Galleys would close on the enemy and board to fight hand-to-hand to subdue them. The introduction of cannons on ships, however, made vessels rather than individual soldiers the implements of naval war.12 The reach of the ship’s cannon was measured by a cannon ball that could travel several miles; the power of man extended but a few hundred yards, propelling the tip of an arrow. The trends in warship and cannon development were complemented by the profusion of astronomic navigational skills, more accurate use of the compass,

11  Carlo M. Cipolla, Guns, Sails, and Empires: Technological Innovation and the Early Phases of European Expansion, 1400–1700 (Manhattan, Kansas: Sunflower University Press, 1965), 81. 12  Ibid., 74–75

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and navigational acumen for deep-sea voyages.13 Mediterranean seafarers failed to completely grasp the revolutionary change from oar to sail, or to master the new techniques of open-sea navigation, and they fell farther behind the Iberians. Spain and Portugal led the advances in marine science related to cartography and navigation, meteorology, and tidal current and climate patterns. The explorers were pioneers who exhibited the ideals that epitomize the early Enlightenment to systematically organize and classify the natural world to bring order to the seeming chaos of nature, and to reflect man’s intellectual mastery of his world.14 The early Enlightenment—beginning in the late fifteenth century, and especially in the interior of the European continent— elevated philosopher scientists, who preferred the vagaries of Cartesian rationalism to measurement and observation. Seafaring kingdoms embraced the more pragmatic aspects of the Enlightenment in an effort to overcome the difficulties posed by operations at sea. Naval officers, while hoping to be viewed as gentlemen of leisure and philosopher status, actually embodied the characteristics of the new type of thinker, exhibiting anti-clericalism, science and freemasonry, practical mathematics, and even sexual license.15 Not having the luxury of their more prestigious continental theoreticians to engage in elevated theory, the maritime men of action harnessed the new techniques to solve practical problems. While it is true that individuals formulate ideas and theories, those concepts only gain their power and influence through promulgation and discussion in scientific societies and journals, and in interdisciplinary fieldwork.16 When the field encompasses more than 70% of the planet, the naval forces of the major maritime powers were (and remain) essential participants in the history of the development of science and technology. The navigational and cartographic skills of the Iberian powers opened up the vistas of the seas. These small maritime states began to travel, and therefore also had a dispositive role in discovery of the flora and fauna around the world, constructing the foundation for basic and applied marine science, biology, and botany. The breakthroughs in navigation that propelled the Age of Discovery also profoundly shaped contending legal paradigms of the international law of the sea, as Portugal and Spain laid claim to enormous tracts of closed sea, or mare 13  14  15  16 

Ibid., 76–77. Roberts, Galle: As Quiet as Asleep, 4, and Hall, Empires of the Monsoon, 80, 92. Roberts, Galle: As Quiet as Asleep, 5–7. Margaret Deacon and Colin Summerhayes, “Introduction,” in Understanding the Oceans, eds. Margaret Deacon, Tony Rice and Colin Summerhayes (Boca Raton, Florida: CRC Press, 2001), 3.

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clausum. Thus, the 500-year history of the confluence of naval exploration and marine science and technology had a profound impact on the doctrines of oceans law and policy. The canon of mare clausum still shares the stage with its major antagonist, mare liberum, or free seas, to form the essential dichotomy of the contemporary international law of the sea. Before the beginning of the Western state system, marked by the Peace of Westphalia in 1648, marine science was inextricably connected to maritime power, and maritime power to formation of the international law of the sea. During the High Middle Ages and Renaissance period, the Latin powers of Castile, Spain, Portugal, and the Holy League states of Venice and Genoa, were dominant at sea. These states rose to prominence as global powers because of their successful transition from oar to full sail ships, and in doing so they fashioned a marine science of navigation, meteorology, and physical oceanography, and forced the construction of a liberal international law of the sea. The early Latin pioneers were followed first by the Dutch, then the English, and finally, the Americans—a trifecta of Anglo-Saxon maritime powers that came to dominate marine science and maritime law.

Iberian Seapower and the Age of Discovery

The legacy of the Columbian exchange transformed the global biosphere.17 The intercontinental transfer of organisms by ship profoundly affected global culture, the international economic system, and the distribution of global power. The phenomenon of “economic botany” emerged from and fueled the penchant for empirical and experimental—that is, scientific—method.18 The Old World expeditions that revealed the New World to Europeans, however, were as much accidents of Portuguese oceanography and meteorology as they were of conscious exploration. The Canary Islands may have been discovered as early as the 14th century, but history reliably records the Castilian conquest that began in 1402. Portugal began a systematic exploration of the Atlantic coast of Africa from 1418 under the sponsorship of Prince Henry. Infante Henry, Duke of Viseu (1394–1460), who was named Henry the Navigator by the English, sent light caravels down the coast of Africa. Prince Henry was a disciple of mathematics, the study of navigation, and cartography, 17  Nathan Nunn and Nancy Qian, “The Columbian Exchange: A History of Disease, Food, and Ideas,” The Journal of Economic Perspectives 24:2 (Spring 2010), 163–164. 18  Paula De Vos, “The Science of Spices: Empiricism and Economic Botany in the Early Spanish Empire,” Journal of World History 17:4 (December 2006), 399, 406.

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and he also established an observatory and a school of navigation at Sagres. He trained captains to use the new techniques to reach farther beyond the shores of Portugal. The Madeira Islands were discovered (or probably more accurately, rediscovered) in 1420, and Henry instigated Portuguese colonization of the islands. One of Henry’s emissaries, most likely Gonçalo Velho Cabral (circa 1400–circa 1460), discovered the Azores in 1427, and Portugal colonized them three years later. In 1434, Gil Eanes—another of Henry’s commanders— became the first European known to sail past Cape Bojador, a headland on the coast of Western Sahara in present-day Morocco. Southward of this point was considered the end of the world, and passage beyond was regarded as perilous. Whereas the expeditions of Henry the Navigator developed the maritime skills of cartography and astronomic navigation for early exploration, larger political forces shaped the social impetus. In 1453 Constantinople fell to Ottoman invaders, ending a thousand year Latin reign in the East. Safe trade routes from Europe to India were severed. The Turkish advance pressed from the Levant into Europe, with Northern Serbia invaded in 1459, BosniaHercegovina in 1463–66, Albania after 1468, and the large Greek island of Euboea (Negroponte) was seized from Venice in 1470.19 The loss of the land route to the spice traders encouraged interest in finding a safer path by sea to the East.20 The balance of power between the Europeans and the Turks on land did not turn against the Turks until the 1600s, but at sea it did so more than a century earlier.21 In 1455–56, the Portuguese reached the Cape Verde archipelago. As they crept southward along the African coast, the bold explorers sought a route around Africa and to the East in order to avoid the dangerous overland voyage through the Ottoman Empire. The search was stymied, however, by the 1,000-mile indentation into the Gulf of Guinea from present-day Cape Palmas, Liberia to Cape Lopez, Gabon. Several decades later, in 1488, Portuguese nobleman Bartolomeu Dias (circa 1451–1500) reached the Indian Ocean by this route. Dias wanted to press onward toward India, but his crew refused. Meanwhile, the other major maritime powers of the day, the city-states of Venice and Genoa and the Ottoman Empire, were consumed with rivalry in the Eastern Mediterranean that ceded the rest of the world to the oceanic states. Whereas the Ottoman Turks were ascendant in the Mediterranean and Balkans regions, Muslim armies were on the retreat in Western Europe. On the 19  Cipolla, Guns, Sails, and Empires, 17–18. 20  Ibid. 21  Ibid., 100.

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Iberian Peninsula, the fall of Nasrid Dynasty’s Emirate of Grenada to Catholic monarchs on January 2, 1492, marked the end of nearly 800 years of Islamic control with the success of the Reconquista.22 The toppling of Al-Andalus caused momentous celebration in Castile and Aragon, and drew congratulations from throughout the Christian world. With this psychological boost, Spanish monarchs were freed to accept greater risk in exploration to the west, and they joined Portugal in provision of intercontinental voyages. In 1492 the Spanish monarchs funded Christopher Columbus (1451–1506) to sail west to reach the Indies by crossing the Atlantic Ocean. Columbus discovered that the trade winds reliably blow from the East at an angle to the equator, such that they bring air from higher latitudes to the equatorial zone of convergence. As hot, dry air along the eastern edge of the ocean basin moves westward over the sea it picks up moisture, which falls on the western side. In the Atlantic Ocean basin, the trade winds originate along the northwest coast of Africa, where dry, warm surface air from the continent comes into contact with cooler surface water.23 Portuguese explorers learned that sailing ships could use these winds to travel quickly on a westward course. Columbus set out from the Canary Islands, carried virtually due west by the wind. His squadron consisted of the caravels Pinta and Niña, which displaced around 60–75 tons, and the larger carrack flagship, Santa Maria, which displaced about 100 tons. At 0200 on October 12, 1492, land was sighted. At daylight landfall was made at an island in the Bahamas, believed to be either present day Samana Cay, Plana Cays, or perhaps San Salvador Island. With this success, early explorers learned to avoid the doldrums off the African coast—the low-pressure zone of inter-tropical convergence along the equator—and ride the trade winds from Cape Verde into the central Atlantic Ocean. Their original goal was to swing southward and back toward the east and round the Cape on the way to the riches of the East. By sailing too far west, however, mariners encountered the New World. Once the trade winds hit the western edge of the ocean basin, they turn first toward the poles, and then rebound east as the prevailing westerlies. Columbus was able to capture the westerlies on the return trip to Europe, passing the Azores. By the early-1500s, Spanish ships encountered the Gulf Stream—the powerful, warm Atlantic

22  J. N. Hillgarth, The Spanish Kingdoms: 1250–1516. Volume II: 1410–1516, Castilian Hegemony (Oxford: Clarendon Press, 1978), 367–393. 23  Neil C. Wells, The Atmosphere and the Ocean: A Physical Introduction (Oxford: John Wiley & Sons, 3d ed., 2012), 326.

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Ocean current that originates in the Caribbean and pushes up the east coast of North America to Newfoundland before crossing the Atlantic Ocean.24 The discovery of the New World and the Columbian exchange must be regarded as the most dramatic and consequential political and military event in recorded history. The exchange included all manner of flora and fauna in an epic movement of people and culture, cattle, pigs, and horses, and wheat, rice, and sugar, as well as smallpox and malaria, and other diseases, traveling from Europe, Africa, and Asia to the Americas, and the introduction of corn, potatoes, tobacco, beans, and syphilis, from the Americas into Europe, Africa and Asia. The discovery of the New World, as immense as it appeared to be, raised the uncomfortable question of the rights of sovereignty, or at least suzerainty between Portugal and Spain, over the area. In order to quell dispute between Catholic rulers, Pope Alexander VI (1431– 1503) issued the Papal Bull Inter Caetera (“among other works”) on May 4, 1493, granting to the Spanish crowns investiture of all the lands to the west and southwest along a meridian lying 100 leagues west and south of the islands of the Azores and the Cape Verde Islands. Two years after Columbus’ expedition, however, Portugal and the crowns of Castile and Aragon divided the oceans of the non-Christian world between them. The delineation of the Papal Bull Inter Caetera was adjusted in favor of Portugal to a line running along a meridian 370 leagues25 west of the Cape Verde islands in the Treaty of Tordesillas. The line of delimitation was pushed so far to the west that Portugal had clear title to the South American bulge that makes up a considerable part of present-day Brazil. The change raises the prospect that Portugal secretly knew all along about the region and kept the knowledge from Spain during the negotiations.26 In any event, the Spanish Crowns ratified the treaty on July 2, 1494, and Portugal did so on September 5, 1494. Discoveries in the East followed those in the West. Dias’ trip past the Cape of Good Hope in 1488 set the stage. Five years after Columbus sailed to the New World, Vasco de Gama (circa 1460–1524) sailed around the Cape of Good Hope, the route so named because it promised an opening to a safer sea route to India that would bypass the land road controlled by the Ottoman Empire. The Cape of Good Hope opened the Indian Ocean to Portuguese and Spanish trade and colonization. 24  Margaret Deacon, Scientists and the Sea: 1650–1900: A Study of Marine Science (London: Academic Press, 1971), 47. 25  370 leagues are equivalent to 2,193 kilometers, 1,362 statute miles, or 1,184 nautical miles. 26  John A. Crow, The Epic of Latin America (Berkeley, CA: University of California Press, 4th ed., 1992), 136–137.

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Vasco de Gama reached India in 1498. The voyage had profound global geopolitical implications. The Muslims realized immediately that the arrival of Vasco de Gama at Calicut opened a new front against them and upset the traditional balance of power.27 The Christian forces had outflanked them. Portugal constructed a string of outposts that extended from Lisbon, along the coast of West Africa, to Kochi and Goa in India, Ceylon (present day Sri Lanka), and eventually encompassed the annexation of Malacca by Afonso de Albuquerque (1453–1515) in 1511. The Muslims were unsuccessful in turning back the Portuguese. Western artillery was incomparably more powerful than those in Asia.28 Portugal’s use of naval cannon in the Indian Ocean and Pacific Ocean elicited a mixture of terror and awe.29 The Rajavali of Ceylon, for example, recorded the arrival of the Portuguese in at Colombo in 1505: . . .[I]nformation was brought to the King that there were in the harbor a race of very white and beautiful people who wear boots and hats of iron and never stop in any place. They eat a sort of white stone and drink blood. . . . They have guns with a noise like thunder and a ball shot from one of them, after traversing a league, will break a castle of marble.30 In 1507, Admiral Mir Hussain left Egypt with a fleet of at least 15,000 men to oust Portugal from the Indian Ocean. Hussain’s fleet was defeated off the coast of Diu two years later.31 The Portuguese kept coming, armed with cannon that could shoot at a distance of a marine league. A league is a unit of measurement of distance that was popular in Europe, and originally referred to the distance that a person could walk in one hour, or, in a maritime context, how far a person of (then) average height of 5’9” tall could see when standing at sea level, or about three nautical miles. Over the course of time, the marine league became the recognized standard for the appropriate breadth of the territorial sea. In 1703, for example, Bynkershoek is credited with declaring that coastal 27  28  29  30 

Cipolla, Guns, Sails, and Empires, 101. Ibid., 107. Ibid. Sir James Emerson Tennent, Ceylon: An Account of the Island, Vol. I (London: Longman, Green, Longman & Roberts, 4th rev. ed., 1860), 418. 31  Cipolla, Guns, Sails, and Empires, 101. Admiral Hussain led a combined force of Turkey, Egypt, Venice, the Republic of Ragusa (Dubrovnik) and the Sultan of Gujarat, Mahmud Begada. In 1535, Begada gave Diu to Portugal as a reward for military aid to support the Sultan Bahadur Shah of Gujarat, against the Great Mogul of Delhi. Portugal occupied the town until it surrendered to troops of the Indian Union in 1961.

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states exercised sovereignty out to a distance of three miles from shore—the range of naval cannon.32 In 1512, Portuguese conquerors also reached the Banda Islands (“spice islands”) in the Moluccas, which were a preferred source of nutmeg and cloves.33 These explorers confirmed for the first time that the eastern and western Pacific were part of the same ocean. Within a year, they had landed on the shores of China. Similarly, Portuguese explorer Ferdinand Magellan (circa 1480–1521) entered Asia from the other side. He rounded the cape that now bears his name and sailed into the Pacific Ocean in the fall of 1520. In the early spring, he landed in the Marianas Islands and Guam, and later made the first recorded European discovery of the Philippine Islands.34 Spanish conquistadors consolidated power in the Americas and reached out to islands in the South Pacific. In 1522, Magellan led a Spanish expedition on a voyage that became the first circumnavigation of the world. Setting out on a westward journey with an accompaniment that included Juan Sebastián Elcano (1476–1526), a Spanish merchant ship captain seeking royal pardon for past misdeeds, Magellan sailed in the caravel Trinidad, accompanied by the carracks Santiago, Concepcion, Victoria, and Santiago. The fleet sailed to the New World, and then from the Eastern Pacific Ocean to the Philippine Islands.35 He became involved in a 32  James Brown Scott, “Introduction,” in Cornelius van Bynkershoek, De Dominio Maris Dissertatio, trans. Ralph van Deman Magoffin, ed. James Brown Scott (New York: Oxford University Press, 1923), 17. The three-mile standard prevailed throughout custom and state practice, and it represented the view of a majority of states on the League of Nations Committee of Experts for the Progressive Codification of International Law during the 1930 League of Nations conference on the codification of the international law of the sea. See also George Grafton Wilson, Reporter, “The Law of Territorial Waters,” The American Journal of International Law 23:2, Supplement: Codification of International Law (April, 1929), 241, 251. 33  Robin A. Donkin, Between East and West: The Moluccas and the Traffic in Spices Up to the Arrival of the Europeans (Memoirs of the American Philosophical Society Held at Philadelphia for Promoting Useful Knowledge, Vol. 248) (Philadelphia: American Philosophical Society, 2003), 173. 34  Thomas Suarez, Early Mapping of Southeast Asia (Singapore: Periplus Editions (HK) Ltd, 1st ed., 1999), 138–139. 35  King Charles V provided a squadron of five ships. The caravel Trinidad, with a displacement of 110 tons and a crew 55, was the flagship. Trinidad was accompanied by the carracks San Antonio, Santiago, Concepcion, and Victoria. San Antonio under the command of Juan de Cartagena; the ship displaced 120 tons and had a crew of 60. Concepcion was under command of Gaspar de Quesada; the ship displaced 90 tons and had a crew of 45. Santiago commanded by Juan Serrano; the ship displaced 75 tons and had a crew

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local Filipino tribal war, however, and was killed on April 27, 1521, during a battle on Mactan Island off the coast of Cebu. Victoria and Trinidad got underway bound for the Moluccas Islands to trade. When Trinidad sprang a leak and had to remain in the Maluku archipelago, Elcano commanded the Victoria through the Spice Islands. Victoria rounded the Cape of Good Hope on May 6, and returned to Spain on September 6, 1522. The importance of the achievement was instantly grasped. Charles I of Spain awarded the enterprising merchantman a coat of arms that featured a terraqueous globe with the motto: primus circumdedisti me (Latin: “You went around me first.”).36 Globalization had begun. The cultural collision between Europe, the Americas, and East Asia presaged an international system that made maritime power preeminent, and gave rise to Western colonialism that replaced Muslim invasion as the most powerful wave of conquest on the planet. Consequently, the expeditions from the Iberian Peninsula bred competition between Spain and Portugal for title to the Far East and the New World, and fueled a North-South dynamic of political and economic colonialism that endured for half a millennia, and still shapes world politics to this day. Following the Magellan expedition, Spanish explorers led by García Jofre de Loaísa (1490–1526) embarked on an expedition to Asia for King Charles I of Spain, and entered the Moluccas to colonize the islands. Portugal, which already had been operating from Ternate since 1521, defeated the Spanish after one year of fighting. In 1525–26, marriages between Spanish and Portuguese ruling families, however, and the inability of the Spanish to ship spices eastward to Europe because of logistical obstacles, eased tensions. The two states negotiated the Treaty of Sargossa in 1529, and the agreement set the boundary between Spain and Portugal in Asia. The 1493 Papal Bull Inter Caetera had marked the end of ecclesiastical legal rule over the global commons. Coming shortly after, the secular Treaty of Tordesillas was the world’s first global oceans treaty, and the Treaty of Sargossa complemented it. Together, these two treaties divided the globe between Spain and Portugal, bringing land and sea under the authority of monarchs in Iberia. Scarcely had the ink dried, however, than upstarts began to challenge the maritime order.

of 32. Finally, Luis Mendoza commanded Victoria, which displaced 85 tons and had a complement of 43. 36  Mauricio Obregón, “Argonauts to Astronauts,” Diogenes 22:86 (June 1974), 101, 108; Ferdinand Magellan, Encyclopedia of Western Colonialism Since 1450, Vol. 2, ed. Thomas Benjamin (Detroit, MI: Macmillan, 2007), 745–747.

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While the Europeans turned the New World into their exclusive domain, they also began to turn back Arab power in the Indian Ocean. The Mediterranean Sea, however, was still under threat of the Ottoman galley fleets. In 1565 an Ottoman fleet besieged Malta; the Knights of Saint John barely managed to turn back the attack.37 In August 1571, another Ottoman force took Cyprus, then controlled by Venice, and massacred the Christian population in the city of Famagusta. In response to the loss of Cyprus, Venice, Spain, and the papacy hastily formed a fleet at Messina, Sicily, under the command of Don Juan of Austria.38 Later that year the Holy League met the Ottoman fleet off Lepanto (Italian) or Naupactus or Nafpaktos (Greek), in the Gulf of Corinth. The shift from oar to sail was not complete until the Battle of Lepanto in 1571. The Holy League employed to decisive advantage six heavy, barge-like galleasses that cut up the Ottoman fleet. The galleass was a massive hybrid ship that retained oars, but also had three large sails—an intermediate design between an oared galley and a true man-of-war. These vessels could accommodate heavy cannon, and the fusion of cannon and sail revolutionized maritime power. The galleass carried nearly 50 guns and could deliver more than six times as much shot as any of the largest galleys of the time.39 Slow in the water, the galleass demonstrated the utility of wind power to move large and heavy ships. The Ottoman fleet was decimated at Lepanto, and thereafter the European states slowly began to roll back Ottoman gains in the Mediterranean Sea. The Turks were not stopped on the ground, however, until the siege of Vienna in 1683, when a coalition of the Holy Roman Empire in association with a Polish-Lithuanian Commonwealth (Holy League) turned back a superior Muslim force.

Dutch Seapower and the Free Seas

Scientific advances continued to propel transcontinental exploration and discovery. Outside of the coastal zone, the depth of the ocean had held only academic interest.40 By the early-sixteenth century, maritime soundings 37  Anthony Pagden, Worlds at War: The 2,500-year Struggle between East and West (Oxford: Oxford University Press, 2008), 229. 38  Ibid. 39  Victor Davis Hanson, Carnage and Culture: Landmark Battles and the Rise of Western Power (New York: Random House—Doubleday, 2001), 233–239. 40  A.S. Laughton, “Shape as a Key to Understanding the Geology of the Oceans,” in Understanding the Oceans, 92–93.

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began to acquire greater importance than merely a method to avoid grounding. Mariners tied a lead weight to a rope and lowered it into the water in order to determine depth. The method of taking soundings by rope was unchanged since ancient time as the only means to avoid grounding. Variations operated on the same basic principle: a buoyant object was attached to a weight that was dropped over the side of the ship.41 When the weight hit the seafloor, the float was released and rose to the surface. By timing the voyage of the float to the surface, and knowing the rate of speed at which it traveled through the water, mariners could determine the depth of the water—but only if they could locate the float at the moment it hit the surface. The Renaissance opened an era of observation and measurement, and seafarers began to consider how to gauge the depth of the water without the use of a line, since they realized that underwater currents would carry the line out of vertical and skew the measure.42 Perfecting the lineless sounder proved an intractable puzzle for almost 400 years. In the meantime, charts began to include the seabed of the continental shelf, which gave seafarers advanced notice of the proximity of land after long voyages at sea.43 Travelling north from the Moluccas, Portugal colonized Macau in 1537. By then, voyages into the Atlantic and Pacific Oceans had become routine as knowledge about the physical properties of the sea and sky increased. In 1542, for example, Spanish navigator Bernard de la Torre discovered the North Equatorial Current.44 The major Pacific and Atlantic Ocean current flows eastto-west between about 10° north and 20° north, pulling ships from North Africa to North America, and from South America to across the Pacific Ocean to Asia. Now mariners had mastery over both the winds and the waves, and voyages became less starkly dangerous. In the next year, 1543, the first Portuguese landed in Japan. The men were the first Westerners recorded to have entered the country. Portugal and Spain formed the Iberian Union in 1580, and by then the Portuguese had established a trading port at Nagasaki, Japan (1571). The Iberian Union led by Spain formed the superpower of the day. Spain occupied the Dutch United Provinces, and also threatened England, which was supplying an insurgency in the Provinces. The Dutch Revolt was fought from 1566 to 1648, when the Protestant provinces of the northern side of the Low Countries wrested free from the Roman Catholic rule of King Philip II of 41  Ibid., 40. 42  Deacon, Scientists and the Sea, 39. 43  A.S. Laughton, “Shape as a Key to Understanding the Geology of the Oceans,” in Understanding the Oceans, 92–93. 44  Deacon, Scientists and the Sea, 47.

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Spain. In 1588, the Spanish Armada was destroyed, and the union of interests by English and Dutch to bring down Spanish power was well underway. England, France, and the Dutch Provinces defied the Iberian monopoly on maritime trade and searched for new routes into the Pacific Ocean—either a Northwest Passage, or a southern route around South America, in order to circumvent routes dominated by Spain and open their own trade with Asia. Within this geopolitical backdrop emerged Hugo Grotius. At dawn on February 25, 1603, the 1500-ton Portuguese carrack Santa Catarina was seized off the coast of Singapore by a squadron of three Dutch ships under the command of Jacob van Heemskerk (1567–1607). The captain (later promoted to admiral) was sailing under the flag of the Dutch East India Company—an entity chartered in 1602, and granted a 21-year monopoly on trade in Asia.45 The East India Company is regarded as the first multinational corporation.46 The business sprang from the burgeoning field of practical mathematics and actuary that helped merchants and investors spread risk and liability. With shared profits and limited losses, Dutch corporations became the first modern businesses. This commercial dimension of the Enlightenment made possible the expansion of trade and wealth that opened a capitalist dimension to globalization, and it also aided the transition from theological rule to the modern state.47 The Santa Catarina was not a typical capture. The large store of Ming porcelain, 1200 bales of Chinese raw silk and several hundred ounces of musk used in perfume doubled the capital of the East India Company.48 The attack occurred in the midst of the war with Spain. Since Portugal was joined with Spain in the Iberian Union, war with the Spainish Hapsburgs opened the prospect of conflict with the monarchy of Portugal as well. Admiral van Heemskerk, however, did not have authority from the directors of the company or a commission from Prince Maurice, Lord of High Admiral of Holland, to engage in 45  Justis M. van der Kroef, “The Decline and Fall of the Dutch East India Company,” The Historian 10:2 (Spring 1948), 118. 46  The English East India Company was established in 1600 and the Muscovy Company even earlier—in 1553—but the Dutch were the first truly multinational entity. Carlos, Ann M. and Stephen, “Giants of an Earlier Capitalism: The Chartered Trading Companies as Modern Multinationals,” The Business History Review 62:3 (Autumn, 1988), 398, 401–403. See also S.R.H. Jones and Simon P. Ville, “Efficient Transactors or Rent-Seeking Monopolists? The Rationale for Early Chartered Trading Companies,” The Journal of Economic History 56:4 (December, 1996), 898–915, 901–902. 47  John Robertson, The Case for the Enlightenment: Scotland and Naples 1680–1760 (New York: Cambridge University Press, 2013), 4. 48  The cargo was valued at over three million Dutch guilders, or about £300,000.

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naval warfare on behalf of the crown, so the capture appeared doubtful under Dutch law.49 Yet on September 9, 1604, the Amsterdam Admiralty Board ruled the capture a good prize.50 The prize became something of a scandal. The Amsterdam Admiralty Board wove together the various strands in the case, leading to an unsatisfying verdict.51 The East India Company hired enterprising Dutch jurist Hugo Grotius (1583–1645) to establish its right to disentangle the arguments in the case and justify the seizure of the ship. Grotius’ legal brief animated concepts of natural rights and natural law to promote the legal doctrine of freedom of the seas. The incident was the final push needed to wreck the tidy division of the oceans under the treaties of Tordesillas and Sargasso. The case also ignited a broader political and legal fight over freedom of navigation and the limit of maritime claims. The doctrine of free seas took control of the trajectory of the law of the sea, and once adopted by the English became a staple of oceans law and policy that survives to this day. Dutch maritime power became inexorable. The commercial and maritime might of the Dutch challenged Portuguese and Spanish dominance in Asia and the New World. The East India corporation had established 50 forts just in Sri Lanka.52 Dutch navigator Willem Janszoon (1570–1630) discovered Australia in early March 1606, followed shortly by Luís Vaz de Torres (circa 1565–1607), who sailed through the Torres Strait for the Spanish Crown in October of that same year. In North America, the Dutch West India Company established Fort Amsterdam at the mouth of the Hudson River and declared the city of New Amsterdam on Manhattan in 1625. Another Dutch explorer, Abel Janszoon Tasman (1603–1659) discovered New Zealand in December 1642—about 700 years after Polynesians established a distinctive Māori culture in the islands. Throughout the 16th and 17th centuries, the Dutch East India Company came to control the lucrative trade of the East. By the end of the Thirty Years War in 1648,53 the shift in power from Catholic to Protestant states was undeniable, setting the stage for the emergence of English sea power. 49  Martine Julia van Ittersum, “Hugo Grotius in Context: Van Heemskerk’s Capture of the Santa Catarina and Its Justification in De Jure Praedae (1604–1606),” Asian Journal of Social Sciences 31 (2003), 511, 516. 50  Ibid., 521. 51  Ibid., 524. 52  Ranjith M. Jayasena, “The Historical Archaeology of Katuwana, a Dutch East India Company Fort in Sri Lanka,” Post-Medieval Archaeology 40:1 (June 2006), 111, 112. 53  Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies (Treaty of Münster and Treaty of Osnabrück), 1 Parry 271; 1 Parry 119 1 CTS 271; 6 Dumont, Part I, 450 (1648).

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The Royal Navy and the Age of Science

The iconic British research vessels HMS Challenger and HMS Beagle, the vessel that provided Charles Darwin a laboratory at sea, were both warships of the Royal Navy. In the seventeenth century, after a series of four Anglo-Dutch Wars the banner of maritime power passed from the Dutch to the English. As the Royal Navy supplanted Dutch sea power as ruler of the waves, it also acquired greater influence over the development of marine science and technology shape, and the direction of the law of the sea. From its inception, the Royal Navy had a symbiotic relationship with ocean science and technology. The First Anglo-Dutch War occurred between the English Commonwealth and United Provinces during the English Interregnum—the period from 1649 to 1660 following the execution of Charles I, when Republican Parliaments ruled in England, and later Scotland and Ireland. The conflict was fought in 1652–1654 after the English Parliament of the Commonwealth passed the Navigation Act, which required that goods imported into England must be carried on English vessels—thereby excluding Dutch middlemen. Although the measure only nominally undermined Dutch trading interests, it served as justification for English pirates to seize Dutch merchant vessels as “war prize.” The English would capture 1200 to 1500 Dutch ships. The first war, however, had no clear winner. The Second Anglo-Dutch War from 1665–1667 was also somewhat of a draw, although the English did eject the Dutch from New Amsterdam, and renamed it New York, after the Duke of York—the future James II of England. The Dutch scored victories against a combined Franco-English fleet in the Third War of 1672–1674, but by itself, the conflict was not decisive. In 1688, English parliamentarians overthrew King James II of England. Dutch stadtholder William III of Orange-Nassau, known as William of Orange, entered England and ascended to the English throne as William III of England. London became a new hub of shipping activity, and by the early 1700s, the English economy began to eclipse that of the Dutch Republic. After the Fourth AngloDutch War of 1780–1784 England unquestionably replaced the Dutch Republic as the dominant maritime power. The conflict was precipitated by Dutch assistance to the American colonialists in the U.S. Revolutionary War. As a consequence of Dutch support to the United States, the colonies in India were lost to the English. By the end of the Fourth Anglo-Dutch War, the Royal Navy was the dominant naval power. The rise of the Royal Navy coincided with the appearance of a number of learned scientists who favored evidence and observation over engaging in fruitless controversies, avoiding theoretical puzzles, such as the source of salt in the oceans. Robert Boyle, an Irishman who became a Fellow of the Royal Society

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of London, was one of these towering figures. He emerged from a background in alchemy to become a chemist, physicist, and oceanographer. After Sir Isaac Newton, Boyle was the leading scientist of his age.54 Because of physical frailty, however, he was not a seafarer. He drew upon past observations or relied upon measurements made by others who went to sea on his behalf, either in diving bells deep below the surface of the water, or on major ship voyages. Captain Richard Bolland conducted experiments on behalf of Boyle in the 1670s aboard the frigate St. David. Hydrographic observations of tides and currents in the Strait of Gibraltar were published in 1675.55 Bolland, who had an independent interest in marine science, confirmed that there were undercurrents that traveled in directions contrary to surface currents. Later, these currents would be used by submarines to facilitate subsurface transit.56 Scientists now realize that vast deep-sea currents or thermohaline circulation, like giant underwater rivers, flow throughout the oceans and are driven by differences in temperature and salt concentration. The Gulf Stream, for example, discharges about 30 million metric tons of water every second, compared to just one million tons per second for all of the world’s rivers combined.57 These giant currents transfer so much heat around the globe that they play a key role in world climate.58 Boyle’s collaboration with Captain Bolland is illustrative of a new, cross-disciplinary cooperation in oceanography between a scientist working to understand the oceans and seafarers who regularly operate upon it.59 By the mid-1600s, navigators could easily determine their latitude—that is, how far north or south they were in relation to the equator—by determining the altitude of the sun at noon with the aid of a table of declination of the midday sun above the horizon. Figuring longitude, or relative position east or west, was much more difficult. Accurate determination of latitude was easier than longitude because latitude measured relative distance north or south, and therefore was independent of the earth’s east-west rotation. Longitude, in 54  Deacon, Scientists and the Sea, 117–118. 55  Ibid., 127. See also Margaret Deacon, “How the Science of Oceanography Developed,” in Oceanography: An Illustrated Guide, C.P. Summerhayes and S.A. Thorpe (1996), 9, 11–12; Bolland, A Draught of the Streights of Gibraltar with Some Observations upon the Currents thereunto Belonging, July 24, 1675 (London: Awnsham & John Churchill, 1745). 56  Sir Norman Lockyear, “Currents in the Strait of Messina,” Nature: A Weekly Illustrated Journal of Science 73 (April 26, 1906), 621. 57  Jeremy Thomson, “Great Rivers of the Ocean,” Nature, January 11, 2001. 58  Ibid. (“Compare the freezing Labrador Coast of Canada to the south-western tip of Britain, although they are on the same latitude, in Cornwall, thanks to warm ocean currents, palm trees grow and frosts are rare.”). 59  Deacon, Scientists and the Sea, 129.

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contrast, is affected by the rotation of the earth, and therefore requires mastery of the measurement of time. “Thus if a mariner had a clock keeping Greenwich time and found that it read 2 p.m. when the sun was at its maximum angle above the horizon—the local noon—he would know that his longitude was two hours west of Greenwich.”60 The earth rotates at rate of 360° per day, or 15° per hour (in mean solar time), so if mariners had an accurate chronometer they could figure the difference between the time at the reference point and local time, which would then give the ship’s position relative to Greenwich. Not knowing longitude posed profound dangers for the navigators of the Royal Navy. Thus, dreadful losses caused by navigational error provided incentive for the Navy to solve the puzzle.61 Eventually, while astronomical calculations were used with mixed results, they were never as effective as the chronometer. It was not until the 1800s that the presence of accurate, inexpensive chronometers became a feature on board ships. The detective-like pursuit of longitude reflected the pragmatic, inventive culture of Britain that led to the industrial revolution.62 Departing from the abstract, gentlemanly mathematics of the philo­sopher, the British utilized algebra, calculus, and geometry, or what they called “mixed mathematics.” Applied mathematics, was regarded as vulgar, but more practical. These skills involved the working calculations of working men, such as insurers, bankers, tradesmen, excise officers and navigators.63 The utility of applied mathematics was also expressed in actuarial principles that sustained the British war effort over one hundred years of colonialism and conflict.64 Unlike the Royal Navy, the French Navy was infused with deductive Cartesian rationalism. Pure theory and pure mathematics by metropolitan intellectuals derived their high status from their remoteness to the dirty work of actual seafaring and shipbuilding.65 For example, Leonhard Euler, an eminent Swiss intellectual who embodied the tradition, began his study on naval architecture with the solemn explanation that ships are intended to float.66 In contrast, 60  J. Donald Fernie, “Finding Out Longitude,” American Scientist, (September–October 2002), 412. 61  One such major disaster occurred in 1707. A fleet sailing under command of Admiral Sir Cloudesley Shovel made a voyage from Gibraltar to England through 12 days of violent seas and an overcast sky. Blind, the fleet’s four ships and two thousand men were lost when they ran aground on the Scilly Isles off the southwest tip of England. Ibid. 62  Rodger, “Navies and the Enlightenment,” 17. 63  Ibid., 6. 64  Ibid. 65  Ibid., 11. 66  Ibid.

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the Royal Navy was more likely to work inductively, and it had more practical and commercial uses for science. The experimental method was often applied imprecisely, however, and without controlled experiments. Despite imperfect execution of the scientific method, progress was made. The Sick and Wounded Board, for example, conducted trials of medicines in 1795 and recommended the general issue of lemon juice based upon experiments.67 Likewise, the National Archives Public Records Office at Kew London, records in 1792 that the Navy Board conducted controlled experiments on anti-fouling compounds for ship hulls and ventilators for air circulation.68 Like English society more generally, the Royal Navy took the lead in the preference for practice over theory and technology rather than science.69 Astronomy was the sole exception, as it was useful in solving the challenge of longitude. With the voyages of James Cook (1728–1779), astronomy became integrated into the operations of the Royal Navy. Cook was a Fellow in the Royal Society and a captain in the Royal Navy—one of the first maritime officers to combine a profession of science with a profession of arms. Cook is well known for his cartography of Newfoundland and three Pacific Ocean voyages that resulted in the first recorded European contact with Australia and the Hawaiian Islands. Cook also contributed to our understanding of tides. During his second voyage from 1772–75, the Royal Society and the Board of Admiralty agreed to include two astronomers who used the trip to make astronomical observations and test chronometers on behalf of the Board of Longitude and take depth temperature readings.70 By the dawn of the early-1800s, Royal Navy science reached a stage where it could make a practical contribution of real value.71 From the time of Captain Cook onward, the Royal Navy conducted a number of notable scientific sea journeys. The voyage of frigate HMS Challenger between 1872 and 1876 marks a particularly important milestone in the relationship between naval operations and marine science. The Challenger expedition was the first large-scale effort dedicated solely to understanding the marine environment.72 The observations made during the 2-½ year voyage provided a framework for scientific 67  68  69  70  71  72 

Ibid. Ibid., 13. Ibid., 12–15. Richard Hough, Captain James Cook (New York: W. W. Norton & Co., 1994), 191–192. Rodger, “Navies and the Enlightenment,” 17. A.L. Rice, “The Challenger Expedition, The End of an Era or a New Beginning,” in Understanding the Oceans, 27.

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inquiry into ocean chemistry, marine biology and physical oceanography. The expedition was under the direction of Edinburgh University Professor Charles Wyville Thomson, and it lasted 1606 days, including 713 days at sea.73 The ship covered 68,890 nautical miles. Work was conducted at 362 official stations. Soundings and bottom sediment samples were taken at each location.74 Water temperature was determined at various depths, the speed and direction of surface currents were recorded, and numerous water samples and biological samples were collected. The Challenger mission published its findings in 1895—a vast trove of observations that filled 50 volumes.75 The undertaking as a whole was conducted without a political objective or motive for exploration, other than the quest for knowledge. In terms of its impact on science, the Challenger research is on par with the moon landing in advancing our understanding of an unexplored domain.76 The expedition formulated the goals, systemic methods of data collection and measurement, and careful analysis that became the standard for oceanographic research around the world.77

Rise of American Seapower

Like the Royal Navy, from the beginning the U.S. Navy had a pragmatic approach to marine science. In 1830, for example, the Navy organized the Depot of Charts and Instruments, and in 1838 embarked on the three-year U.S. Exploring Expedition to the South Pacific and Antarctic Ocean.78 Lieutenant Matthew Fontaine Maury (1806–1873), a U.S. Navy officer and oceanographer, served as Officer in Charge of the Depot of Charts and Instruments from 1842– 1854. Maury’s team carefully harvested observations of wind, precipitation, fog, ocean currents, and other natural phenomena from ship logs, and used the

73  Ibid., 29. 74  Ibid., 32–35. 75  A.L. Rice, “Forty Years of Land-locked Oceanography; the Institute of Oceanographic Sciences at Wormley, 1953–1995,” Endeavour 18 (1994), 137, 138. 76  Despite the importance of the expedition to science, from a purely technological point of view, the voyage is regarded as conservative rather than innovative, because it generally made use of existing techniques of observation and collection of samples. Rice, “The Challenger Expedition,” 42. 77  Till, Seapower, 307. 78  A. Hunter Dupree, Science in the Federal Government: A History of Policies and Activities to 1940 (Cambridge, MA: The Belknap Press of Harvard University Press, 1957), 61–65.

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data to create maritime charts.79 The deeply religious Maury, who originally was inspired by the reference in Psalm 8 to “the paths of the sea,” came to be known as the “pathfinder of the sea,” or the father of American ocean science.80 Maury lobbied for creation of the U.S. Naval Observatory to house the Navy’s chronometer, charts, and navigational equipment, and in 1842, he was appointed the first superintendent of the new institution.81 He grew up on a hardscrabble Virginia farm and was raised in Tennessee, and he served as superintendent until he resigned to join the Confederacy in 1861. His relentless curiosity motivated him to map the surface currents and wind systems, and he published the findings in a Wind and Current Charts and Sailing Directions. The publication allowed shipmasters to save weeks or months of time on voyages. This work attracted the interest of the Navy, as well as commercial mariners. In return, he required the latter to collect new data, which was folded back into his work. Inspired by the need for international cooperation in such matters, Maury conceived of the first submarine cables and organized an International Meteorological Conference in Brussels in 1853. Ten nations joined together in the first international compact to share weather information in an effort that presaged the World Meteorological Organization. Maury’s career coincided with the expansion of transcontinental maritime trade in the age of sail, and the ascendance of America as a major maritime power. By the early-twentieth century, the United States and United Kingdom led oceanographic science, and the burden was borne by their naval forces. As a new branch of science, oceanography emerged from a methodological 79  Sharon L. Gibbs, The Maury Abstract Logs, 1796–1861 (Washington, D.C.: National Archives, 1985), 1–2. 80  See, e.g., Chester G. Hearn, Tracks in the Sea: Matthew Fontaine Maury and the Mapping of the Oceans (International Marine/Ragged Mountain Press, 2002). Older works include: Frances Leigh Williams, Matthew Fontaine Maury: Scientist of the sea (New Brunswick, NJ: Rutgers University Press, 1963), Jean Lee Latham, Trailblazer of the Sea (New York: Houghton Mifflin, 1956), John W. Wayland, Pathfinder of the Seas: The Life of Matthew Fontaine Maury (Richmond, VA: 1930), Charles Lee Lewis, Matthew Fonataine Maury: Pathfinder of the Seas (1927), and Diana Fontaine Corbin, A Life of Matthew Fontaine Maury (New York: Scribner & Welford, 1888). Diana Corbin was his daughter. Upon publication of her biography of Maury in 1888, the Atlantic Monthly wrote a review that concluded he was a “highly original and independent,” imbued with “great power to taking initiative,” a “brilliant and acute practical genius,” who, because his career was interrupted by the Civil War, “achieved less than was his due. . . .” “Corbin’s “Life of Matthew Fontaine Maury, U. S. N. and C. S. N.,” The Atlantic Monthly 63:375 (January 1889), 128, 131–132. 81  Frances Leigh Williams, Matthew Fontaine Maury: Scientist of the Sea (New Brunswick, NJ: Rutgers University Press, 1963), 158–177.

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and cultural struggle within the sciences. Oceanography was a new multidisciplinary science, and it competed with the strong, traditional disciplines of biology, chemistry, geology, and physics for professional and financial support.82 Among all the Federal departments and agencies, the Navy was the most committed to funding oceanographic research.83 Inevitably, marine science became captive to the great power politics of the era. The necessities of war at sea demanded greater and more accurate physical data, and the trend captured not only the British and American navies, but Continental forces as well. German scientists, for example, were among the first to incorporate meteorology into their naval war effort during World War I. Accurate fog forecasts as far as 48 hours in advance supported the Imperial German Navy raid on the seaport towns of Scarborough, Hartlepool, West Hartlepool, and Whitby on December 16, 1914.84 Subsurface oceanography was even more important than meteorology and accurate weather forecast, however. Naval interest in oceanography was stimulated by the invention of the submarine, and its effective employment by Germany. Subsurface warfare suddenly made important precise information on depth, temperature, salinity, seawater current, and the contour of the ocean bottom.85 Likewise, the same data was needed to counter the threat. “The need for a means to combat the submarine was the most pressing one facing the Allies in 1917 and also the one most insistently calling for scientific research.”86 Sir Ernest Rutherford repeatedly described the submarine threat as “a problem of physics, pure and simple.”87 Suddenly, naval warfare had a potent third dimension that extended below the keel.”88 The mandate to counter submarines was the main catalyst for naval science in the United States and the United Kingdom during the first half of the twentieth century.89 Anti-submarine warfare (ASW) research cemented the close 82  Gary Weir, An Ocean in Common: American Naval Officers, Scientists, and the Ocean Environment (College Station: Texas A&M University Press, 2001), xii. 83  Ibid., 288. 84  “Science in Warfare,” Nature 94:2356 (December 1914), 455–456. 85  Till, Seapower, 307. 86  Anderson Hunter Dupree, Science and the Federal Government: A History of Politics and Activities to 1940 (Cambridge: Belknap Press, 1957), 319. 87  Robert A. Millikan, “Contributions of Physical Science,” in The New World of Science: Its Development During the War ed. Robert M. Yerkes (New York: The Century Co, 1920), 39. 88  Weir, An Ocean in Common, xii. 89  Willem D. Hackmann, “Sonar Research and Naval Warfare 1914–1954: A Case Study of a Twentieth-Century Establishment Science,” Historical Studies in the Physical and Biological Sciences, 16:1 (1986), 83, 95.

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and enduring partnership between ocean science and the navies in the United States and Great Britain. The components of ASW included underwater sound, nets, magnetic and electrical means, searchlights and visibility, and air attack.90 Among these, underwater sound and echo ranging proved the most promising; thus, physics and physical oceanography immediately became vital to the war effort.91 The threat of German submarines during World War I and II was not a boutique hazard that concerned only the naval forces. The German submarine campaigns against Allied shipping in the North Atlantic threatened to cut the very lifeline between North America and Europe, and isolate a European battlefield dominated by Germany. Eventually, countering German submarines was solved “by massed and coordinated scientific resources” that demonstrated that “a new era of warfare had arrived and that science had an essential place in it.”92 The Navy continued its interest in marine science during the Interwar period by funding oceanography to better understand submarine warfare, and undersea warfare more broadly. The U.S. Navy became the greatest patron of oceanography, and the indefinite funding commitment to Woods Hole and the Scripps oceanographic institutions gave the organizations what pioneer oceanographer Roger Revelle called “institutional tenure.”93 The funds were used to open new fields of inquiry, including geophysics, geology, and physical oceanography, and gave a boost to other programs as well. In 1923, the Naval Research Laboratory (NRL) was created as the first dedicated marine research institution within the U.S. Navy. In 1934, NRL scientists—Albert H. Taylor, Leo C. Young and Lawrence A. Hyland—were awarded patents for their work on radar. The Scripps Institution for Biological Research, which became part of the University of California in 1912 and changed its name to Scripps Institution of Oceanography in 1925, was the foundation for the University of California at San Diego, founded in 1960. Both world wars depended upon freedom of navigation in the North Atlantic to flow supplies to U.S. allies in Europe. If the grand strategy during the two world wars was similar, so was the submarine fight upon which it hinged. The only difference between the role of the submarine and the efforts to stop it during the two conflicts was technology. German submarines, and the methods 90  91  92  93 

Ibid., 7. Ibid. Dupree, Science and the Federal Government, 319. Jacob Darwin Hamblin, Oceanographers and the Cold War: Disciples of Marine Science (Seattle: Washington Press, 2005), 34.

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to counter them, became progressively more sophisticated in the interwar period. Because of the nature of the threat, environmental information about the physical realm was at a premium, and the vast sums that poured into oceanography went toward the physical sciences. During World War II, the sonar was greatly improved, and the bathythermograph, which was invented in 1939, helped scientists for the first time understand the importance of thermocline layers and the propagation of sound in the water.94 The technological advances in submarines made the threat to Atlantic sea lines of communication in 1941 more worrisome than those of the First World War. Consequently, oceanography became an ally and partner in support of not only naval operations, but also Alliance grand strategy. Research into undersea warfare continued apace in order to meet the renewed German U-boat threat.95 President Franklin Delano Roosevelt refused to adopt a strategy of coastal defense, so it was imperative that enemy submarines be dealt with at sea.96 Before the United States had even entered the war, Roosevelt delivered a radio address from the White House in the presence of the members of the Governing Board of the Pan American Union and the Canadian Minister, in which he recognized that “if the Axis powers fail to gain control of the seas they are certainly defeated.”97 “We could not wait until bombs fell on the United States,” he later remarked, “. . . our Bunker Hill might be thousands of miles away.”98 American grand strategy, which meant, of course, allied strategy, relied on the operation of a maritime logistical “bridge” between the United States and its friends in Europe. The president believed all freedom depended on freedom of the seas, and Churchill agreed.99 Thus, it was evident to both Axis and Allies that everything depended upon turning back German submarines and keeping open sea lanes. 94  Radio direction finding and the breaking of German codes also played a critical role in ASW. Willem D. Hackmann, “Sonar Research and Naval Warfare 1914–1954: A Case Study of a Twentieth-Century Establishment Science,” Historical Studies in the Physical and Biological Sciences 16:1 (1986), 83, 107. 95  Jacob Darwin Hamblin, Oceanographers and the Cold War: Disciples of Marine Science (Seattle, WA: Washington Press, 2005), 9, 38–41. 96  Doug Brinkley and David R. Facey-Crowther, eds., The Atlantic Charter (New York: Palgrave Macmillan, 1994), 40–41. 97  Franklin Delano Roosevelt, Department of State Bulletin IV:101 (Washington, D.C.: U.S. Department of State, May 31, 1941), 647–650, reprinted in Majorie M. Whiteman Digest of International Law vol. 4 (Washington, D.C.: U.S. Government Printing Office, 1963), 507–508. 98  Brinkley and Facey-Crowther, The Atlantic Charter, 41. 99  Ibid.

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The strategy resonated with maritime powers that traced their nautical heritage to the Dutch, and the doctrine of free seas assumed a philosophically existential importance that was greater than the sum of its parts. Roosevelt explained to the Nation: . . . Yes, all freedom—meaning freedom to live, and not freedom to conquer and subjugate other peoples—depends on freedom of the seas. All of American history—North, Central, and South American history—has been inevitably tied up with those words, “freedom of the seas.” Since 1799, when our infant Navy made the West Indies and the Caribbean and the Gulf of Mexico safe for American ships; since 1804 and 1805 when we made all peaceful commerce safe from the depredations of the Barbary pirates; since the War of 1812, which was fought for the preservation of sailors’ rights; since 1867, when our sea power made it possible for the Mexicans to expel the French Army of Louis Napoleon, we have striven and fought in defense of freedom of the seas—for our own shipping, for the commerce of our sister republics, for the right of all nations to use the highways of world trade—and for our own safety.100 Government patronage poured into geophysics during the war as a consequence of the maritime threat.101 Marine science supported naval forces, and navies were the key to allied grand strategy. In August 1941, Churchill and Roosevelt met in Argentia, Canada, to sketch out the war aims of the allied powers. These war aims were codified in what came to be known as the Atlantic Charter. With Churchill’s edits, Principle 7 of the finished manuscript read, “Peace should enable all men to traverse the high seas and oceans without hindrance.” Continuing the pattern of organic interrelationship among President Woodrow Wilson’s Fourteen Points, freedom of the seas joined the pantheon of American values alongside “freedom from want,” and the principles of economic liberalism and nondiscrimination.102 The statement of peace aims reached in Canada was incorporated by reference into the declaration-treaty that was accepted by all of the Allied powers on September 24, 1942, and formed the foundation for the 100  Roosevelt, Department of State Bulletin, 647–650. 101  Donald E. Doel, “Constituting the Postwar Earth Sciences: The Military’s Influence on the Environmental Sciences in the USA after 1945,” Social Studies of Science 33:5, Earth Sciences in the Cold War (October, 2003), 635–636. 102  Elihu Lauterpacht, C.J. Greenwood, A.G. Oppenheim, eds., International Law Reports 144 (Cambridge: Cambridge University Press, 2002), 285.

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Charter of the United Nations. The Atlantic Charter was the beginning of a liberal framework not just for oceans governance, but for a comprehensive, post-war global order. 103

The Cold War

The future of federal funding for scientific research was uncertain after the war. The military drawdown threatened to eliminate support, especially for basic research. Vannevar Bush stepped into this vacuum. Bush was an American engineer who led the U.S. Office of Scientific Research and Development (OSRD) during World War II. A public intellectual and influential adviser to the president on science, he had initiated the Manhattan Project and became an advocate for science as a public good. In 1945, he released a landmark presidential report, Science: The Endless Frontier, which set forth the enduring bargain between the government and science. For the privilege of public support, researchers are obligated to produce and freely share new knowledge for the public good. In exchange, scientists are free to pursue the truth wherever it may lead. The U.S. Navy was a principal benefactor of this approach, dispensing vast sums of money for ocean science and technology in the post-war era. Marine science was a key beneficiary. President Harry S. Truman established the Office of Naval Research (ONR) in 1946, and directed it to “plan, foster and encourage scientific research in recognition of its paramount importance as related to the maintenance of future naval power, and the preservation of national security.” At that time, ONR was the only source of Federal funding for basic research in the United States.104 The National Science Foundation (NSF), which Bush had advocated, was not stood up until May 10, 1950. Even with NSF, however, marine scientific research still flowed through ONR. Indeed, ONR maintained a dominant presence in basic research as well. Throughout its history, ONR has 103  The Atlantic Conference Resolution of September 24, 1941 was accepted by the governments of Belgium, Czechoslovakia, Greece, Luxembourg, the Netherlands, Norway, Poland, Union of Soviet Socialist Republics, and Yugoslavia and the Free French. See British Cmd. 6315, Misc. No. 3 (1941), Inter-Allied Meeting Held in London at St. James’s Palace of September 24, 194l: Report of Proceedings; and Department of State Bulletin (September 24, 1941), 233–235, available at http://avalon.law.yale.edu/wwii/at17.asp (last accessed November 9, 2013). 104  Fred E. Saalfield, “Preface,” in Office of Naval Research: 40th Anniversary—1946–1986, ed. Fred E. Saalfield (Arlington, VA: Office of Naval Research, Department of the Navy, 1987), iii.

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funded more basic science than the National Science Foundation. ONR became “the most liberal, effective, and flexible Federal patronage agency in history.”105 An atypical but important episode in the US Navy’s institutional relationships in promotion of basis science was its provision of three war vessels refitted as oceanographic ships, donated to a fisheries oceanography project led by scientists at the University of California’s Scripps Institution. The project involved personnel from a consortium of SIO with the State of California’s fishery management agency, the federal fish and wildlife service’s scientists, and other more junior partner institutions in what began as a sardine and tuna research project but expanded quickly into a program of ambitious physical and atmospheric as well as biological oceanographic studies; it covered a vast area of the California Current waters and of the central Pacific and east-central tropical Pacific ocean areas.106 During this period—and especially after the 1957 Sputnik launch—the U.S. Navy became more interested in basic research, and ONR began to move away from the applied research that captivated it during the war years. The serious fear of sharks in the Pacific theater of World War II, for example, spurred the organization to develop shark repellants. The methods were never that effective against sharks, and the effort was more a psychological boost for shipwrecked sailors and downed airmen. In fact, the threat of sharks was minor in comparison to the risks of combat, but having a shark repellant just in case one went into the water was palliative. The Cold War brought the emphasis on basic research into new areas, such as marine biology, and into interdisciplinary oceans science. Understanding the bioacoustics of marine mammals involved working with physics, chemistry, and ocean engineering. Similarly, determining the biological origins of bio-fouling required consideration of molecular biology and chemistry in order to think about how to keep hulls clean and efficient. The importance of understanding marine biology extended to operational survivability at sea. For example, bioluminescent organisms in the Indian Ocean lit up the wake of a passing submarine like a beacon.

105  Weir, An Ocean in Common, xiv. 106  See Harry N. Scheiber, “California Marine Research and the Founding of Modern Fisheries Oceanography: CalCOFI’s Early Years, 1947–1964,” CalCOFI Reports [California Cooperative Oceanic Fisheries Investigations] 31 (1990), available at http://www.calcofi .org/publications/calcofireports/v31/Vol_31_Scheiber.pdf; see also Scheiber, “Pacific Ocean Resources, Science, and the Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 1945–1970,” Ecology Law Quarterly 16 (1986): 383–525.

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Like the Army Corps of Engineers, naval oceanography contributed to a major peacetime economic boom, promoting the mission of the armed forces while providing a path for science to translate into space-age technology. Nuclear energy represented the future. ONR scientists were enriching uranium in 1939, and participated in the Bikini Atoll atomic tests beginning in 1946. These efforts were followed up with the Ivy Mike thermonuclear tests in 1954. The first commercial nuclear power station connected to the grid was opened at Calder Hall in the United Kingdom in 1956, a full two years after the Soviets began a power-generating reactor at Obinsk on the Pravta River southwest of Moscow. On August 3, 1958, the nuclear-powered submarine USS Nautilus became the first vessel to complete a submerged transit to the North Pole. That same year, the United States opened its first commercial nuclear power plant at Shippingport, on the Ohio River in Pennsylvania. The Nautilus served as the test-bed for a nuclear Navy. A nuclear-powered fleet could patrol at high speeds around the world for decades without refueling. Captain Hyman Rickover, a skilled engineer with exceptional organizational talents, formed the Naval Reactors project at the Atomic Energy Commission. He developed the Pressurized Water Reactor (PWR) that was installed on the Nautilus, and then famously, as an admiral, exercised an iron grip over the Navy nuclear program. The Nautilus’ submerged transit beneath the ice cap showed that vessels could travel for long periods without surfacing. Another submarine demonstrated the feasibility of reaching the very deepest bottom of the seabed. After mastering nuclear power, the U.S. Navy set out to master the depths of the sea. In 1960, a Navy Lieutenant named Don Walsh and Swiss scientist Jacques Piccard dove to a depth of 35,800 feet along the Marianna Trench near Guam in the deep-diving bathyscaphe Trieste, a Swissdesigned and Italian-built submersible owned by the U.S. Navy. The Trieste still holds the world’s record for the deepest dive by a manned submersible. Through ONR, the Navy developed an enduring partnership with university oceanographers. After the disastrous sinking of the nuclear submarine USS Thresher (SSN 593) during deep-sea diving tests off the coast of Boston in 1963, ONR worked with Woods Hole Oceanographic Institution to design and build the three-man Alvin, the world’s first deep-ocean submersible.107 Alvin was launched in 1964 and named in honor of engineer Allyn C. Vine, one of the project leaders at Woods Hole. Alvin, which is still in service, is the most productive submersible ever constructed. She has made 4,600 dives over the past 107  Sherry Sontag and Christopher Drew, Blind Man’s Bluff: The Untold Story of American Submarine Espionage (New York: PublicAffairs/Perseus Books Group, 1998), 49.

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50 years to take 13,000 scientists to the seafloor. The submersible was originally designed to dive to depths of 6,000 feet, but numerous upgrades have extended her reach to 14,750 feet—and further modifications extend it to an operating depth of 21,325 feet. In 1977, researchers operating Alvin in the Pacific Ocean off the coast of the Galapagos Islands discovered the first deep-sea hydrothermal vent. The R/V has also helped scientists discover 300 new species of animals, including bacteria, foot-long clams and mussels, tiny shrimp, arthropods, and red-tipped tube worms that surround thermal vents and can grow up to 10 feet in length.

Polar Research

The Navy also became a leader in polar research. Captain Charles Wilkes led the first Navy expedition into Antarctic waters in 1839. In 1929, Admiral Richard E. Byrd made the first flight over the South Pole, and established camps along the Antarctic coast. After World War II, Admiral Byrd led Operation Highjump in the Ross Sea—an exercise that included more than 4,000 people and numerous ships and aircraft. Operation Deep Freeze, the Navy’s support to the National Science Foundation in Antarctica, began in 1955. The 1957–58 International Geophysical Year (IGY) conducted observations and experiments at more than 4,000 stations, which extended from the Arctic to Antarctica and from the deepest ocean trenches to satellites in orbit around the Earth. The IGY produced the World Magnetic Survey, the Indian Ocean Survey, the International Year of the Quiet Sun, and other programs connected to the U.S. space effort.108 The same goodwill and common interest for states to understand the physical environment that were displayed at IGY also led to the 12-nation conference that adopted the Antarctic Treaty in 1959.109 The Antarctic Treaty ensures that the southern continent is an area reserved for peaceful purposes and freedom of scientific inquiry. The agreement also strengthened global political stability during the height of the Cold War by banning nuclear explosions on the continent. By freezing assertion of new territorial claims over Antarctica, banning the enlargement of existing claims, or utilizing Antarctic activities as a basis for supporting or denying territorial claims, the treaty prevents provocative battles over sovereignty and control.

108  Astin, “The Scientific Community and International Cooperation,” 34. 109  Ibid.

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The region is also off-limits to radioactive waste disposal and is permanently demilitarized. As early as the 1950s, the United Sates employed a Sound Surveillance System (SOSUS) across the ocean bottom to listen for the operation of Soviet ballistic missile submarines. The SOSUS program was secret until 1991, but during the 1970s it directly affected negotiation of the rules applicable to the 200-mile Exclusive Economic Zone during the Third United Nations Conference on the Law of the Sea.110 The treaty produced during the nine-year conference— the United Nations Convention on the Law of the Sea (UNCLOS)—serves as the constitution for the world’s oceans.111 Article 60(2) of UNCLOS provides that coastal States enjoy the exclusive right to “construct and to authorize and regulate the construction, operation, and use of . . . installations and structures” in the EEZ. These rights, however, are not plenary, and extend only to installations and structures that are “for the purposes provided in article 56 [of UNCLOS] and other economic purposes.” This language that limits coastal State rights to non-military installations in the EEZ was essential to accommodate SOSUS. By the 1980s, a fleet of acoustic surveillance ships that could deploy the Surveillance Towed Array Sensor System (SURTASS) augmented the SOSUS network, and the totality of fixed and shipboard arrays and shore processing facilities became the Integrated Undersea Surveillance System (IUSS). Similarly, the maritime powers were careful during the negotiations for UNCLOS to ensure that the freedom to conduct military surveys in the EEZ was not restricted by new requirements imposed on marine science. ONR project officers were regarded by scientists as genuine partners who shared in the excitement of discoveries.112 These close relationships were based on personal trust.113 The associations were built over long periods of time because ONR supported extended partnerships with scientists, rather than following the NSF model that promotes extreme competition from year-to-year. The scientists repaid the loyalty with commitment of their own. When a hydrogen bomb was accidentally dropped in the ocean off the coast 110  United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397, Article 57. 111  Tommy T.B. Koh, “A Constitution for the World’s Oceans,” reproduced in United Nations Convention on the Law of the Sea: A Commentary Vol. I, ed. Myron H. Nordquist (Dodrecht, The Netherlands: Martinus Nijhoff, 1985), 11–16. 112  Hans von Storch and Klaus Hasselmann, Seventy Years of Exploration in Oceanography: A Prolonged Weekend Discussion with Walter Munk (Berlin-Heidelberg: Springer-Verlag, 2010), 91. 113  Von Storch and Hasselmann, Seventy Years of Exploration in Oceanography, 91.

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of Palomares, Spain in 1966, for example, the R/V Alvin from Woods Hole Oceanographic Institution was on its way almost at once.114 The submersible located the thermonuclear bomb. A Cable Controlled Underwater Recovery Vehicle (CURV) hauled the weapon up from the depths and placed her aboard the USS Petrel.115 Over the years, however, much of the post-war spirit of teamwork has evaporated.116 Just as the SOSUS program was getting underway in the depths of the oceans, oceanographic research entered the heavens. Seven years after the Soviet Union successfully launched the first artificial satellite into orbit, NASA gathered about 150 oceanographers to assess the potential for studying the oceans from outer space. The symposium considered the types of variables that could be measured from space. The Oceanography from Space symposium was held in August 1964, at Woods Hole Oceanographic Institution.117 The researchers were particularly interested in the basic quantities of radiance, topography, and reflectivity. Radiance can be obtained using infrared and passive microwave sensors to derive sea surface temperatures and the presence of chlorophyll and sediments in the water. Radar altimeter can detect sea-level changes and currents. Reflectivity is measured by radar and visual observations, and can indicate the direction and intensity of winds, waves, eddies, internal waves (waves traveling in the water column rather than on the surface), and oil slicks.118 Ocean satellites Seasat and Nimbus 7 demonstrated that altimetry could measure currents and waves, and that ocean color detected from outer space was a proxy for surface chlorophyll and plankton blooms. Scatterometers measure surface wind, and microwaves can be used, even through clouds, to map ice and measure sea surface temperature.119 Radar altimeters provide one illustration. If a satellite altimeter sends a radar pulse to the surface of the ocean, and the time it takes for the signal to travel back to the antennae can be measured with precision, and the velocity of the pulse through the atmosphere is 114  Ibid., 93. 115  John Peña Craven, The Silent War: The Cold War Battle Beneath the Sea (New York: Simon & Schuster, 2001), 171–174. 116  Von Storch and Hasselmann, Seventy Years of Exploration in Oceanography, 93. 117  G.C. Ewing, ed., Oceanography from Space: Proceedings of Conference on the Feasibility of Conducting Oceanographic Explorations from Aircraft, Manned Orbital and Lunar Laboratories, held at Woods Hole, Massachusetts, August 24–28, 1964 (1965). 118  T.H. Guymer, P.G. Challenor and M.A. Srokosz, “Oceanography from Space,” in Under­ standing the Oceans, 193, 195, Table 11.2. 119  Jim F.R. Gower, “Oceans from Space, a Once-a-Decade Review of Progress: Satellite Oceanography in a Changing World,” in Oceanography from Space, eds. V. Barale et al. (Springer Science+Business Media, 2010), 1.

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also known, then the distance between the altimeter and the sea surfaces can be determined with considerable accuracy.120 This data, in turn, can be used to measure the trough and crest of waves and surface amplitude to remotely obtain reliable sea state information. Conclusion The U.S. Navy still maintains a dominant position in marine science. The fiscal year 2013 budget authorization for the conduct of naval science and technology is $2 billion.121 In comparison, the entire NSF budget is less than $7 billion for all accounts.122 Despite the confluence of interests between the Navy and oceanographers, there is a decisive difference in their views on the ultimate utility of basic research. This difference stems largely from scientists’ limited perception of science as the capital for new technology, and the Navy’s perception of science as the collection of operational data for existing technology.123 Today there is a growing sense that it is healthier to maintain a sharper distinction between civilian and military activities in ocean research.124 At least that is certainly the case in Europe, and particularly in Germany, which has a different history regarding the collaboration between science and the military.125 Some believe close Navy-University cooperation in the post-war era eroded academic freedom, and that the Oceanographers lost their innocence because they had to compromise the focus of their research to attract Federal money.126 One hundred years ago, Anglo-American navies teamed up with scientists to better understand the physical environment of the oceans in order to more effectively counter the threat of German submarines. Out of the partnership emerged a symbiotic relationship between the armed forces and applied science that has endured to the present. This enduring bond, formed by the union 120  Guymer, Challenor and Srokosz, Oceanography from Space, Table 11.2, 196. 121  Statement of Rear Admiral Matthew L. Klunder, U.S. Navy, Chief of Naval Research, before the Intelligence, Emerging Threats and Capabilities Subcommittee of the House Armed Services Committee on the Fiscal year 2014 Budget Request, April 16, 2013, 1. 122  National Science Foundation Budget Request to Congress Fiscal Year 2013, February 13, 2012, 2. 123  Jacob Darwin Hamblin, “The Navy’s ‘Sophisticated’ Pursuit of Science: Undersea Warfare, the Limits of Internationalism, and the Utility of Basic Research, 1945–1956,” Isis 93:1 (March 2002), 1. 124  Von Storch and Hasselmann, Seventy Years of Exploration in Oceanography, 93. 125  Ibid. 126  Hamblin, Oceanographers and the Cold War, xxvi–xxvii, 8.

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of two distinct epistemological communities, produced virtually all of the major breakthroughs in oceanography. The patronage role of the government was mutually beneficial, helping scientists gain major support for their scientific work, and advancing the security of the state.127 From its emergence out of the Enlightenment, ocean science has a four hundred year history of indelible impact on oceans governance. As institutions that operate at sea, navies have been at the forefront of ocean science. While navies continue to focus on classic conventional and nuclear security issues, their relationship with the role of science in environmental security and human security is becoming stronger.

127  Ki Won Han, The Rise of Oceanography in the United States, 1900–1940 (Ph.D. diss., University of California, 2010), 203.

Part 3 Ecosystem Management and Sustainability in Ocean Resources Use

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Chapter 3

A European Law Perspective: Science, Technology, and New Challenges to Ocean Law Ronán Long Introduction Over the past number of years, I have worked on reviewing some of the law and policy considerations that are influencing the implementation of an ecosystem-based approach to the management of the various activities that take place in the European marine environment.1 In light of this experience, it is with much gratitude that I thank Professor Scheiber for the opportunity to deliver a keynote at this prestigious conference here in Berkeley and to contribute to a volume of chapters written by truly distinguished jurists, legal academics, practitioners, scientists, policy professionals, historians, as well as many other experts, on the topic of science, technology and new challenges to ocean law. For reasons that I hope are self-evident, I have taken a European Union (EU) legal perspective on the subject matter of this chapter, and focus much of my discussion on some of the challenges and indeed the legal impediments on putting scientific advice and technology to good use in EU regulatory and policy processes, which is a multifaceted milieu at the best of times. The subject of ecosystem-based management is certainly stimulating and in my view it is closely linked with the role of law as an instrument for regulating and managing human activities that impinge upon the marine environment. Moreover, our European project team has been greatly influenced by the groundbreaking research undertaken at Boalt Hall by Dr. Harry Scheiber, including his seminal article on ecosystem-based management, which was

* Jean Monnet Chair European Union Law and Personal Professor, School of Law, National University of Ireland Galway, Ireland. A special thanks to Jordan Diamond at Berkeley Law for her administrative support in preparing this paper for publication. 1  Further information is available at www.ODEMM.com. Also see, Ronán Long, “Legal Aspects of Ecosystem-Based Marine Management in Europe” in Aldo Chircop, Moira McConnell, Scott Coffen-Smout (eds.), Ocean Yearbook, Vol. 26, (Boston/Leiden: Brill Academic Publishers, 2012), 417–484.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004299610_005

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first published in the Ecology Law Quarterly in 1997.2 Dare I say it, as many of you are aware, much of his scholarship was undertaken a decade before the EU or indeed European coastal States sought to apply the ecosystem-based management as one of the principal normative approaches to the many tasks undertaken in modern ocean governance. In so many ways, Harry is both a trailblazer and a pre-eminent academic scholar on numerous facets of international and public law. In Europe, we have benefited from his industry and his invaluable insights into how best to resolve some of the intractable problems associated with economic uses of the ocean. Therefore, I am doubly grateful for this opportunity to pay homage to a great professor who has informed much of our thinking on ecosystem-based management, as well as in several other specialist fields of inquiry pertaining to ocean law. Surely, there is no finer tribute to commemorate the memory of the illustrious Stefan Riesenfeld than the work undertaken by Harry and his colleagues in Berkeley, which continues to inform the laws and policies of Stefan’s country of birth and early career before he moved to the United States.3

Some General Remarks on the Role of Science and Technology in Ocean Law

As is well documented in the specialist literature, the rights and duties set down in the United Nations Convention on the Law of the Sea (hereinafter, the 1982 Convention) are applied frequently if not continuously in a number of diverse fields of scientific inquiry and marine technology.4 Moreover, the universal right of enjoying the benefits of scientific progress is codified in several human rights instruments.5 Accordingly, perhaps it is pertinent to 2  Harry N. Scheiber, “From Science to Law to Politics: An Historical View of the Ecosystem Idea and Its Effect on Resource Management,” Ecology Law Quarterly 24 (1997): 631–761. 3  John Briscoe, Keynote address, “Stefan Riesenfeld,” 12 October 2013. 4  Parts XIV and XV, United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. 5  Article 27(1), Universal Declaration of Human Rights; and Article 15(1) International Covenant of Economic, Social and Cultural Rights. See William Schabas, “Study of the right to enjoy the benefits of scientific and technological progress and its applications,” in Human Rights in Education, Science and Culture: Legal Developments and Challenges, ed. Yvonne Donders and Vladimir Volodin (Paris: UNESCO, 2007), 273–308; Audrey Chapman, “Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications,” Journal of Human Rights 8.1 (2009), 1–36.

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start by pointing out that in this era of globalization, many governments and international organizations are turning to science and technology to address worldwide problems, rather than by recourse to the more traditional methods of intervention. What is unusual about this phenomenon is that they are not acting alone. For example, Simon Kuper writing in the Financial Times, has noted that technology companies are also influencing political and social problems as evidenced by the so-called Facebook and Twitter revolution in the Middle East, Google’s private humanitarian mission to North Korea, as well as the noble endeavours made by the Gates Foundation to eradicate disease and poverty in developing countries.6 There is some support, therefore, for the view that recent trends in transnational relations seem to be increasingly linked with a new understanding of the role of science and technology in facilitating innovative solutions by private and public bodies to long-standing worldwide, regional and national problems. This phenomenon is undeniably true at a European regional level, where the crucial role that science, technology and innovation play in competiveness is no longer disputed, nor indeed does it lack a solid legal foundation.7 Au contraire, the European treaties mandate expressly the advancement of science and technology as core objectives that lie at the very heart of European efforts to integrate the political and economic systems of the Member States.8 To this end, the EU is one of the biggest spenders on ocean science research programmes at a global level.9 What is more, over the past two decades, it has 6  See, Simon Kuper, “In tech we trust,” Financial Times, 7–8 September 2013. 7  Ronán Long, “Regulating Marine Scientific Research in the European Union: It Takes More Than Two to Tango,” in Myron Nordquist, John Norton Moore, Fred Soons, and Hak-So Kim (eds.), The Law of the Sea Convention: U.S. Accession and Globalisation, eds. Myron Nordquist, John Norton Moore, Fred Soons, and Hak-So Kim, (Leiden/Boston: Martinus Nijhoff Publishers, 2012), 427–491. 8  Article 3(3) of the Treaty on European Union. 9  There was an expenditure of about € 1.4 billion between 2007–2010 on marine and maritime research related projects. The overall spending on research in the EU is nothing short of impressive. According to the European Commission, this figure amounts to close to onequarter of total world expenditure on research, resulting in one-third of all high impact publications and patent applications. Communication from the Commission, “Enhancing and focusing EU international cooperation in research and innovation: A strategic approach,” COM (2012) 497 final, Brussels, 14 September 2012: 2; see also Commission Staff Working Document, SWD (2012) 258 final, Brussels, 14 September 2012, available athttp://ec.europa .eu/research/iscp/pdf/staff_working_paper_com_2012_497.pdf.

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adopted many legal instruments and policies that are science-driven in substance and orientation in fields such as: energy, fisheries management, nature conservation, spatial management of the marine environment, maritime security, immigration, and climate change, to name but a few.10 The rationale for such an approach is multidimensional and underpinned by greater political awareness of the importance of maritime sectors to the future peace, growth and economic prosperity of the EU. As will be seen further on below, this is only the beginning, and there are many new initiatives underway in Europe to improve the way that science and technology are applied to enhance the management of ocean resources, address new challenges concerning the protection of the marine environment, and deal with discrete areas of public law such as irregular migration and smuggling by sea. Yet, at the same time, the relationship between European law, science, and technology is undeniably complex and sometimes appears to be in a perpetual state of flux. As a result, opinion is often divided within the European institutions and in the Member States on how best to integrate scientific advice and technical developments into decisions and policies to control activities that take place at sea. Most conspicuously, within this maelstrom, the Court of Justice of the European Union has sought to ensure that the law is observed and applied in accordance with the letter and tenor of the European Treaties.11 In particular, the Court has held that decisions based upon scientific advice must uphold the axioms of excellence, transparency and independence.12 Moreover, the European institutions themselves have been quick to use new technologies where warranted, such as for vessel monitoring and remote sensing purposes.13 In marked contrast, despite the undeniable significance of the evolving body of jurisprudence emanating from the European Court of Human Rights in cases with a maritime dimension,14 many countries appear to be less inclined to 10  11  12  13 

See discussion infra. Article 19 of the Treaty on European Union. Case T-70/99, Alpharma v. Council [2002] ECR II-3495, para. 183. Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, OJ L 112/1, 30.4.2011. See Ronán Long and Peter Curran, Enforcing the Common Fisheries Policy (Oxford: Blackwell Science, 2000), 314–326. 14  See the decisions of the European Court of Human Rights, inter alia: Rigopolos v. Spain (Application no. 37388/97) 12 January 1999; Medvedyev v. France (Application no. 3394/03) 29 March 2010; Xhavara and Others v. Italy and Albania (Application no. 39473/98) 11 January 2001; Hirsi Jamaa and Others v. Italy (Application no. 27765/09) 23 February

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apply technology constructively in novel areas such as to monitor compliance with human rights obligations during the course of law enforcement operations at sea.15 Similarly, at the level of the European citizen, the role of science in public policy decision-making is often poorly understood, as typified by the recent controversy in Ireland concerning the development of large-scale offshore salmon farms in Galway Bay.16 This process is not helped by highbrow academic discourse by epistemic communities on subjects, such as the applicability of normative principles in dispute settlement, or the most appropriate interface between science and the law in a given case, or the primacy of the peer review process in benchmarking the merit of scientific research. Conversely, European civil society and environmental organizations are concerned about practical matters that have scientific and technical facets, such as the activities of the Japanese whaling fleet in Antarctica,17 or the commercial exploration of the Arctic for hydrocarbons,18 or, indeed, the absence of appropriate international standards for offshore drilling at the Macondo Prospect, and the resulting calamity in the Gulf of Mexico.19 As is plain for all to see, these and similar incidents are placing new stresses on the traditional role of science and technology in ocean management and governance. 2012. See also Douglas Guilfoyle, “Mevedyev and Others v. France, European Court of Human Rights,” International Journal of Marine and Coastal Law 25 (2010), 437–442; by the same author, “The Laws of War and the Fight against Somali Piracy: Combatants or Criminals,” Melbourne Journal of International Law 11 (2010), 141–153. 15  As noted by the European Union Agency for Fundamental Rights, “Fundamental rights at Europe’s southern sea borders,” Vienna, EUAFR (2013), 154. 16  See Martin Krkošek et al., “Comment on Jackson et al. ‘Impact of Lepeophtheirus salmonis infestations on migrating Atlantic salmon, Salmo salar L., smolts at eight locations in Ireland with an analysis of lice-induced marine mortality,” Journal of Fish Disease (2013), available at http://www.salmon.ie/files/2013/130821Krkosek-et-al-comment-on-Jacksonet-al-2013.pdf. For press reports also see, inter alia: Fintan O’Toole, “If you can’t win the scientific argument, suppress it,” Irish Times, 16 September 2013; Derek Evans, “Salmon Watch Ireland Welcomes Reopening of File on Sea Lice Issue,” Irish Times, 2 December 2013. 17  Institute of Cetacean Research et al. v. Sea Shepherd Conservation Society, No. 12-35266 (9th Cir., 2013). 18  See ITLOS Order in the “Arctic Sunrise” case, Kingdom of the Netherlands v. Russian Federation, 22 November 2013. 19  See Ashley Roach, “International Standards for Offshore Drilling,” in The Regulation of Continental Shelf Development: Rethinking International Standards, eds. Myron Nordquist, John Norton Moore, Aldo Chircop, Ronán Long (Leiden/Boston: Martinus Nijhoff, 2013), 105–152.

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Churchill and Lowe noted well over a decade ago, this trend is compounded by the “irresistible lure of profits and resources,” which is compelling States and international bodies to adopt a range of pragmatic legal solutions in regulating oceanic activities.20

Structure and Content

With some of the aforementioned remarks in mind, the aim of this chapter is to describe some of the features of EU ocean law, as well as the complex structures and procedures for the delivery of scientific and technical advice within the European institutions. This part is followed by a short assessment of the standards that apply to the use of such advice for EU regulatory and policy purposes in matters such as ecosystem-based management. Thereafter, three aspects of present-day legal developments with a scientific and technology dimension are outlined, namely: fisheries management under the European common fisheries policy; the tragedy of irregular migration by sea with a particular focus on the Mediterranean Sea; and some maritime aspects of the EU response to climate change. The chapter concludes by identifying a number of contemporary trends in EU law and policy that suggest that the future of many marine related activities will be shaped by the results of scientific research, as well as the application of new technologies to the practical aspects of ocean management, with the ultimate goal of giving greater effect to the rule of law as it applies to the ocean.

EU Perspective on New Challenges: Res ipsa loquitur

As noted by James Kraska in this volume, the ancient and modern history of Europe are very much linked with the ocean.21 Down through the ages, European maritime powers have influenced the progressive development of the law of the sea including the major codification efforts in the 20th century.22 20  Robin Churchill and Vaughan Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 3. 21  James Kraska, “From the Age of Discovery to the Atomic Age: The Conflux of Marine Science, Seapower and Oceans Governance”, Chapter 2 of this volume. 22  See, inter alia: David J. Bederman, “The Sea,” in The Oxford Handbook of the History of International Law, eds. Bardo Fassbender, Anne Peters, Simone Peter and Daniel Högger (Oxford University Press, 2012), 359–378; Myres McDougal & William Burke, World

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If we look back, history teaches us that the law applicable to maritime activities evolves continuously in light of scientific and technical knowledge, as well as with the changing relationships of human interactions with the sea. Today, the EU is one of the world’s largest trading blocks, and its 28 Member States derive important rights from this unique regional integration organization that impact upon maritime matters. The relationship between the EU and the Member States is intricate as a result of the transfer of legal competence from the Member States to the EU in several policy fields, some of which are science and technology dependent, such as in the management of fisheries and the protection of marine biodiversity. Importantly, however, the EU can only act within the limits of the powers conferred on it by the Member States.23 In many other areas such as maritime delineation and delimitation, the powers to conclude international agreements and to legislate remain with the Member States at a national level.24 When viewed from a distance, there are several geographical, economic and political features of European integration that catch the eye because of the manner in which they shape the progressive development of ocean and coastal law at both the level of the EU and the Member States. Chief among these elements are demographic and spatial considerations that stem from the fact that over 200 million Europeans live in coastal cities and regions. Likewise, the economic importance of the maritime sector should not be underestimated, as it contributes close to half a trillion euros to Member State GDP annually.25 As a global economic power, shipping is the lifeblood of the EU and fundamental to the future prosperity of Europe with over 75 percent of foreign trade by volume and close to 35 percent of internal trade going by sea.26 As will be seen further

23  24 

25 

26 

Public Order of the Oceans (New Haven: Yale University Press, 1958); Daniel O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1982); Ram Anand, Origin and Development of the Law of the Sea (The Hague: Martinus Nijhoff, 1983). Article 5(2) of the Treaty of European Union. Ronán Long, “Stepping over Maritime Boundaries to Apply New Normative Tools in EU Law and Policy,” in Maritime Border Diplomacy, eds. Myron Nordquist and John Norton Moore (Boston/Leiden: Martinus Nijhoff Publishers, 2012), 213–264. In 2012, it was estimated at € 495 billion Gross Value Added. See para. 3 of the Declaration of the European Ministers responsible for the Integrated Maritime Policy and the European Commission, on a Marine and Maritime Agenda for growth and jobs adopted at Limassol during the Cyprus Presidency of the Council of the European Union.  Copy available at: http://ec.europa.eu/maritimeaffairs/policy/documents/limassol_ en.pdf. See Communication from European Commission, Blue Growth opportunities for marine and maritime sustainable growth, COM(2012) 494 final, Brussels, 13 September 2012, at 1.

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on below, the European shipbuilding industry is seeking to rely on technology and innovation to remain competitive at a global level and to reduce its environmental footprint. Also, in this volume, Tara Davenport’s chapter highlights the importance of submarine cables to global security, with 90 percent of all Internet traffic routed by means of seabed cables (optical fiber).27 Similar concerns have been raised at a major European workshop, which highlighted the importance of seabed interconnectors and pipelines to Europe’s long-term energy security needs.28 There are several other technology-driven sectors that are influencing the progressive development of discrete areas of ocean law. Most notably, following the Fukushima disaster in Japan, several European countries, including Germany, Belgium, Spain and Sweden, have commenced the process of decommissioning their nuclear power plants. At the same time, over a dozen EU Member States are developing renewable energy to meet their international commitments to reduce greenhouse gas emissions.29 As became evident during the course of my work on the European ODEMM project,30 there is also a major shift in emphasis in EU law and policy towards ensuring the protection of marine ecosystem goods and services, most notably by relying on a number of scientific and legal mechanisms that are given effect by the Marine Strategy Framework Directive.31 Furthermore, the EU is committed to implementing ambitious programmes aimed at improving ocean observation, marine scientific research, and the mapping of the seabed, all by 2020. The EU and its Member States cannot be viewed in isolation, as they are a pivotal part of the global community. As such, they face precisely the same threats to international peace and security as sister countries around the world. Some of the most pressing maritime challenges stem from illegal migration from Africa and the Middle East, as well as the crimes of piracy and armed robbery at sea. The latter continues to threaten seaborne trade between Europe, Asia and Africa. The International Maritime Organization (IMO) recorded 27  Tara Davenport, “Science and Submarine Communications Cables: A New Frontier for Ocean Governance”, at Chapter 8 in this volume. 28  See 2013 Aspen European Strategy Forum, 23–25 October 2013. 29  Ronán Long, “Offshore wind energy and ecosystem-based management: Are the EU regulatory answers really blowing in the wind?,” in M. Nordquist, J. Norton Moore, A. Chircop, R. Long, Ed., The Regulation of Continental Shelf Development: Rethinking International Standards (Leiden/Boston: Martinus Nijhoff, 2013), pp. 15–52. 30  Op cit., supra note 1. 31  Ronán Long, “The EU Marine Strategy Framework Directive: A new European approach to the regulation of the marine environment, marine natural resources and marine ecological services,” Journal of Energy And Natural Resources Law 29.1 (2011), 1–45.

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the figure of 341 pirate attacks on shipping in 2012, with many vessels subject to incidents while on passage to and from Europe.32 The IMO estimates that there were 6,569 incidents of piracy and armed robbery against ships worldwide between 1984 and 2012.33 The number of attacks in the Mediterranean Sea (six) and the North Atlantic (one) is not hugely significant but the high level of incidents in the Arabian Sea, East Africa, the Gulf of Guinea, the South China Sea, and the Straits of Malacca, continue to have a major bearing on the cost of insurance as well as other operational matters for European and global shipping. There are many other maritime law enforcement problems, including the unabated nature of illegal, unreported, and unregulated fishing, which are destroying fisheries worldwide. The European Commission has identified illegal fishing, drug smuggling, and human trafficking at sea as priority law enforcement tasks.34 Moreover, this is one of the chief reasons why the EU is establishing an electronic system to undertake integrated maritime surveillance, with the specific aim of improving law enforcement at sea through greater use of remote sensing technologies and the sharing of surveillance information at a pan-European level.35 In Europe, the pollution of the marine environment remains of primary concern, with the near collapse and destruction of marine ecosystems in the Black Sea and Baltic Sea, and the risk of similar catastrophe in the North Sea and Arctic Ocean.36 Again, the overall scientific picture is pretty grim with the European Environment Agency (EEA) noting that a miniscule 8 percent of coastal habitats and 10 percent of marine habitats have achieved an appropriate conservation
status in line with the targets set down by EU biodiversity instruments.37 Many marine and coastal species and habitats are at serious risk of extinction unless appropriate management and conservation measures are implemented immediately.38 If one paraphrases the findings of the EEA report on the quality 32  Annual Report 2012 Acts of Piracy and Armed Robbery Against Shipping, IMO MSC.4/ Circ. 193, 2 April 2013. 33  Ibid. 34  See speech of the European Commissioner for Maritime Affairs and Fisheries, Damanaki, “Maritime Security: an EU approach,” European Commission, Speech/13/289, 8 April 2013, available at: http://europa.eu/rapid/press-release_SPEECH-13–289_en.htm. 35  See discussion on fisheries law enforcement infra. 36  European Environment Agency, The European environment—state and outlook 2010: marine and coastal environment, (Copenhagen: EEA, 2010). 37  Ibid., at 12. 38  Ibid., at 14.

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and status of the European marine environment, the success of the regulatory framework is contingent upon four factors, namely: (1) enhanced implementation of existing conservation instruments; (2) greater policy coherence with the regulatory regimes governing other maritime sectors; (3) application of an ecosystem-based management approach to the task of ocean governance; and (4) engendering greater public appreciation of the intrinsic value of marine biodiversity to maintaining a healthy ocean.39 The EEA observed that the EU has considerable difficulty in dealing with scientific uncertainty, reconciling competing values, and in using science and technology as tools in decisionmaking and policy implementation.40 This is not helped by the cumbersome architecture within the European institutions for the delivery of scientific and technological advice to inform the policy and regulatory processes that are in place at a pan-European level to address matters of common concern to the Member States and to the EU more generally in a global context.

Institutional Architecture for Delivering Scientific and Technical Advice

A fundamental objective of the EU’s integrated maritime policy is to strengthen interdisciplinary and multidisciplinary approaches to scientific inquiry in support of the formulation and implementation of sector policies on the environment, shipping, energy, regional development, fisheries and climate change.41 In this regard, the European Commission perceives scientific research and technology as one of the keys to “decoupling the development of sea based activities from environmental degradation.”42 One obvious shortcoming in EU law, however, stems from the considerable complexity that arises from the institutional architecture for the delivery of scientific and technological advice to the services of the European institutions and the Member States for regulatory and policy purposes. This particular topic merits a study in its own right. Suffice to note here that the principal EU institutions (the European Commission, the Council, and the European Parliament) depend upon advice from many specialist agencies and bodies such as the Joint Research Centre (discussed below), whose mission is to provide independent, evidence-based scientific and technical 39  40  41  42 

Ibid., at 5. Ibid. COM(2007) 575 final. Brussels, 10 October 2007. Ibid., at 11.

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support throughout the whole policy cycle. Internally within the EU institutions, specialist scientific committees made-up of experts from the Member States deliver advisory support during the course of the law-making process. This work is very much complemented by the scientific reports and findings of many international bodies such as the International Council for the Exploration of the Sea [ICES], the United Nations Environment Programme, the Organization for Economic Cooperation and Development, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Intergovernmental Oceanographic Commission, as well as the International Organization for Standardisation, among many others. The EU has formalized the working relationship with many of these external scientific bodies by concluding agreements on the delivery of scientific advice for policy development and implementation. A good example is the Memorandum of Understanding (MOU) that has been concluded with ICES pertaining to advice concerning the management of activities that affect marine ecosystems, as well as advice that relates to international agreements that are binding on the EU and the Member States such as the 1995 United Nations Fish Stocks Agreement.43 Advice relating to fisheries and aquaculture, the Marine Strategy Framework Directive, the Arctic Ocean, and all sustainable uses of the North Atlantic Ocean, come within the scope of the MOU. The importance of the relationship between ICES and the European Union, and with other international bodies concerned with ocean affairs such as OSPAR, is very much intrinsic to the EU approach to modern ocean governance. The advice is usually in the form of recommendations for action (regulatory and otherwise), and is independently peer reviewed. In general, this system has served the EU well but suffers from a fatal flaw in that scientific recommendations are not legally binding on the European institutions or the Member States. A number of specialist agencies with a scientific and technical remit were established under the Treaties and secondary legislation. Indeed, a cursory examination of the institutional landscape reveals that there is a proliferation of bodies (over thirty) spread-out across Europe, who as independent 43  Agreement in the form of a Memorandum of Understanding between the European Union and the International Council for the Exploration of the Sea, available at www.ices.dk/ community/advisory-process/Documents/2013_EC_ICES_MoU_WEB.pdf. The full title of the 1995 Fish Stocks Agreement is: 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, entered into force 11 December 2001, 2167 UNTS 88; (1995) 34 ILM 1542.

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legal entities are tasked with providing scientific, technical, operational and regulatory advice to the European Institutions and the Member States. In particular, the Commission’s in-house advisory service, the Joint Research Centre, which has 2,500 scientific and technical staff, provides advice to support the development of Union policies such as fisheries, environment and maritime safety and security. Similarly, the European Environmental Agency (EEA) plays an important role in collecting, evaluating and publishing information on the status of the marine environment. Into the bargain, there are several specialist agencies whose mandate is focused on specific aspects of maritime affairs and these include the European Fisheries Control Agency, the European Agency for the Management of Operational Cooperation at the External Borders, the European Maritime Safety Agency, and the European Network and Information Security Agency. Several non-governmental organizations, such as the European Marine Board, play an essential role by agreeing common positions on research priorities and outlining strategies for the future development of EU policies.44 The national scientific agencies in the Member States, such as the French Research Institute for Exploitation of the Sea (IFREMER), have fostered a close working relationship with the European institutions. Moreover, similar to other national bodies, they provide experts for the many specialist scientific committees that serve the work of the European institutions in the law-making process on a day-to-day basis. Typical of the these bodies is the Scientific, Technical and Economic Committee for Fisheries (STECF), which is an independent body made up of experts in the fields of marine biology, marine ecology, fisheries science, nature conservation, population dynamics, statistics, fishing gear technology, aquaculture, and the economics of fisheries and aquaculture. They are consulted by the Commission at regular intervals on draft legislation concerning the conservation and management of living aquatic resources, including biological, economic, environmental, social and technical considerations. Members of STECF are appointed in their personal capacity and they must act independently of Member States and the interests of the various stakeholder groups for the various ocean regions. Across the European institutions, there are many similar specialist committees that provide advice on different aspects of Union law with respect to marine affairs and related policy themes. 44  The European Marine Board also host a major marine science conference on an annual basis (referred to as EurOcean), where many contemporary ocean related problems are subject to detailed analysis and further discussionFor further information, see http:// www.eurocean.org.

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Technology is critical to the work of such scientific groups and a pertinent example of inter-jurisdictional collaboration is the rolling-out of new electronic tools such as the Marine Observation and Data Network at a pan-European level.45 The network is based upon the view that “each country’s territorial or jurisdictional waters are part of a dynamic global system connected by shifting winds, seasonal currents and migrating species” and therefore there is need for easy and quick access to numerous sources of scientific information.46 At a multilateral level, European scientific experts have also been very active in the work programme of the United Nations including contributing to the formulation of the annual General Assembly resolution on oceans and the law, the open-ended Informal Consultative Process on Oceans and the Law of the Sea, meetings of the Ad Hoc Open-Ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction, as well the meetings of States Parties to the 1982 Convention. Recently, the EU has taken a lead in providing technical and scientific expertise as well as financial support to the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socioeconomic Aspects. The first World Ocean Assessment, when it is published at the end of 2014, will provide a scientific baseline that informs EU and global policy decisions regarding the sustainable management of the marine environment and the resources it supports. This is a long over-due and welcome development that will help close the scientific information deficit about the environmental status of the world’s oceans and the resources therein. In summary, there is a multiplicity of bodies and expert groups engaged in the provision of scientific advice for a wide variety of purposes. In the main, regional cooperation on the provision of scientific advice is institutionalised within EU, inter-governmental and national organizations, for the purpose of discharging many of the tasks associated with the formulation and implementation of ocean law and policy, including obligations that arise on foot of the 1982 Convention and associated agreements. Similarly, the general trend is to use the good offices of specialist scientific bodies or committees, established on transnational basis, to undertake many of the functions associated with the delivery of advice and the application of new technologies in discrete EU policy areas that have a maritime dimension.

45  See European Commission Staff Working Paper, Building a European marine knowledge infrastructure: Roadmap for a European Marine Observation and Data Network, SEC (2009) 499 final, Brussels, 7 April 2009. 46  Ibid., at 9.

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What Standards Apply to Scientific Advice in the EU?

From a legal perspective, this question does not appear to have any easy answers. Indeed, any tentative answer is very much contingent upon the field of policy or regulatory inquiry. In many instances, nonetheless, EU primary and secondary law sets down express requirements regarding the use of scientific information and new technologies for the purpose of providing policy advice and to assist the European institutions and the Member States in the formulation and implementation of the law in specific policy areas. Thus, for example, the Treaty is unequivocal in so far as it provides explicitly that the Union must take account of available scientific and technical data in preparing its policy on the environment.47 This obligation extends to taking account of the environmental conditions in the various regions of the Union, the potential benefits and costs of action or in-action, the economic and social development of the Union as a whole, as well as the balanced development of its regions.48 Clearly, these are very broad requirements, which present their own challenges when it comes to implementing some of the EU environmental instruments such as the Marine Strategy Framework Directive.49 Perhaps one noteworthy feature of the Treaty is that it requires nothing more than account to be taken of “available” scientific and technical data (emphasis added).50 Following a literal interpretation of the Treaty provisions, one leading scholar has concluded that the European institutions do not, strictu sensu, have to commission their own scientific reports or studies or indeed establish that a particular management or legislative measure will be effective.51 Indeed, the application of the precautionary principle allows for the adoption of regulatory measures under EU policies such as climate change or fisheries management, where scientific evidence is considered to be “insufficient, inconclusive or uncertain”, provided there are indications of potentially dangerous effects to health or the environment if the proposed action is not taken.52 Metaphorically speaking, this aspect of EU law is a minefield and one has to thread softly across the legal landscape. Fortunately, much guidance may be derived from the jurisprudence of the Court of Justice, which has ruled on 47  48  49  50  51  52 

Article 191(3) of the Treaty on the Functioning of the European Union (TFEU). Ibid. See discussion of the Marine Strategy Framework Directive, infra. Article 191(3) of the TFEU. Ludwig Krämer, EU Environmental Law 7ed. (London: Sweet and Maxwell, 2011), 28. See European Commission Communication on the precautionary principle, COM (2000) 1, Brussels, 2 February 2000.

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the application of scientific information in administrative and law-making practices and procedures.53 Apart from imposing a duty of due diligence on the European institutions and the obligation to undertake an impartial examination of all aspects of the scientific evidence at hand, the Court demands that scientific advice must reflect international best practice and the empirical standards and methods commonly used by the pertinent scientific community.54 For that reason, the requisite standard may be sector specific and vary according to the specialist field of scientific inquiry such as health, toxicology, biology, chemistry, fisheries science, and so forth. In line with best practice, information must be based upon the latest scientific information available and the obligation to obtain such information extends to all of the bodies or specialist committees involved in public policy decisions or in regulatory processes.55 In light of the treaty obligations and for obvious reasons relating to human safety, particularly high standards are demanded as a matter of practice in EU policy areas that impinge upon consumer protection and public health. The same cannot be said in relation to controversial policies such as the management of fisheries under EU law, which continues to be problematic as will be seen further on below.56

Dealing with Scientific Uncertainty

In her chapter in this volume, Kathryn Mengerink makes brilliant reference to the “unknown unknowns.” and to our limited scientific understanding of human impacts on the deep ocean.57 We can see, however, some differences between the European and the United States approaches to ocean policy decisions when it comes to addressing the “known unknowns,” and in responding to the challenges and conundrums presented by scientific uncertainty in decision-making under EU law and policy processes. Specifically, the absence of definitive scientific evidence does not impede the EU from adopting legislative measures or indeed from making a policy 53  Much of the early case law on this aspect of Union law was developed in the context of the derogations to the fundamental freedoms of free movement of goods, persons and services under the Treaty. 54  Case T-70/99, Alpharma v. Council [2002] ECR II-3495. 55  Case C-212/91, Angelopharm GmbH v. Freie und. Hansestadt Hamburg [1994] ECR I-171. 56  See Part 1 infra. 57  Kathryn Mengerink, “The Deep Ocean: Advancing Stewardship of the Earth’s largest Living Space,” at chapter 7 in this volume.

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intervention in order to protect the marine environment and the resources that it supports on the basis of the normative principles set down in the Treaty or EU secondary legislation. These principles include the precautionary principle, the principles that preventive action should be taken to prevent degradation of the environment, that environmental damage should be rectified at source, and that the polluter should pay.58 These principles are canvassed elsewhere in the academic literature and it may therefore be appropriate to restrict the discussion here to a brief number of comments about their application in Europe.59 First and foremost, the precautionary principle provides a legal basis for the adoption of a particular course of action or regulatory measure in the absence of definitive scientific evidence.60 In contrast to its evolving status under international law,61 the precautionary principle is established and legally binding pursuant to the European treaties since the 1990s.62 As a result, secondary legislation pertaining to the marine environment tends to be permeated with references to the necessity of taking precautionary measures where warranted. Difficulties have arisen, however, because there are a number of different formulations of precaution, and the Court of Justice and the European Commission have both been active in enunciating a number of rules regarding its practical application as a legal principle. In the context of fisheries law, for example, the principle means that the absence of adequate scientific information or definitive scientific opinion should not justify the postponement or failure to take management measures.63 Where there is scientific uncertainty, the precautionary principle is enabling in so far as the European institutions may adopt appropriate regulatory or policy measures without having to wait for definitive science regarding the potential risk of anthropogenic or human impacts. Crucially, they may adopt such measures to prevent “specific risks to public health, safety and the

58  Article 191 (2) of the TFEU. 59  For further information, see Ronán Long “Principles and normative trends in European Union ocean governance,” in The Limits of Maritime Jurisdiction, eds. Clive Schofield, Seokwoo Lee, and Moon-Sang Kwon (Boston/Leiden: Brill/Nijhoff, 2014), 629–726. 60  Case T-13/99 Pfizer v. European Commission [2002] E.C.R. II-3305. 61  Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals Expert Evidence, Burden of Proof and Finality (Cambridge: Cambridge University Press, 2013), passim. 62  Joakim Zander, The Application of the Precautionary Principle in Practice: Comparative Dimensions (Cambridge: Cambridge University Press, 2010), 76–148. 63  Article 2 of the Basic Fisheries Management Regulation.

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environment, by giving precedence to the protection of those interests over economic interests.”64 Markedly, the existence and application of the precautionary has been the subject of a hefty volume of case law in the Court of Justice concerning the protection of the environment, which includes addressing regulatory matters concerning human welfare and health.65 More specifically, the Court has assessed the value of the principle as an interpretative tool in challenges to Union legislations and has held that if there is “uncertainty as to the existence or extent of risks to human health, the [European] institutions may take protective measures without having to wait until the reality and seriousness of those risks becomes fully apparent.”66 Moreover, the Court upheld the application of the principle in actions against national measures that impinged upon public safety.67 Instructively and in marked contrast to the preferred approach of the United States, the European Court has reviewed the compatibility of EU climate change measures with precautionary principle and has ruled that legislation that completely fails to have regard to the principle may be annulled.68 Putting the principle into practice poses an immense challenge to EU regulators and the supporting scientific bodies. In this regard, it is important to note 64  Joined Cases T-74/00 and T-76/00 Artegodan a.o v. Commission [2002] ECR II-4945. 65  Case C-331/88 Fedesa and Others [1990] ECR I-4023; Case C-405/92 Mondiet [1993] ECR I-6133; Case C-435/92 APAS [1994] ECR I-67; Case C-179/95 Spain v. Council [1999] ECR I-6475; and Case C-6/99 Greenpeace France and Others [2000] ECR I-1651; Case T-199/96 Bergaderm and Goupil v. Commission [1998] ECR II-2805, upheld on appeal by the Court of Justice in Case C-352/98 P Bergaderm and Goupil v. Commission [2000] ECR I-5291; Case C–157/96 The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, Ex p. National Farmers’ Union, David Burnett and Sons Ltd, R.S. and E. Wright Ltd, Anglo Beef Processors Ltd, United Kingdom Genetics, Wyjac Calves Ltd, International Traders Ferry Ltd, MFP International Ltd, Interstate Truck Rental Ltd and Vian Exports Ltd. [1998] E.C.R. I-02211; Case C-180/96 United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities [1998] E.C.R. I-0226; Pfizer Animal Health v. Council, Pfizer Animal Health v. Council; Case T-70/99 R Alpharma v. Council [1999] ECR II-2027 and by the EFTA Court (Case E-3/00 EFTA Surveillance Authority v. Norway, not yet published in the EFTA Court Reports); Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paras. 43 and 44; Case C‑6/04 Commission v. United Kingdom [2005] ECR I-9017, para. 54; and Case C‑418/04 Commission v. Ireland [2007] ECR I‑10947, para. 226; Case C‑2/10 Azienda Agro-Zootecnica Franchini sarl and Eolica di Altamura Srl v. Regione Puglia. 66  Case C-180/96, United Kingdom v. Commission [1998] ECR I-2265; Case C-157/96, National Farmers’ Union and Others [1998] ECR I-2211. 67  Case C-473/98, Kemikalieinspektionen and Toolex Alpha AB (2000) ECR I-5681. 68  Case C-341/95 Bettai v. Safety Hi-Tech SRL [1998] ECR I-4435.

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that the European Commission has also elaborated considerable guidance on the meaning and the application of the precautionary principle and suggested that its invocation is contingent upon two factors; firstly, the identification of potentially dangerous effects of a phenomenon or process by scientific and objective evaluation; and secondly this evaluation does not allow the risk to be determined with sufficient certainty.69 Moreover, according to the European Commission, legal and policy measures adopted to give effect to the principle should meet the following six criteria: (1) proportionate to the chosen level of protection; (2) non-discriminatory in their application; (3) consistent with similar measures already taken; (4) based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis); (5) subject to review in the light of new scientific data; and (6) capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment.70 Is risk assessment a pre-requisite to the adoption of precautionary measures? Strictly speaking, the European treaties are silent on the need for risk assessment prior to invocation of the precautionary principle.71 Further guidance on the relationship between the principle and risk assessment, however, can be derived from the case law of the Court of Justice. Instructively, the Court has ruled that: “preventive measure cannot properly be based on a purely hypothetical approach to risk, founded on mere conjecture which has not been scientifically verified.”72 On a similar note, the proper application of the precautionary principle presupposes “a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research.”73 On this point, the Court is very clear that a vague reference to a general risk does not justify the adoption of preventative measures on the basis of precautionary principle.74 In other words, 69  COM(2000) 1, 2 February 2000. 70  Ibid. 71  See L. Ludwig Kramer, EU Environmental Law (London: Sweet and Maxwell, 7th ed., 2011), 22. 72  Case T-70/99 Alpharma v. Council of the European Union [2002] ECR II-3495. 73  Case C-192/01 Commission v. Kingdom of Denmark, at para. 51. 74  Case C-24/00 Commission v. French Republic: “the French Republic may decide at what level it wishes to ensure the protection of human life and health” at para. 68 even if “there is no argument based on mainstream toxicology” suggesting a risk at para. 67. Sufficiently specific: “it merely refers vaguely to the possibility of a general risk of excessive intake, without specifying the vitamins concerned, the extent to which limits would be exceeded or the risk raised thereby,” at para. 61. See also Case C-420/01 Commission v. Italy [2003] ECR I-6445.

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an abstract or hypothetical risk does not trigger the adoption of precautionary measures in relation to the regulation or curtailment of offshore activities with a view to protecting the marine environment and their associated ecosystems. We can thus conclude from the case law that in circumstances pertaining to the protection to human health, the application of the principle requires in the first instance, a determination of what level of risk are acceptable, and secondly, undertaking a scientific risk assessment.75 This finding may be contrasted with the application of the precautionary principles under the EU common fisheries policy, discussed in Part below, which falls well short of the high standards that are demanded in other areas of EU law and policy. Finally, it is worth mentioning that the role of the Court of Justice in determining expert or scientific opinion is highly contentious and a fertile field for academic commentary.76 The role of the European Commission, which has considerable discretion on the appointment of scientific expertise for the myriad of specialist committees tasked with discharging important regulatory functions, has been questioned. In 2013, the European Ombudsman held that three principles should govern such appointments, namely: (1) excellence (2) independence and impartiality, and (3) transparency.77 Part I—EU Fisheries Law

Disregarding Scientific Advice on the Grounds of Political Expediency The success of fisheries management in Europe is very much contingent upon the structures and procedures that are in place for the integration of scientific advice into policy decisions concerning sustainable fisheries. As such, the common fisheries policy illustrates the tempestuous relationship that can often exist at the interface between science and law in the decision-making and regulatory processes within the EU institutions. Regrettably, we can all too often see that the Member States frequently fail to move beyond short-term

75  Case T-13/99 Pfizer Animal Health v. Council [2002] ECR II-3305 at para. 149; Case T-70/99 Alpharma v. Council of the European Union [2002] ECR II-3495 at paras. 152–160. 76  Ellen Vos, “The role of the European Court of Justice in the face of scientific uncertainty and complexity,” in Judicial Activism at the European Court of Justice, eds. Bruno de Witte, ‎Elise Muir, ‎Mark Dawson (Cheltenham: Edward Elgar Publishing, 2013), 142–167. 77  Decision of the European Ombudsman closing his inquiry into complaint 2558/2009/ (TN)DK against the European Commission, 4 January 2013.

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political and economic imperatives when faced with tough political decisions regarding fisheries management. Any retrospective review of European institutional practice reveals that the blatant disregard of scientific advice is a common feature of the practice of the Member States when exercising their voting rights in the Council of Ministers on setting the catch-limits for fish stocks. In the words of the European Commission, this practice is eroding the “ecological and economic basis” of fisheries management in Europe and damaging the international reputation of the EU as a good environmental actor on the world stage.78 To fully understand the catastrophic nature of this practice, attention needs to be drawn to some of the scientific findings published by the European Commission. In 2009, for instance, the Commission estimated that 88 percent of European fish stocks were being fished beyond maximum sustainable yield (MSY), and this figure included 30 percent of stocks that were then outside safe biological limits and facing imminent collapse.79 Incredibly, 93 percent of the cod in the North Sea were fished before they could reproduce, and as a result, the biomass of this stock is unlikely to recover to a level that can support a sustainable fishery.80 This shameful situation has been facilitated by policy decisions based on short-term political, economic and social considerations, at the expense of longterm environmental sustainability.81 According to the European Commission, this can be shown by two elements in the voting practice of the Member States in the Council of Ministers (the law-making body with the exclusive right to make decisions on the total allowable catch for over 130 fish stocks): First, the average percentage deviation of Council Total Allowable Catch [TACs] decisions from scientific advice (for stocks with such advice), for the years 2003–2010, was 47 percent. Since 2008 this deviation has been reduced to 34 percent in 2010. Nevertheless, TACs are still set well above what scientists recommend. Second, the number of stocks for which scientific advice was a zero TAC, and for which the Council adopted a positive TAC, was 17 on average for the period 2003–2010. It has been decreasing since 2007 (20) to 2010 (14) but still is high. The common fisheries policy establishes the precautionary approach to ensure sustainable exploitation of stocks and to ensure that the impact 78  79  80  81 

COM(2009)163 final, Brussels, 22 April 2009, 7. Ibid. Ibid. SEC (2011) 891, Brussels, 13 July 2011, 10–11.

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of fishing on marine ecosystems is kept at a sustainable level. De facto, the principle could amount to giving environmental sustainability some degree of precedence. However, it has been rarely used in reality, and in most situations, the general trend has been to roll-over TAC levels.82 This bleak situation is compounded by the absence of complete or definitive scientific advice on the status of many stocks that come within the scope of EU management measures. For instance, the OSPAR Commission has noted that as many as 56 stocks assessed by ICES out of a total of 130 commercial fish stocks in the OSPAR area, were designated as being of “unknown status” due to poor scientific data about their abundance during the reference period from 2003 to 2009.83 Overall, the scientific picture of both the status and prospects for European fish stocks is exceedingly pessimistic and is one of the predominate reasons why the CFP underwent an extensive period of reform that culminated with the adoption of a new basic regulation for fisheries management by the Council and European Parliament in 2013.84 The provisions in the new regulation on scientific advice and technology are scrutinized below, but first it is necessary to explore the discretionary nature of scientific advice in EU fisheries management decision and law-making procedures. Can Law Trump Science in EU Fisheries Management Decisions? Compliance and adherence with scientific evidence is frequently problematic in controversial policy areas such as fisheries. In some instances, these difficulties are compounded if the European institutions are vested with legislative discretion to adhere or reject scientific advice from advisory bodies such as the Scientific Technical and Economic Committee for Fisheries. Moreover, EU administrative law imposes a number of legal constraints on the oversight role of the Court in such instances. In judicial review proceedings, for example, challenging the European institutions’ obligation to take scientific data or advice into account in making a decision or adopting legislation, the role of the Court is limited, prima facie: “to examining whether the measure 82  Ibid. 83  See Figure 8.5 Status of ICES assessed stocks (excluding those in the Baltic Sea) for the period 2003 to 2009 in the OSPAR Quality Status Report 2010 (London: OSPAR Commission, 2010). 84  Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354/22, 28.12.2013.

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in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion.”85 In other words, in such proceedings, the Court is not concerned with the scientific merit or otherwise of the evidence underpinning a particular course of action or legislative measure. The heads of jurisdiction for review under the Treaty are clearly set down as follows: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relating to their application, or misuse of power.86 Despite the prescriptive nature of these requirements, questions concerning adherence to scientific advice are nonetheless submitted to the Court from time to time. Typical of the issues that arise can be seen in a case that addressed the prohibition on driftnet fishing for tuna in the North-East Atlantic.87 Ιn this instance, the French applicant contended, amongst other matters, that the EU prohibition of driftnets of more than 2.5 kilometres long was not justified on scientific grounds. Accordingly, the Court had to decide if it was possible for the Council to ignore arbitrarily the only scientific advice available to it when it adopted the prohibition, namely: the report of the Standing Committee for Research and Statistics of the International Commission for the Conservation of Atlantic Tunas; and an IFREMER/IEO report, which stated that driftnet fishing did not pose a problem relating to tuna resources or to other species in the marine environment (including a by-catch of dolphins). The Court pointed out that the scientific advice was advisory in nature and that: . . . the measures for the conservation of fishery resources need not be completely consistent with the scientific advice and the absence of such advice or the fact that it is inconclusive cannot prevent the Council from adopting such measures as it deems necessary for achieving the objectives of the common fisheries policy.88 The Court concluded that the Council had not exceeded the limits of its discretion, and that it was complying with a “widely held international opinion that the use of large-scale driftnets is an indiscriminate fishing method, which results in substantial by-catches that threaten the survival of species other

85  86  87  88 

Case C-331/88, Fedesa [1990] ECR I-4023, para. 8. Article 263(2) of the TFEU. Case C-405/92 Mondiet v. Armement Islais [1993] ECR I-6133. Case C-331/88, para. 31.

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than the target species.”89 The Court cited several international instruments that were both legally and non-legally binding to support this conclusion including the United Nations Resolution 44/225, the Wellington Convention, and the Berne Convention. The driftnet case is indicative of the fine line that the Court must observe when adjudicating on the exercise of discretion by the European institutions concerning the use of scientific advice and information for the purpose of legislation and administrative decision-making regarding the use of natural resources and the protection of the marine environment. In general, the Court has shown an unwillingness to review the scientific basis of decision-making, as well as the methods used, or to substitute its assessment of the facts for that of the EU institutions. On the other hand, as seen above, it has upheld the application of the precautionary principle in instances where there is scientific uncertainty.90 In other words, the conservation obligations that are set down in EU law and international agreements that are binding on the EU and the Member States are well capable of trumping the absence of definitive scientific evidence when it comes to regulating a particular fishing activity that is under the scope of the common fisheries policy. Unhappy Bedfellows: Science and Law in the EU Policy Process European fisheries law is subject to a process of continuous consolidation and reform. Much like the incoming tide, this whole process tends to flood and ebb with political imperatives within the European institutions in general and the European Parliament in particular. This process can be seen if one takes a cursory look at the protracted deliberations concerning the most recent reform process, which ran from 2011 to 2013. During this period, many issues were flagged regarding the application of science and technology to the numerous tasks undertaken under the rubric of fisheries management. Regrettably, the new Basic Fisheries Management Regulation does not address the fundamental weaknesses in the regulatory framework regarding the use of scientific advice in decision-making. This shortfall heretofore has

89  Ibid., paras. 36 and 44. 90  Case T-13/99 Pfizer Animal Health v. Council [2002] ECR II-3305 at paras. 139–140. See Case C-180/96 United Kingdom v. Commission [1998] ECR I-2265, para. 99, Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211 at para. 63, and the judgment at first instance in Case T-199/96 Bergaderm and Goupil v. Commission [1998] ECR II-2805, para. 66.

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undermined the effectiveness of the policy.91 Despite this shortcoming, Part VI of the Basic Regulation has some positive features that provide a legal plinth for the delivery of scientific advice and the use of technology for the purpose of fishery management. In the legislative process, for instance, the European Commission is compelled to consult with the relevant scientific advisory bodies when preparing proposals for legislation.92 Interestingly, this approach includes advice on matters pertaining to the “management of living marine resources, including biological, economic, environmental, social and technical considerations.”93 Moreover, the use of best available scientific advice is set down as one of the principles of good governance in fisheries management.94 In theory, EU fisheries management under the revised policy is to be based upon sound scientific advice and the application of the ecosystem and precautionary approach. The “ecosystem-based approach to fisheries management” is defined as: . . . an integrated approach to managing fisheries within ecologically meaningful boundaries, which seeks to manage the use of natural resources, taking account of fishing and other human activities, while preserving both the biological wealth and the biological processes necessary to safeguard the composition, structure and functioning of the habitats of the ecosystem affected, by taking into account the knowledge and uncertainties regarding biotic, abiotic and human components of ecosystems.95 Delivering this objective in practice may well be undermined by a serious if not fatal omission in the legislative provisions applicable to the European institutions, which do not set down any mandatory requirement on these bodies to heed or act upon the scientific advice that they receive from ICES, or indeed their own internal scientific committees such as the STECF. Indeed, a strict reading of the text of the Basic Regulation reveals that conservation measures are to be adopted “taking into account” available scientific, technical 91  Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354/22, 28 December 2013. 92  Articles 6(2) and 26 of the Basic Regulation. 93  Ibid., Article 26. 94  Ibid., Article 3(c). 95  Ibid., Article 4(1)(9).

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and economic advice.96 In other words, the EU law-making institutions retain their political discretion to accept or reject scientific and technical data for the purpose of fishery management. Plus ça change, plus c’est la même chose. We can see elements of discretion in the provisions on the use of the precautionary approach for the purpose of fishery management. The latter is defined by reference to the UN Fish Stocks Agreement as meaning: “an approach according to which the absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment.”97 The precautionary approach is to be applied under the CFP with a view to ensuring that the exploitation of “living marine biological resources restores and maintains populations of harvested species above levels, which can produce MSY.”98 This requirement appears, however, to be somewhat diluted by some other substantive provisions in the text of the regulation. In order to restore and maintain fish stocks, for instance, MSY is to be achieved by 2015 where possible and at the latest by 2020 for all stocks.99 The preamble of the Basic Regulation notes on a similar vein, “where scientific information is insufficient to determine the MSY, approximate parameters may be considered in order to achieve this target by 2020.”100 This provision accords with the targets set down by the World Summit on Sustainable Development at Johannesburg in 2002. Again, however, the discretionary nature of this obligation and the absence of legal certainty may well undermine the application of proxy standards in fisheries management. On the other hand, the regulation provides expressly that management plans for specific fisheries must be adopted on the basis of the precautionary approach when there is inadequate scientific data to determine MSY.101 There are many other positive features in the new regulatory scheme such as the legal obligation placed on the Member States to “collect data on fleets and their fishing activities, in particular biological data on catches, including discards, survey information on fish stocks and on the potential environmental impact of fishing activities on the marine ecosystem.”102 The EU will support financially this aspect of the policy and this is good for the future of European 96  See, for example, ibid., Articles 1(5), 4(1)((9), 6(2), 9(3)(b), 10(2)(a), 11(3), and 22(1). 97  Ibid., Article 4(8). 98  Ibid., Article 2(1). 99  Ibid., Article 2(2). 100  Ibid., Recital 7, Preamble. 101  Ibid., Article 9(2). 102  Ibid., Article 25(1).

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fisheries science in states and agencies in times of economic recession in many of the member States such as Portugal, Spain and Italy.103 The underlying principles governing the collection, management and use of scientific data are clearly stated to be focused on improving accuracy, transparency and accessibility.104 Failure by a Member State to collect or to provide scientific date in a timely manner may result in the cancellation or suspension financial assistance from the EU to that Member State.105 One particular highlight of the new regulatory regime is the express prohibition on the wasteful industry practice of discarding unwanted catch back into the marine environment to avoid unwanted species or due to quota restrictions. In principle, under the new approach all captured fish will have to be retained on board and subsequently landed in port by fishing vessels. This long overdue change to the CFP is going to be implemented gradually taking into account the best available scientific advice.106 Other innovative features include the use of impact assessments as appropriate in fisheries management, as well as the possibility of using ex-post evaluations of fishery management plans to take into account the inevitable changes in the scientific advice during the lifetime of such plans.107 There is also scope for Member States to submit new scientific evidence to the European Commission in relation to the status of fishing stocks when they are seeking to adjust fishing opportunities.108 Again, the standard of “best scientific advice” is expressly mentioned in relation to the adoption of management measures to reduce fishing effort.109 One of the innovative features is the new Basic Regulation aims to foster enhanced cooperation between the fishing industry and the scientific community. Furthermore, it calls upon the EU to adopt a leadership role in the work of regional and international organizations and in the battle to address the scourge of illegal, unreported and unregulated fishing. The EU approach is be informed by “best available science” and a similar standard is applied to the conclusion by the EU of external fisheries partnership agreements with third countries. The latter can only be concluded by the EU in future on the basis of access to the surplus of the resource in accordance with Article 62(2) and

103  Ibid., Recital 46. 104  Ibid., Article 25(2). 105  Ibid., Article 25(7). 106  Ibid., Articles 14 and 15. 107  Ibid., Article 10(3). 108  Ibid., Article 16(3). 109  Ibid., Article 22(1).

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(3) of the 1982 Convention.110 In this context, the “surplus” is defined restrictively to mean that “part of the allowable catch which a coastal State does not harvest, resulting in an overall exploitation rate for individual stocks that remains below levels at which stocks are capable of restoring themselves and maintaining populations of harvested species above desired levels based on the best available scientific advice.”111 A similar approach is evident in relation to straddling or highly migratory fish stocks that are managed by Regional Fisheries Management Organizations (RFMOs). In such instances, EU access to fishery resources must be based on the best available scientific advice so as to ensure that fishery resources are managed sustainably.112 The Union is also compelled to support the work of RFMOs in collecting data and preparing scientific advice for management decisions.113 Again, this is foursquare with the approach advanced by the 1995 United Nations Fish Stocks Agreement, as well as related instruments. Closing the Compliance Deficit with Technology Technology has many applications in law enforcement and compliance systems underpinning the management of fisheries, most notably for monitoring and controlling the activities of vessels at sea and in port. The European Union has pioneered the use of satellite-based vessel monitoring systems (VMS) and such equipment must be installed on all EU vessels over 12 meters in length, irrespective of their position or activity, both within and beyond sea areas under the sovereignty and jurisdiction of the Member States.114 Common specifications for the system have been adopted an EU level addressing matters such as: the responsibilities of the flag State, coastal State and port State; the technical characteristics of the devices (the blue box); the system architecture and information flows; details on the transmission of position data and other information; as well as the rules that apply in the case of a technical failure or the non-functioning of a device fitted on board a fishing vessel. 115 110  Ibid., Article 31(4). 111  Ibid., Article 4(33). 112  Ibid., Article 29(2). 113  Ibid., Article 29(4). 114  Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, OJ L 343, 22 December 2009. 115  Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009

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In addition to the aforementioned requirements, all fishing vessels over 15 meters must also be fitted with automatic identification system (AIS) in line with the IMO specifications and standards pertaining to vessel safety.116 Significantly, where there are cost benefits, Member States must match the positions derived by remotely sensed images sent to earth by satellites or other equivalent systems with the data received by VMS or AIS.117 They also must transmit surveillance data to EU Agencies and other Member States for a broad range of purposes including “maritime safety and security, border control, protection of the marine environment and general law enforcement.”118 There is also a legal basis in the regulation for the use electronic monitoring devices and traceability tools such as genetic analysis for the purpose of law enforcement.119 The majority of the administrative requirements associated with commercialsea fisheries (fishing logbook, trans-shipment declarations, landing notification) can be undertaken electronically and this reduces the burden imposed on fishers, as well as on the law enforcement agencies on shore and at sea. Information derived from VMS and other electronic sources has obvious probative value in criminal, administrative, and judicial review proceedings in the Member States, as well as in civil actions. In line with the separation of powers in civil and criminal matters, however, the EU has not adopted any rules on the use of VMS data as direct evidence in such proceedings. Accordingly, as a matter of practice, the rules on the admissibility of satellite or remote sensing evidence vary considerably in the Member States. Certainly, in common law jurisdictions such as the UK and Ireland, questions may be raised in criminal proceedings regarding the admissibility, authenticity and reliability of such evidence, as well as its collaborative value. That said, the law appears to be evolving pretty rapidly on the probity of evidence derived from information and communication technologies for fishery law enforcement purposes. Instructively, there have been some notable successes regarding the use of technology and VMS evidence including the successful prosecution of two Spanish fishing companies in the UK in July 2012. In this particular instance, the vessel owners were fined £1.6 million for allowing two of their vessels to establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, OJ L112/1, 30 April 2011. 116  Council Regulation (EC) No 1224/2009, Article 11. Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system, OJ L 208, 5.8.2002: 10. The IMO requirements are set down in Chapter V, Regulation 19, section 2.4.5 of the 1974 SOLAS Convention. 117  Council Regulation (EC) No 1224/2009, Article 11. 118  Ibid., Article 12. 119  Ibid., Article 13.

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fish in Ireland and Scotland contrary to EU fish quota conservation and management measures.120 The specific charges related to false entries in fisheries logbooks and failing to record trans-shipments of catch at sea. Elsewhere in the EU, the types of fishery cases in which VMS data has been tendered include: unlawful entry into a restricted area; failure to update a logbook; illegal fishing; tampering with VMS equipment; and the provision of false information.121 The successful prosecution of vessels through the use of technology by EU Member States is all the more significant because the FAO estimates that over 60 countries and 15 international organizations have established legally binding requirements regarding the use of VMS for fishery enforcement purposes.122 The experience in the EU regarding the use of such technologies has been quite progressive and sets an international benchmark in some respects. Compliance by the Member States with their obligations appears to be good with only one case in the Court of Justice concerning the failure by a Member State to implement the EU rules on VMS within the prescribed deadlines for the establishment of the system.123 Previously, the European Court of Auditors reported, however, that Member States were slow to establish systems to verify VMS data with other sources of electronic and paper information.124 This oversight has now been addressed by the new Basic Regulation, which provides for the systematic and automated crosschecking of all sources of information, including data that can be used to address the problems associated with IUU fishing.125 Furthermore, it mandates the Commission and the Member States to carry out pilot projects on new control technologies and systems for data management at a pan-European level.126 There is a sting in the tail however in so far as it also provides for the imposition of the operational costs of the EU fishery enforcement system and data collection on the fishing industry.127

120  ITV, “Spanish Fishing Firms Fined,” 26 July 2012, http://www.itv.com/news/westcountry/ story/2012–07–26/spanish-fishing-firms-fined/. 121  See B. O’Shea and S. Thompson, The Innovative Application of Vessel Monitoring Systems for the Effective Fisheries Monitoring Control and Surveillance (Copenhagen: ICES, 2006). 122  FAO, Fishing Vessel Monitoring Systems. VMS Worldwide programmes. VMS Programme Factsheets. In: FAO Fisheries and Aquaculture Department [online]. Rome. Updated. [Cited 22 October 2014]. http://www.fao.org/fishery/topic/18072/en 123  Case C-22/04, Commission v. Greece (Judgment of 14 April 2005, unpublished). 124  European Court of Auditors Special Report No 7/2007, OJ C 317/1, 28.12.2007, available at http://eca.europa.eu/portal/pls/portal/docs/1/673627.PDF. 125  Article 36 of the Basic Regulation. 126  Article 38 of the Basic Regulation. 127  Ibid., Article 39.

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Finally, it is clearly evident that we live in a digital world and much of the fishery enforcement information is used for many purposes and it is unsurprising to see the rolling-out of a “Common Information Sharing Environment” for the surveillance of all activities in the EU maritime domain. We shall return to this system in the next section as it has many uses in assisting various maritime law enforcement agencies in the Member States in dealing with some of the problems associated with irregular human migration across the Mediterranean Sea. Part II—Addressing Irregular Migration by Sea Tragedy of “Boat People” Entering the EU The first and foremost use of the ocean is for trade, communication and navigation. Thus it is entirely foreseeable that “considerations of humanity must apply in the law of the sea, as they do in other areas of international law,” as pointed out by the International Tribunal for the Law of the Sea in the Saiga 2 case.128 In reviewing the role of science, technology and modern challenges to ocean law, we should not therefore divorce the problems encountered in managing the natural environment from other contemporary challenges that have a human rights dimension. The significance of this dimension is reflected in the core values of the EU as set out in the foundation treaties, which are “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”129 Indeed if we are to be true to the New Haven Approach to international law and policy-orientated legal study, then we must accept that law in general is a process of decision-making that pursues shared values, most notably human dignity, in a free society.130 The EU has struggled in the battle to uphold the fundamental rights of non-EU citizens and in addressing public order matters relating to the ocean. In some instances, the genesis of these difficulties may be traced back to the 128  38 International Legal Materials 38 (1999), 1355, para. 151. 129  Article 2 of the TEU. 130  See, inter alia: Myres S. McDougal, “Law as a Process of Decision: A Policy-Oriented Approach to Legal Study,” Faculty Scholarship Series Paper 2464 (1956); Harold Lasswell and Myres McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992); Harold Lasswell, Myres McDougal, and Michael Reisman, “Theories About International Law: prologue to a configurative jurisprudence,” Virginia Journal of International Law 8 (1968), 168; and M. Reisman, S. Wiessner and A. Willard, “The New Haven School: A Brief Introduction,” Yale Journal of International Law 32 (2007), 575.

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provisions in the European treaties that establish a single market as an area without internal frontiers and thereby guaranteeing the free movement of persons, goods and services between Member States.131 These free movement provisions do not apply to third-country nationals entering Europe who do not satisfy the rigorous visa requirements. As a direct consequence of these restrictions, one of the most pressing law-enforcement problems facing the EU stems from the extensive maritime borders of the 23 coastal Member States, which are intrinsically difficult to patrol and police with a view to controlling the flows of people that are migrating to the EU from Africa and the Middle East. This challenge is particularly the case in relation to Italy, which has a coastline of 5,000 kilometers in length, and remains the destination of choice for many of those attempting to enter Europe by clandestine means. In this discussion, considerable care needs to be taken with the term “migrant,” which describes persons arriving by sea in an irregular manner, who are in need of legal protection of their fundamental rights under European and international law. 132 Strictu sensu, under EU law on immigration, borders and asylum,133 such persons are third-country nationals who do not meet the conditions for entry, presence or residence in the territory of one of the Member States. Apart from a limited number of circumstances that are prescribed by law, the policy in the EU and in all of the Member States is to return such persons to their country of origin. There is nothing unusual in this approach in so far as it is no different from the approach taken by the majority if not by all developed States worldwide. EU policy on returning migrants to their countries of origin has not, however, deterred many from attempting to cross the Mediterranean Sea and the Atlantic Ocean. The tragic nature of this practice was brought home to many Europeans with the loss of several hundred Somali and Eritrean migrants near the remote Italian island of Lampedusa in 2013. In one such incident, press reports indicated that their vessels sank within sight of the shore after migrants set fire to a blanket to attract the attention of local fishermen.134 In another instance, a group of Eritreans perished when ordered by an unscrupulous captain to swim ashore to the Sicilian coast after paying $1,500 per person to a gang engaged in smuggling across the Mediterranean Sea.135

131  Articles 26–196, Part III of the TFEU. 132  These persons must be distinguished from migrant persons that have the nationality of a member State of the EU and have legally binding rights under the European treaties. 133  Articles 77–80 of the TFEU. 134  Financial Times, 5 October 2013. 135  Ibid.

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These are not isolated events, as human trafficking has escalated over the past decade with large numbers of migrants taking to the ocean in unseaworthy craft in Africa and the Middle East and seeking to enter the EU. The reasons for this tide of human tragedy are many, with some migrants fleeing war, persecution, religious and ethnic discrimination, political repression, famine and poverty.136 Women and children are often trafficked for exploitation, and many others travel voluntarily. The majority of migrants are seeking a better future for themselves and their families in Italy, Germany, France and the United Kingdom.137 Although the precise numbers of migrants attempting to enter the EU illegally by sea is unknown, the figures appear to have reached a new high with the overthrow of the Gadhafi regime in Libya and as a result of the Jasmine Revolution in Tunisia. In 2011, for example, the United Nations High Commissioner for Refugees (UNHCR) estimated that 70,000 migrants sought to cross the Mediterranean Sea with disastrous consequences for many, including 1,500 people who perished at sea prior to reaching Europe.138 Many of the migrants are from sub-Sahara Africa.139 The task of the Italian Coast Guard has progressively become more difficult with the conflict in Syria.140 Over a ten-year period, the European Agency for Fundamental Rights has reported that the number of people missing and dead in the Sicily Channel has risen exponentially, as is evident from the figures shown in Table 1 below. Similar tragic incidents have occurred in West Africa and the Adriatic Sea but have not attracted the same media attention or publicity. The International Organization for Migration estimates that over 20,000 people have lost their lives at sea over the past two decades while attempting to enter the EU illegally.141 136  International Organization Migration Publications, International Migration Law No. 25, Glossary on Migration (Geneva: IOM, 2d ed., 2011). 137  European Agency for Fundamental Rights, Fundamental rights at Europe’s southern sea borders (Vienna: EUAFR, 2013). 138  UNHCR, A year of crises: UNHCR Global trends 2011 (Geneva: UNHCR, 2012). UNHCR, “More than 1,500 drown or go missing trying to cross the Mediterranean in 2011,” 31 January 2012, http://www.unhcr.org/4f2803949.html. 139  For an overview of the figures, see European Agency for Fundamental Rights, Summary Report, Fundamental rights at Europe’s southern sea borders (2013), available at http://fra .europa.eu/sites/default/files/summary-fundamental-rights-southern-sea-borders_ en.pdf. 140  Ibid. 141  International Organization for Migration, International Migration Law and Policies: Responding to Migration Challenges in Western and Northern Africa, Round Table, 8–9 December 2009, Dakar, Geneva.

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a european law perspective Table 3.1

Year

Missing and dead migrants in the Sicily Channel, civil society estimates, from 2002 through mid-2011142

2002

2003

2004

2005

2006 2007

2008

Deaths 236

413

206

437

302

1,274 425

556

2009

2010

2011*

Total

20

1,822 5,691

* January–July

When considering this human tragedy, it ought to be noted that the advent of “boat people” is not a new or indeed a unique European experience.143 In some respects, its origins can be traced back to a whole generation of Irish immigrants arriving in America, embarked upon coffin ships during and after the Great Famine in the late 1840s.144 More recently, similar incidents were evident in the South China Sea in the 1970s during the Vietnam War, and in several other geographical regions associated with political and economic turmoil including: the Strait of Aden as a result of instability and famine in the Horn of Africa; the eastern Indian Ocean with the migration of many Asians across the Indonesian archipelago and the adjacent exclusive economic zone (EEZ); and much closer to the United States in the perilous Miami Strait with many fleeing the Castro régime in Cuba. These regional incidents are part of a far larger trend concerning the migration of humans worldwide. This is borne out by the remarks delivered by the Secretary-General of the United Nations, Ban Ki-moon, to the Global Forum on Migration and Development, when he noted the continued rise in the number of migrants to 232 million annually.145 He emphasized the collective responsibility of the international community in addressing this issue and proposed a broad eight-point agenda 142  Fortress Europe, “Nel Canale di Sicilia 6.166 tra morti e dispersi dal 1994 dei quali 1.822 soltanto nel 2011,” 17 March 2012, available at: http://fortresseurope. blogspot.com/2006/02/ nel-canale-di-sicilia.html. Reproduced in European Agency for Fundamental Rights, Fundamental rights at Europe’s southern sea borders, at 30. 143  Barbara Miltner, “Human Security and Protection from Refoulement in the Maritime Context”, in Human Security and Non-Citizens: Law, Policy and International Affairs, eds. A. Edwards and C. Ferstman (Cambridge: Cambridge University Press, 2010). 144  See, for example, William Henry, Coffin Ship (Dublin: Mercier Press, 2009), which recounts the experience on board the famine ship, the St. John, in Massachusetts Bay in 1849. 145  Secretary-General’s remarks to High-Level Dialogue on International Migration and Development, New York, 3 October 2013, available at http://www.un.org/esa/population/ migration/index.html.

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to “make migration work for all: migrants, societies of origin and societies of destination alike.”146 This agenda provides a useful global backdrop with which to frame and view the various law and policy measures adopted by the EU to tackle illegal migration by sea.

EU Law and Policy on “Boat People”: An Embryonic and Complex Paradigm The EU response to boat people has been piecemeal, and it lacks firm leadership and a strong political focus within the European institutions. Some of the difficulty has come about as a result of the division of competence between the Member States and the EU on security matters with a maritime dimension, where the problems may be addressed by both the EU method of regulation on issues such as immigration, or by means of inter-governmental agreement between the EU, the Member States, and third countries. This somewhat convoluted regulatory environment has led to the adoption of measures on a number of fronts including: within the framework of EU law on immigration; on the basis of national measures in the Member States on security and border control; as well as by means of international and regional treaties that are applicable to safety at sea and the rights of migrants in general, including those that are trafficked illegally by maritime means.147 Responsibility for the control and surveillance of maritime frontiers rests with the Member States. The obligations in relation to saving lives at sea (including the lives of migrants) are absolutely clear and well established under both international treaty and customary law. It is well established by State practice that these obligations apply erga omnes.148 The treaty framework sets down many affirmative duties. Briefly stated, the 1982 Convention requires every coastal State to establish, operate and maintain an effective search and rescue service and to cooperate with neighbouring States for this purpose.149 EU Member States are bound by many international agreements aimed at protecting lives at sea including the International Convention for the Safety of Life at

146  Ibid. 147  European Union Agency for Fundamental Rights, The Handbook on European law relating to asylum, borders and immigration (Luxembourg: Publications Office of the European Union, 2013), passim. 148  M. Davies, “Obligations and implications for ships encountering persons in need of assistance at sea,” Pacific Rim Law and Policy Journal 12 (2003), 109; Michael White QC, “M/V Tampa Incident and Australia’s Obligations,” Maritime Studies 122 (2002), 7. 149  UNCLOS, Article 98(2).

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Sea (SOLAS) and its 1988 Protocol,150 and the 1979 International Convention on Maritime Search and Rescue (SAR).151 The latter requires Contracting Parties to respond to a “distress phase,” which is described as “a situation wherein there is a reasonable certainty that a vessel or person is threatened by grave and imminent danger and requires immediate assistance.”152 This duty to render assistance applies to the master of ships flying the flag of a Contracting Party, and it also extends to persons and ships in distress in sea areas both within and beyond areas of national jurisdiction.153 Similarly, under provisions contained in the 2004 amendments of SOLAS and the SAR Conventions there is an obligation to provide assistance, regardless of nationality or status of persons in distress, or the circumstances in which they are found.154 In other words, ships flying the flag of the Member States must rescue migrants at sea, irrespective of EU law and policy on immigration or otherwise. The obligations set down in relevant international instruments are binding on all EU Member States. In this respect, one should keep in mind that as a regional integration organization, the EU itself is not party to the SOLAS or the SAR Conventions and search and rescue at sea is predominantly a Member State competence under EU law. Further complexity arises from the extensive array of multilateral and regional treaties pertaining to international criminal law, and human rights and humanitarian law, that have a bearing on the matter of irregular migration by sea. These include the United Nations Convention against Transnational Organized Crime, its Protocol against the Smuggling of Migrants by Land, Sea and Air, and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children;155 the Convention relating to the Status of Refugees;156 and the European Convention for the Protection of

150  1184 UNTS 278 (entered into force 25 May 1980); 17 International Legal Materials (1978), 579 (entered into force 1 May 1980). 151  1405 UNTS 97 (entered into force 27 April 1979). 152  Annex Chapter 1.3.11. 153  UNCLOS, Article 98(1). 154  SOLAS, Chapter V, Regulation 33. Amendment to the International Convention on Maritime Search and Rescue 2004, IMO Resolution 155(78), adopted 20 May 2004. 155  2225 UNTS 209 (into force 29 September 2003). As of June 2012, 149 countries had ratified the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, while 130 countries had ratified the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air. 156  189 UNTS 150 (entered into force 22 April 1954).

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Human Rights and Fundamental Freedoms,157 to name some of the principal instruments. Indicatively, none of the EU Member States have ratified the International Convention on the Rights of Migrant Workers and their Families.158 Consequently, EU States are unwilling to uphold the rights and the correlative duties established by this pretty rudimentary framework, which sets down basic principles concerning the treatment of migrant workers and family members. Patently, what is missing from this fragmented tableau is a solid and effective treaty architecture for dealing with migrants at a global level that addresses not only maritime security issues, but also protects the legal and human rights interests of migrants, including their economic rights. Moreover, within Europe, there appears to be an inherent tension between the interests of the Member States regarding their sovereignty and the pursuit of regional or global solutions to illicit migration across both internal and external EU frontiers. This tension has its origins in the Treaty on the Functioning of the European Union, which provides a legal basis for the adoption of a common immigration policy and allows for the adoption by the Member States of socalled enhanced measures to combat illegal immigration and the trafficking in human beings.159 Additionally, the EU has common rules for dealing with humanitarian and rescue tasks in emergency situations, referred to as the “Petersberg Tasks,” as part of its common foreign and security policy.160 As a result, at an internal level within the EU, the political response to the tragedy in the Mediterranean Sea has largely been taken within the framework of the common rules on immigration and with a view to returning migrants to their countries of origin. At an operational level, much practical work in coordinating Member State action and responses at sea is undertaken under the good offices of a specialist agency, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX). The European Council adopted common rules for the management and operational coordination of border surveillance activities in 157  213 UNTS 222 (entered into force 3 September 1953), as amended by Protocols Nos 3, 5, 8, and 11 (entered into force 21 September 1970). 158  2220 UNTS 3. UN Doc A/RES/45/158 (adopted 18 December 1990, entered into force 1 July 2003). 159  Article 79 of the TFEU. 160  Article 43(1) of the TEU. See G. von Kielmansedd “The Meaning of Petersberg: Some consideration on the Legal Scope of ESDP operations,” CMLRev. 44 (2007), 629.

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2010.161 Considerable resources are devoted to the coordination of operations at sea including the establishment of the European Patrols Network, which includes a permanent regional border security network for the southern maritime borders of the EU. There have been several other EU legal and policy initiatives including proposals to establish a European Border Surveillance System (EUROSUR) and a push within the European institutions to give FRONTEX more powers and financial resources. The EU has also taken a number of significant steps to address the wider issues causing migration including the conclusion of a Mobility Partnership Agreement with Morocco, which may be followed by a similar agreement with Tunisia.162 The key to resolving many of the operational matters in relation to rescues at sea is contingent upon the success and effectiveness of EUROSUR. The European Commission has taken the lead within the European institutions by tabling a draft legislative proposal with a view to putting EUROSUR on a firm regulatory footing.163 The draft regulation is aimed at establishing a common framework for the exchange of information and cooperation between Member States and FRONTEX. In particular, it aims to strengthen the external borders of the Schengen area, which applies to all Member States apart from Ireland and the United Kingdom, but includes four third-countries—Norway, Iceland, Switzerland and Liechtenstein. Vitally in the context of the urgent nature of the law enforcement tasks currently encountered in the Mediterranean Sea, the framework will provide for the exchange of operational information for three purposes, namely: (1) to reduce the loss of lives at sea; (2) to lessen the number of irregular immigrants entering the EU undetected; (3) to increase internal security by preventing cross-border crimes such as trafficking in human beings and the smuggling

161  Council decision of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 111/20, 4 May 2010. 162  General Secretariat of the Council, Joint declaration establishing a Mobility Partnership between the Kingdom of Morocco and the European Union and its Member States, Brussels, 3 June 2013, available at http://ec.europa.eu/dgs/home-affairs/what-is-new/news/ news/2013/docs/20130607_declaration_conjointe-maroc_eu_version_3_6_13_en.pdf. 163  Proposal for a Regulation Establishing the European Border Surveillance System (EUROSUR), COM(2011) 873 final, Brussels, 12 December 2011. See also, Communication Examining the creation of a European Border Surveillance System (EUROSUR), COM(2008) 68 final, Brussels, 13 February 2008.

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of drugs.164 When fully established, EUROSUR will enable the law enforcement bodies in the Member States to track and rescue small vessels at sea by facilitating greater coordination between national authorities and through the use of improved surveillance technology. The tragic loss of so many lives at Lampedusa is expected to give additional impetus to the establishment of EUROSUR at national level in the Member States. The importance of this initiative should not be underestimated because when fully established and operational, EUROSUR will contribute to the development of the EU’s Common Information Sharing Environment, and this in turn will facilitate the exchange of surveillance data by using advanced technologies for the purpose of marine environmental protection, fisheries conservation, and with a view to addressing maritime security operational matters including the migration and smuggling of people by sea.165 Improvement in the control and surveillance of external maritime borders for all of the latter purposes is now one of the objectives of the EU’s integrated maritime policy. Undoubtedly, technology can play a crucial role in improving the performance of the search and rescue services and in enhancing the effective delivery of the law enforcement functions of the various maritime agencies in the Member States. Less well known, perhaps, is that the application of new technologies and the development of common rules for the sharing of information at a pan-European level can also be used to help to protect the fundamental rights of migrants that are rescued or intercepted at sea. This aspect of European law and policy merits further consideration here. Protecting the Rights of “Boat People” As seen above, the surge of migrants attempting to cross the Mediterranean Sea, the Gulf of Aden, and the dangerous passage between West Africa and the Canary islands, in unseaworthy and grossly overcrowded craft has gone on for well over a decade. Despite the on-going and escalating nature of the problem, the precise interface between international law of the sea, human rights law, EU law, and the application of modern technology to protect the rights of boat people, remained somewhat blurred up until relatively recently. In response to the high incidence of tragedies on Europe’s southern borders, 164  Ibid., at 1. 165  European Commission (2009b), Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions towards the integration of maritime surveillance: A common information sharing environment for the EU maritime domain, COM(2009)538 final, Brussels, 15 October 2009.

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we are beginning to see, however, a gradual convergence of these distinctive fields of law with a view to protecting and vindicating the fundamental rights of third country nationals who are rescued at sea, or who have reached the safety of the territory of the Member States, but do not have the necessary visa or documentation to enter the EU. This relatively noteworthy development in EU law, as with the 1982 Convention, contains little guidance on the rights of private individuals once they are rescued at sea.166 That said, internationals bodies such as the UNHCR and the IMO have taken the lead regarding the principles and practices that ought to be applied to migrants and refugees rescued at sea, most notably, through the 2004 amendments of the SOLAS and SAR Conventions.167 Additional clarity on the rights and duties of various parties are set down in the IMO Interim Measures for Combating Unsafe Practices Associated with Trafficking or Transport of Migrants by Sea.168 Enhanced transparency about the effectiveness of the latter measures is achieved through the publication of an extremely revealing annual report by the IMO on unsafe practices associated with the trafficking or transport of illegal migrants by sea.169 In parallel with progress at a multilateral level within the sphere of maritime shipping law, it is important to note that fundamental rights such as the right to life, the right to asylum, and the right to protection in the event of removal or expulsion, are all codified as general principles of EU law under the Lisbon Treaty. Moreover, the EU is compelled by the Treaty on European Union to promote such rights as one of the objectives of the EU’s external policy.170 This approach is bolstered by the Charter of Fundamental Rights, which underscores within the European legal order, the importance of the protection of the fundamental rights of third country nationals attempting to enter the EU. Unambiguously, the Charter prohibits torture and inhuman or degrading treatment or punishment, and bars the return of persons to countries where 166  See I. Papanicolopulu, “The Law of the Sea Convention: No Place for Persons?,” International Journal of Marine and Coastal Law 27.4 (2012), 867. 167  Including: IMO (2004a), Guidelines on the Treatment of Persons Rescued at Sea, IMO, Maritime Safety Committee resolution IMO Doc. MSC. 167(78), 20 May 2004. IMO Doc. (2004b), Resolution MSC. 153(78), Annex 3 adopted on 20 May 2004 (amending SOLAS) and Resolution IMO Doc. MSC. 155(78), Annex 5 adopted on 20 May 2004 (amending SAR); IMO Doc. (2009), Principles relating to administrative procedures for disembarking persons rescued at sea, Circular FAL.3/Circ.194, 22 January 2009; IMO Doc. (2010), IAMSAR manual vol. II, IMO, 1 June 2010. 168  IMO Doc. MSC/Circ.896/Rev.1, 21 June 2001. 169  See Doc. IMO MSC.3/Circ.20, 16 December 2011. 170  Articles 2 and 3(5) of the TEU.

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they will be subject to human rights abuses.171 The EU is also party in its own right to the [European] Convention on Human Rights, and along with the Member States, must respect both the letter and the spirit of the Charter and the Convention in all of their actions when implementing EU law as it pertains to migrants rescued or apprehended at sea. Indeed, the general principles of Union law and secondary legislation place an express obligation on Member States to ensure that measures undertaken during the course of surveillance operations should fully respect fundamental rights and the rights of refugees and asylum seekers, including, in particular, the prohibition of refoulement.172 The weight and relevance of the latter principle cannot be overemphasised in the context of migration across the Mediterranean Sea as it forbids the return of a refugee to his or her country of origin, but also to other countries where there is a risk of onward movement to the country of origin, where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.173 The principle sits directly at the interface of EU law, law 171  Articles 4 and 19, in line with case law developed by the European Court of Human Rights (ECHR) under Article 3, ECHR. 172  Article 3 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105/1, 13 April 2006. 173  Article 33 of the 1951 Geneva Convention relating to the Status of Refugees. Ratified by all EU Member States and incorporated into EU primary law through Article 78 of the Treaty on the Functioning of the European Union (TFEU) and Article 18 of the EU Charter for Fundamental Rights. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), the UNHCR, which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of “nonrefoulement” laid down in Article 33, amounted to the following: “. . . a cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State that could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.”

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of the sea and human rights law. Decisively, the application of the principle has been upheld by the European Court of Human Rights in the context of migrants attempting to enter the EU by seaborne means.174 The landing, reception, screening and processing of migrants rescued at sea is an area of EU law that is subject to considerable tension and discord. There is a long-overdue attempt underway to grapple with the key issues by tidying up the regulatory code. Specifically, at the time of writing, the EU is in the process of reforming the Directive laying down minimum standards for the reception of asylum seekers (referred to as the Reception Directive) with a view to harmonizing legal systems in the Member States through the implementation of a Common European Asylum System.175 Moreover, a sister instrument referred to as the “Return Directive” incorporates the principle of non-refoulement and subject to a number of safeguards allows for the readmission of migrants to their country of departure through a simplified procedure.176 Significantly, the EU’s Justice and Home Affairs Council has not adopted common rules on the application of the principle of non-refoulement,177 but has focused much of its political efforts on achieving agreement on several operational measures including some that are aimed at improving joint coast guard/naval patrols with third countries in North and West Africa.178 Rather clearly, any such operational arrangements do not discharge the various law enforcement bodies in the Member States from their obligations to respect the fundamental rights of migrants including their duty not to refoule. Specifically, Member States remain bound by the Charter of Fundamental Rights when implementing EU law and must respect the various rights and duties that arise under the European Convention on Human Rights. Furthermore, as will be seen next, technology has the potential to play a vital role in monitoring how the Member States discharge their fundamental rights treaty obligations.

174  ECHR, Soering v. the United Kingdom, No. 14038/88,
7 July 1989, paras. 90–91; ECHR, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012, para. 114. 175  COM(2008) 815 final, Brussels, 3 December 2008. 176  Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98, 24 December 2008. 177  Some guidance had been developed by the EU for Frontex operations through Council Decision 252/2010/EU, such decision has been annulled by the CJEU on formal grounds Court of Justice of the European Union (CJEU), Case C-355/10 [2012], European Parlia­ ment v. Council of the European Union, 5 September 2012. 178  February 2011, the EU’s Justice and Home Affairs Council adopted 29 measures.

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Applying Technology to Improve Compliance with Human Rights Technology is one of tools that can be used to improve compliance by law enforcement agencies with the various obligations that arise under international and European law in relation to controlling irregular migration by sea. Accordingly, a number of capacity building initiatives warrant a mention here. Foremost, it needs to be pointed out that the EU gives considerable fiscal support to cover the costs associated with the maritime security efforts of the Member States through the Asylum and Migration Fund, and the Internal Security Fund.179 Both funds provide for the establishment of Information and Communications Technology (ICT) systems that can be used for the integrated management of migration flows between third-countries and the EU, including the return of migrants to their countries of origin. Moreover, a similar practical response to capacity-building is evident in the work of FRONTEX, which has adopted a proactive three-strand approach to improving the skills of the law enforcement agencies: firstly, by setting out the fundamental rights duties of law enforcement officers in the documents governing operational activities; secondly, by improving training in human rights law for those engaged in field work; and thirdly by setting down a mandatory requirement for officers to report human rights violations. ICT is clearly applicable and complementary to these initiatives. 180 New technologies have many other applications that enhance regional operational mechanisms with third countries. A good example is the “Seahorse Network” between Portugal, Spain and several African countries.181 Intelligence on migrant movements at sea is shared among the various law enforcement agencies through this network. This approach also has a number of features that could be used for the purpose of advancing the protection of human rights of migrants. For instance, the European Agency for Fundamental Rights has suggested that the law enforcement authorities in these third countries could use the information derived from the network to initiate appropriate responses where there are human rights violations of those apprehended at sea.182 Moreover, ICT is an obvious tool that is capable of monitoring effectively and independently that Member States and third countries are upholding the principle of non-refoulement. Furthermore, it could also be used on a 179  Proposal for a Regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund, COM(2011) 751 final, Brussels, 15 November 2011. 180  European Agency for Fundamental Rights, Fundamental rights at Europe’s southern sea borders (EAFR, 2013). 181  More information on this network is available at http://ec.europa.eu. 182  EAFR, Fundamental rights, supra note 180.

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daily basis to ensure that migrants are given access to appropriate procedures as soon as they are apprehended or rescued. For obvious reasons, the EAFR recommends that only personal data on returnees that are strictly necessary for the readmission should be forwarded to the country of origin and transit country.183 This is particularly important in relation to asylum-related information, which could be used subsequently to persecute migrants on their re-admission to their countries of origin. Adopting somewhat of a tone of admonishment, the Agency notes that the EU and its Member States should not conclude readmission agreements that cover citizens of a third country with States that have a record of persistent and serious human rights violations.184 At the time of writing, such agreements are in place with Turkey, Russia, Pakistan and China, which is clearly at odds with the basic tenor of the EU Charter on Fundamental Rights.185 Reforming the EU’s Αpproach to Ιrregular Μigration by Sea Many of the legal problems encountered by the EU in addressing illegal migration at sea stems from the fact that the European common foreign and security policy did not have an effective and distinctive maritime strand prior to the adoption of a maritime Security Strategy by the Council in 2014.186 As a consequence, the EU regulatory and policy response to irregular migration by sea has been pedestrian, diffuse and pedantic at best. Moreover, the regional crises in the Mediterranean are expected to deteriorate unless the EU and all of the Member States discharge their legal obligations to protect the human rights of migrants, in particular to ensure the safety of lives at sea, and to agree on an approach to the implementation of a common immigration policy. In this respect, the tragic events associated with the island of Lampedusa may act as a badly needed catalyst for EU law reform. How should the EU and the Member States respond to this challenge? At an operational level, there needs to be a coordinated response, which aims to stop the trafficking of humans across the ocean. At the very least, appropriate resources must be committed to enhancing the capability of the various maritime agencies that work in the Mediterranean Sea. In many ways, 183  Ibid. 184  Ibid. 185  See Communication Evaluation of EU Readmission Agreements, COM(2011) 76 final, Brussels, 23 February 2011. 186  European Union Maritime Security Strategy adopted by the Council (General Affairs) on 24 June 2014. Available at: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%20 11205%202014%20INIT (Accessed: 24 October 2014)

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the UN Secretary-General is far more pragmatic with his suggestion that every migrant vessel in the Mediterranean Sea should be considered to be potentially in distress and thus requiring rescue.187 Most importantly of all, EU Member States need to give full effect to human rights instruments including the protocols against human trafficking and migrant smuggling, relevant ILO agreements applicable to migrants, as well as the Convention relating to the Status of Refugees. In essence, the EU and Member State regulatory response must be firm and grounded in a rights-based-approach whereby all migrants rescued or apprehended at sea are protected by virtue of their human dignity. Apart from reforming the law concerning the treatment and rescue of persons in distress at sea, the application of new technologies can help protect the fundamental rights of migrants fleeing war, persecution, humane and degrading treatment in their countries of origin, particularly in the Middle East and Africa. In this regard, EU initiatives such as the one promoting the establishment of a Common Information Sharing Environment, as well as integrated maritime surveillance systems, must be welcomed, as they can improve law enforcement efficiency, cut surveillance costs, and provide more timely responses to incidents at sea. This approach will not only improve maritime safety and security but is also aimed at enhancing the protection of the EU’s external frontiers, the marine environment, as well as trade and shipping. Similarly at an external level, the EU’s Operation Atalanta in the Indian Ocean and the program on Critical Maritime Routes in the Gulf of Guinea, provide training for coastguards and establish an electronic system for information sharing at a regional level in Africa. As noted by European Commissioner Damanaki, such an approach will make the EU a more “visible, credible and forceful” maritime actor on the world stage.188 Ironically, climate change is one of the contributory factors to irregular migration, so it is entirely appropriate to conclude this chapter with a very brief analysis of how science and technology are shaping the regulatory and policy response in Europe pertaining to the maritime sectors, as well as the manner in which they are influencing some practical aspects of ocean law.

187  Report of the Secretary-General, International Migration and Development, UN A/68/190, 23 July 2013. 188  See speech delivered by European Commissioner Damanaki, “Challenges and Opportu­ nities in Maritime Security for Effective Governance and Innovation in the EU’s Maritime Domain,” Dublin, 8 April 2013, available at http://ec.europa.eu/commission_2010–2014/ damanaki/headlines/speeches/2013/04/20130408_speech_en.htm.

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Part III—Tackling Climate Change Doing Νothing is Νot an Οption In the EU, science and law converge and overlap in the policy response to the phenomenon of climate change. Indeed, the complex interface of European law, international law, science and technology is at times nothing short of exasperating for those that are pushing for a more robust response to mitigate the impacts of climate change on the oceans. Such impacts are increasingly manifest in everyday life in the form of sea-level rise, ocean acidification, and extreme weather events such as Typhoon Haiyan in the Philippines, as well as the inundation of whole areas of the United Kingdom and continental Europe as a result of tempestuous Atlantic storms du ring the summers of 2012 and 2013. The effects of climate change on the oceans is now the focus of a considerable body of specialist literature and some scientists have concluded that the impacts of warming are magnified by the effects of other human impacts, such as pollution, eutrophication and overfishing.189 This scientific consensus, in turn, also accepts that there is a continuous influence by climate change on the composition, structure and functions of marine ecosystems.190 In relation to the law and policy response in Europe, perhaps it is best to start by pointing out that the adoption of the 1982 Convention pre-dates the inter-governmental debate on climate change and the negotiation of the UN Framework Convention on Climate Change (UNFCCCC) by a number of decades.191 Similar to other international agreements, however, the 1982 Convention must be viewed in light of the subsequent development of international law on climate change.192 Furthermore, significant changes to ocean law have come about, in the intervening years, by means of both treaty and customary law on matters such as the conservation of fisheries and the application of new normative tools such as ecosystem-based approach in the tasks associated with marine environmental management, all of which have a bearing on the policy and legal response to climate change.193 The dynamic and progressive nature of international law is emphasized by many scholars 189  See, for example, Jelle Bijma, Hans-O. Pörtner, Chris Yesson, and Alex D. Rogers, “Climate change and the oceans—What does the future hold?,” Marine Pollution Bulletin 74.2 (2013), 495–505. 190  Ibid. 191  UNFCC 31 ILM 849. 192  On the dynamic nature of international law, see Namibia Advisory Opinion 1971 I.C.J. Rep., at 16, 31. 193  Op cit, supra note 1.

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including Professor Alan Boyle, who has counseled that the 1982 Convention and related instruments must be interpreted and applied within the framework of the entire legal system that now prevails in international law and in light of present day conditions, environmental and otherwise.194 An ambulatory approach to treaty interpretation and application appears to be the only sensible course of action when one takes into consideration the ominous scientific findings of the Intergovernmental Panel on Climate Change, published in September 2013.195 Apart from deducing that human anthropogenic impacts are the “dominant” influence on climate change since the mid 20th century and that the evidence of global warming is unequivocal (emphasis added), the first part of the Fifth Assessment Report of the Panel makes sobering reading in relation to global warming and its effects on the ocean.196 In particular, the Report concludes that ocean warning dominates the increase of energy in the climate system and that this process is set to continue by causing ocean temperatures to rise, as well as a faster rise in global mean sea level. The ocean is estimated to absorb 90 percent of the energy generated by global warming. Worryingly, the Report points out that the effects of climate change will persist for many centuries, even if greenhouse gas emissions abate completely.197 The authors of the Report conclude that limiting the effects of climate change will require “substantial and sustained reductions” of such emissions.198 These findings are disturbing for the EU, where several Member States such as the Netherlands, Ireland, the United Kingdom and Denmark, as well as some of Europe’s great cities such as Venice, are threatened physically by sea level rise and the effects of climate change. The health of the regional seas is particularly prone to temperature variations and to the destruction of marine ecosystems and the species that they support. In Europe, the media response to Climate Change 2013 focused on the oceans. An editorial in the Irish Times, 194  See Alan Boyle, “Law of the Sea perspective on Climate Change,” International Journal of Marine and Coastal Law 27.4 (2012), 711–721. 195  See IPCC, Technical Summary, Climate Change 2013: The Physical Science Basis, Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC, 2013), available at http://www.climatechange2013.org/images/report/WG1AR5_ TS_FINAL.pdf. 196  Ibid., at 47, 52–53. 197  The six greenhouse gases controlled by the Kyoto Protocol are carbon dioxide (CO2), methane (CH4), nitrous oxide ((NO2), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF2). 198  See IPCC, Climate Change 2013: Headline Statements from the Summary for Policymakers (IPCC, 2013), at 2, available at: http://www.ipcc.ch/news_and_events/docs/ar5/ar5_wg1_ headlines.pdf.

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for example, highlighted that we as humans are “directly implicated in warming the atmosphere and oceans, melting glaciers, declining arctic summer sea ice, rising sea levels and changes in some climate extremes.”199 Furthermore, the editorial warns that temperate countries may well face an influx of “climate refugees,” as the warming trend persists.200 This concern appears to be supported by the increased flows of migrants from Africa and Asia to Europe as highlighted above. Apart from concerns about human migration, the EU has been active in many other specialist policy areas and has adopted a comprehensive package of measures in the fields of energy and climate change.201 Notably, these measures are aimed at meeting the so-called 2020 policy targets, namely: 20 percent energy from renewable sources; 20 percent energy efficiency and 20 percent reduction in greenhouse gas emissions below the 2005 levels, all by the year 2020.202 The European Commission sets down even more ambitious objectives in their European Energy Roadmap 2050, which calls for 80 percent reduction in carbon emissions and the production of 55 percent of energy from renewable sources by 2050.203 Briefly stated, there are four elements in the EU legislative package that are aimed at achieving the 2020 targets. Firstly, the establishment of a trading and auction system for greenhouse gas emissions at EU level, referred to as Emission Trading System (ETS), which applies a uniform price for all emissions from power plants, industrial installations, as well as the airline industry.204 Secondly, legal binding targets implemented at national level in the Member States for sectors that are not subject to the ETS such as transport and shipping, the latter is referred to as the Effort Sharing Decision.205 Thirdly, the Renewable Energy Directive, which sets down the amount of energy that must 199  Irish Times, 30 September 2013, at 15. 200  Ibid. 201  Ronán Long, “Offshore wind energy,” supra note 29, 15–52. 202  Ibid. 203  Ibid. 204  Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ L 275, 25.10.2003, at 32; and Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community, OJ L 302, 18 November 2010, at 1. 205  Commission Decision of 26 March 2013 on determining Member States’ annual emission allocations for the period from 2013 to 2020 pursuant to Decision No 406/2009/EC of the European Parliament and of the Council, OJ L 90/106, 28 March 2013.

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be produced from renewable sources.206 Fourthly, a European Directive setting down standards applicable to carbon capture and storage including geological storage under the seabed.207 Importantly, the monitoring and measurement of emissions are built into the marine strategies adopted by the Member States under the Marine Strategy Framework Directive, which aims to achieve good environmental status for all EU’s marine waters by 2020.208 These aforementioned measures are proactive in substance and ambit and are generally consistent with the “commitments” set down by the Kyoto Protocol to the UNFCCCC, as well as the Copenhagen, Cancun, Durban, Warsaw Accords. They also implement the treaty principles on precaution, that the polluter-should-pay, and that decision-making in relation to the environment is informed by the use of best available science and technology (described above).209 Within the climate change conundrum, regulators in the EU and the Member States are seeking to balance the illusive goals of sustainable economic development with the protection of the environment. To illustrate some of the difficulties encountered in achieving a satisfactory equilibrium regarding the attainment of these objectives, this chapter now mentions three aspects of the EU’s legislative and policy response to climate change that impinges upon modern oceans law; specifically, shipping, offshore wind energy, carbon capture and storage. In this regard, it is evident that EU policy requires a diverse response across a wide range of maritime sectors and draws together a number of legislative strands pertaining to international, regional and national law. Unfinished Βusiness: EU Regulation of Shipping and Climate Change The European shipping industry is applying new technologies to improve maritime safety, to protect the marine environment, as well as to reduce the overall costs associated with maritime transport. This development explains in some ways why the industry remains globally competitive and ensures the free flow of trade both within and beyond the EU. Moreover, shipping allows 206  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140, 5 June 2009, at 16. 207  Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide, OJ L 140, 5.6.2009, at 114. 208  Angel Borja, et al., “Good Environmental Status of marine ecosystems: What is it and how do we know when we have attained it?,” Marine Pollution Bulletin 76.1 (2013), 16–27. 209  Article 191 of the TFEU.

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the EU to play a key role in the global economy and this in turn fosters regional prosperity. EU regulatory measures have focused on two strategic topics, namely: combating the impact of shipping on climate change and reducing pollution by shipping.210 The latter policy has been driven forward by concerns stemming from the catastrophic loss of the Erika and the Prestige and the irresponsible pollution of France, Spain and Portugal, as well as great swathes of the Bay of Biscay. In response, the EU adopted a comprehensive code of legislative measures that is aimed at mitigating vessel source pollution, reducing the incidence of substandard shipping, and addressing longstanding concerns regarding maritime safety. The most recent intervention, referred to as the Third Maritime Safety Package, is made-up of two Regulations and six Directives setting down legally binding standards regarding: compliance with flag State and port State requirements; the functioning of classification societies; traffic monitoring and accident investigation; the liability of carriers under the Athens Convention; as well as the compulsory requirement for shipping to have insurance when entering sea areas under the sovereignty and jurisdiction of the Member States.211 These régimes comprise a comprehensive maritime code in its own right. Predictably, there are specific measures within the Third Package that are aimed at mitigating the adverse effects of the sector on climate change by 210  Veronica Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (Leiden/Boston: Martinus Nijhoff, 2007), passim. 211  For a history of EU shipping safety measures, see Henrik Ringbom, European Union Maritime Safety Policy and International Law (Leiden/Boston: Martinus Nijhoff, 2008), passim. The package is made-up of the following instruments: Dir. 2009/21/EC on compliance with flag State requirements, OJ L 131/132, 28 May 2009; Reg. No. 391/2009 on common rules and standards for ship inspection and survey, organizations, OJ L 131/11, 28 May 2009; Dir. 2009/15/EC on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations, OJ L 131/47, 28 May 2009; Dir. 2009/16/EC on port State control, OJ L131/57, 28 May 2009; Dir. 2009/17/ EC amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system, OJ L 131/101, 28 May 2009; Dir. 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council, OJ L 131/114, 28 May 2009: Reg. No 392/2009 on the liability of carriers of passengers by sea in the event of accidents, OJ 131/24, 28 May 2009; Dir. 2009/20/EC on the insurance of ship owners for maritime claims, OJ L 131/128, 28 May 2009.

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reducing air pollution in general from ships and greenhouse gas emissions more specifically. The importance of these measures may be appreciated when one considers that greenhouse gas emissions from international maritime transport currently represent around 3 percent of total emissions worldwide. Moreover, the EU has forecasted that this contribution will grow due to the expanding nature of world trade and the corresponding demand for shipping.212 Despite the implementation of specific operational programs and new abatement technologies, there are some EU estimates that suggest that this growth will amount to a 51 percent increase in emissions by 2050 compared to 2010 levels.213 This will render nugatory mitigation and adaptation measures in other sectors and again this highlights the adverse environmental footprint of shipping. Against this background, the EU has sought to reduce emissions from maritime transport by 40 percent by 2050. In parallel, the IMO has also adopted measures that make mandatory improvements in energy efficiency standards for all new ships. This was achieved by the amendment of Anne VI of the MARPOL Convention to cater for the introduction of the Energy Efficiency Design Index and the Ship Energy Efficiency Management Plan.214 This amendment did not cover CO2 emissions and there has been no agreement at a global level on the use of market-based measures to reduce emissions such as an Emissions Trading Scheme, a Greenhouse Gas Fund,215 a Port State Levy, an Efficiency Incentive Scheme, or a Ship Efficiency and Trading Scheme.216 The IMO has concluded that technical and operational efficiency measures can provide significant improvements but will not in the longer-term be able to provide real reductions if the demand for shipping and the expansion of global trade continues. Surely, these are real concerns and can only be addressed by the adoption of pragmatic and innovative solutions that apply across the entire shipping sector. The aforementioned explains what the EU has pushed for a global approach under the auspices of the IMO to resolve this matter. Moreover, despite the 212  See European Commission, Integrating maritime transport emissions in the EU’s greenhouse gas reduction policies, COM(2013) 479 final, Brussels, 28 June 2013, which cites Study carried out by Lloyd’s Register and DNV for the IMO in 2011 and 4th IPCC Assessment Report. 213  Ibid., at 2. 214  In force since 1 July 2010. Prohibits ODS in line with the Montreal Protocol, regulates exhaust gas and cargo vapours from tankers. 215  Proposed by Cyprus, Denmark, the Marshall Islands, Nigeria and IMPA at the IMO Marine Environment Protection Committee (MEPC) 60/4/8. 216  Proposed by the United States at MEPC 60/4/12.

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slow progress at the multilateral level, the EU included existing ships within its 20 percent commitment to reduce greenhouse gas emissions in 2012.217 Significantly, however, international maritime transport remains the only transport sector not included in the EU’s commitment to reduce greenhouse gases. Nevertheless, the diplomatic efforts persist with the EU working with the US, Japan, Australia, Canada, Russia, Korea and others towards the introduction of a global market-based scheme to supplement existing technological and operational measures. In these negotiations, it has advocated strongly for the introduction of a robust monitoring, reporting and verifying (MRV) scheme. Moving from words to action, in a unilateral move aimed at expediting the establishment of an international system, a draft regulation has been tabled by the European Commission within the European institutions, which establishes a MRV scheme for CO2 emissions from all vessels in excess of 5,000 gross registered tons in size once they use ports that are under the jurisdiction of the Member States. 218 These measures will apply to all vessels, irrespective of their flag or port of registration. Under the proposed scheme, vessels owners will be compelled to monitor and report on the amount of CO2 emitted by ships on passage to and from EU ports. They will also be obliged to provide information on the vessel’s energy efficiency. Clearly, one of the principal objectives of the draft regulation is to close the scientific knowledge deficit concerning the amount of greenhouse gases emitted by EU vessels. Moreover, the EU scheme is ultimately expected to speed-up the introduction of similar measures by the IMO. In addition, several European maritime agencies working in conjunction with the IMO have commenced a number of technical projects to monitor emissions from ships and the results of these initiatives will inform the legislative programme of the European institutions over the coming decade. The sluggishness of the EU and the Member States in adopting legal measures to give effect to the climate change policy in relation to shipping may be compared and contrasted with the dynamic pace of change in the European offshore renewable energy sector. Offshore Energy: Winds of Change Many northern European countries have favorable environments for the development of renewable energy infrastructure and offshore wind energy in 217  Directive 2009/29/EC and Decision 406/2009/EC. 218  Proposal for a Regulation on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport and amending Regulation (EU) No 525/2013, COM(2013) 480 final, Brussels, 28 June 2013.

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particular. Thus, it is unsurprising to note that offshore wind energy development is one of the primary technological solutions rolled-out in the Member States to meet the ambitious targets set down in the climate change and energy policies highlighted above.219 Due to the constraints of space, only a few points are made here about the rapid growth of this new industry, which poses a new challenge regarding the implementation of ocean law in some of Europe’s busiest regional seas.220 At a pan-European level, current trends in the development of the offshore sector are impressive with 55 offshore wind farms up and running in nine Member States by the end of 2013. These have a combined installed capacity of 5,000 MW made up of 1,600 turbines, with the United Kingdom and Denmark leading the race towards the expansion of the industry in the offshore environment. Incredibly, Germany proposes to locate 8,000 turbines in the relatively small parts of the North Sea and Baltic Sea that are under its sovereignty and jurisdiction.221 The combined cost of these developments has exceeded €4.5 billion and is expected to increase by twenty-fold over the coming decade. This will be the largest industrial project undertaken in Europe since the rebuilding of key infrastructure in the aftermath of the Second World War. Apart from greater social acceptance, offshore wind farms have a number of technical and regulatory advantages over similar infrastructural development in the terrestrial environment. Wind speeds tend to be higher offshore and there is more scope for larger infrastructure development in the form of higher towers and more powerful turbines with larger rotors. The quality of the wind energy resource and the availability of maritime space are major considerations that have influenced the development of this nascent industry by both Germany and the United Kingdom. In both jurisdictions, the terrestrial environment is both congested and urbanized, which makes it far more difficult to obtain the appropriate consents for onshore wind farm developments under the constraints imposed by planning and environmental legislation. There are many other factors, which are influencing this vibrant offshore industry, including the price of fossil fuels and the insatiable demand for energy in 219  Ronán Long, “Offshore wind energy,” supra note 29, 15–52. 220  For further detail, see Ronán Long, “Harnessing Offshore Wind Energy: Legal Constraints and Policy Conundrums in the European Union” 29 (2014) International journal of Marine and Coastal Law 1–26. 221  Ronán Long, “Offshore wind energy development in Germany: Actors, legal instruments and decision- making procedures,” in Climate Change And Environemtal Hazards Related To Shipping: An International Legal Framework, eds. Hans-Joachim Koch, Doris König, Joachim Sanden, and Roda Verheyen (Leiden/Boston: Martin Nijhoff, 2012), 227–240.

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Europe’s energy intensive economies. Moreover, there is legal provision at an EU level for State-aid in the form of fiscal and market support to offset the cost of producing energy from renewable sources. The principal impediments are the cost of offshore infrastructure (at least twice as expensive as onshore), distance from the energy market, and the availability of vessels and ports to support the construction phase of the new industry. Pointedly, EU legislative measures have acted as a catalyst in shaping the practice of the Member States. In particular, the EU regulatory regime in the form of the Renewable Energy Directive and national programmes appear to be well settled and very much geared towards the growth of the industry.222 The European Wind Energy Association has published estimates that suggest 30 percent of all wind energy turbines in Europe will be located offshore by 2020, with this figure increasing to 60 percent by 2030. This in itself poses a major marine environmental challenge and it will be interesting to see how the Member States continue to meet the requirements set down by international and European regulatory instruments as they continue to roll out the new industry. On the plus side, the national progammes for the development of the industry come within the scope of the EU Directive on Strategic Environmental Assessment, and individual farms are subject to project-based environmental impact assessment (EIA). More problematic still is the interface between energy projects and EU nature conservation instruments that aim to protect habitats, as well as fauna, flora, and bird species. This is a discrete and complex area of EU and national law, which requires Member States to adopt appropriate conservation measures to ensure that habitats and species are maintained and restored to their natural range within the European network of nature protection areas (referred to as Natura 2000). Accordingly, wind farm development must undergo appropriate assessment to ensure conformity with the scheme set down by the Directives. Should they receive a negative assessment, Member States are compelled to take appropriate compensatory measures to ensure the overall coherence of the Natura 2000 network. This whole process of assessment is science driven and there are many novel electronic tools and sensors under development in Europe that will facilitate remote sensing and the monitoring of marine habitats and species.223 In addition, the Marine Strategy Framework Directive requires Member States to develop a program of measures designed to achieve

222  Directive 2009/28/EC, OJ L 140, 5 June 2009, at 16–62. 223  See, for example, the development of sensors by Smart Bay in Ireland. Further information is available at http://smartbay.ie.

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or maintain good environmental status of all marine waters by 2020.224 This will obviously influence the scope for the future development of the offshore wind energy development in maritime spaces where there is legal protection afforded to biodiversity. EU Regulatory Measures on Carbon Capture and Storage One of the areas where we can see the EU taking the lead within the international community regarding the use of new technologies relates to the manner in which it has developed an innovative and precautionary approach to the law and polices on carbon capture and storage (CCS). The package of regulatory measures, which permits the use of the seabed for such a purpose, has its origin in the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972 (the London Convention).225 As is well known, the capture, transport and ultimate storage of greenhouse gases (mainly CO2) in geological formations are industrial processes that rely heavily on the application of new technologies, which when fully tested and proven may well help in mitigating the effects of climate change. For this reason they are sometimes referred to as “mitigation technologies” in the specialist European literature dealing with climate change.226 The use of such technologies has provoked considerable debate and opposition both within and outside of the EU and has been the focus of much work by multilateral and regional bodies that deal with law of the sea matters including the OSPAR Commission. The latter has highlighted two difficulties if such technologies are to be applied successfully in Europe, namely: the management of the environmental risks associated with the use of such technologies, and secondly, the removal of commercial barriers to the deployment of CCS.227 Despite these difficulties, the EU is committed to supporting the use of CCS and has provided finance for the establishment of a dozen demonstration projects to test and prove such technologies by 2015.228 In parallel, it has adopted several regulatory and policy initiatives to advance the use of the related tech224  Directive 2008/56/EC, OJ L 164, 25 June 2008, at 19–40. 225  1046 UNTS 120, 11 ILM 1294 (1972); 36 ILM 1. See Louise De La Fayette, “The London Convention 1972: Preparing for the Future,” International Journal of Marine and Coastal Law 13 (1998), 515. 226  Ronán Long, “Irish practice on the Law of the Sea 2011,” Irish Yearbook of International Law 2011 (Oxford: Hart Publishing, 2013), 103–126, especially at 108–111. 227  OSPAR Commission, Assessment of climate change, mitigation and adaptation, (London, OSPAR, 2009) at 16. 228  European Commission Communication on the Future of Carbon Capture and Storage in Europe, COM(2013) 180 final, Brussels, 27 March 2013.

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nologies at a pan-European level. Most notably, the EU adopted a Directive on the storage of CO2 at geological sites for the purposes of permanent storage in 2009.229 This instrument applies to the marine environment and thus provides a legal framework for the storage of CO2 at sites in the seabed of the EEZ and in the continental shelves of the Member States.230 The Directive is enabling or permissive in so far as it does not mandate the use of such technologies but leaves it up to individual Member States to exercise their discretion in relation to such matters. This instrument is supplemented by a number of guidance documents addressing matters such as risk assessment, monitoring, the role and responsibilities of the competent authorities in the Member States, as well as financial security.231 Despite the drive towards the harmonization of EU measures on CCS, the approach of the Member States to this subject differs considerably with some Member States, such as Ireland, adopting a risk adverse approach and prohibiting storage in the continental shelf until the technology is fully established and the potential risks of pollution of the marine environment are fully known and abated.232 Other Member States, such as the Netherlands, have authorized, with the approval of the Commission, permanent storage of CO2 in the Dutch EEZ. In March 2013, the European Commission published a consultative paper on CCS in Europe in order to stimulate debate on how best to promote its future development and application as a robust climate change mitigation tool.233 One of the key findings reported in this paper is that CCS will require considerable public subvention if it is to prove commercially viable as a mitigation technology. Instructively, the only example of commercial success of this technology in Europe (admittedly outside of the EU) has arisen out of the fiscal measures that are applied under the Norwegian tax code to the gas and oil producers on the continental shelf, which has led to the commercial development of CCS at Snøhvit and Sleipner.234 Elsewhere, the EU demonstration CCS projects appear to have run into planning law and financial difficulties 229  Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide, OJ L 140/114, 5 June 2009. 230  Article 2 of Directive 2009/31/EC. 231  Available at: http://ec.europa.eu/clima/policies/lowcarbon/ccs/implementation/ documentation_en.htm. 232  Ronán Long, “Irish practice on the Law of the Sea 2011,” supra note 226. 233  European Commission Communication on the Future of Carbon Capture and Storage in Europe, COM(2013) 180 final, Brussels, 27 March 2013. 234  Ibid., at 23.

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in several Member States.235 Moreover, such difficulties are compounded by the EU emissions trading system, which has not delivered on original expectations, and this, according to the European Commission, is one of the reasons why commercial entities have been slow to invest in the new technologies. In spite of these setbacks, the European Commission continues to support the development and application of CCS technologies as a key component of its climate change and energy policy up to and beyond 2030.236

Does the EU Marine Environmental Approach to Climate Change Reflect International Best Practice? The answer to this question appears to be in the affirmative in so far as the EU approach is consistent with contemporary developments in international law concerning the implementation of the precautionary principle and the principle that the polluter should pay. Furthermore, the aforementioned measures appear to be in full compliance with the 1982 Convention, which provides the overarching framework for addressing climate change mitigation and adaptation measures pertaining to the ocean, in so far as it regulates nearly all maritime activates and prohibits expressly pollution.237 The latter term is defined expansively therein to include the introduction of substances and ‘energy’ resulting in deleterious effects to the marine environment and this definition thus extends to cover greenhouse gas emissions.238 Furthermore, the EU, as a Party to the 1982 Convention and many related international agreements, must control and regulate pollution by means of a panoply of complementing measures, including due diligence, environmental impact assessment, and the use of best available technology, as well as by the application the precautionary approach and “best environmental practices.”239 Significantly, due diligence has been described by ITLOS in the Advisory Opinion as a “variable concept” that “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.”240 This conforms closely with the find235  Ibid. 236  Green Paper, A 2030 framework for climate and energy policies, COM(2013) 169 final, Brussels, 27 March 2013. 237  UNCLOS, Part XII and Articles 194, 207 and 212. 238  Ibid., Article 1(1)(4). 239  Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, (1 February 2011). 240  ITLOS Advisory Opinion, para. 135.

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ings of the ICJ in the Pulp Mills case that due diligence entails amongst other matters, the adoption of appropriate rules and measures, vigilance in their enforcement, “careful consideration of the technology to be used,”241 as well as EIA.242 The fact that there was no evidence to support the claim of Argentina that the mill in the Pulp Mills case was not “best available technology-compliant,” in terms of the discharges of effluent for the pulp produced, had a major bearing on the outcome of that particular case.243 In their Advisory Opinion, ITLOS also upheld the ICJ’s invocation of the precautionary approach in the Pulp Mills case and its applicability to seabed mining. Similar to the obligation placed on States Parties, the EU must therefore apply a precautionary approach as an integral part of its 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.” In relation to EIA, the Tribunal concluded that it was “a direct obligation under the [1982] Convention and a general obligation under customary international law.”244 This strongly suggests that the EU climate change policy as it applies to the marine is consistent with international best practice on key aspects including the need for a precautionary approach, due diligence, and EIA. Conclusions How does one conclude? If one starts with primary sources of law, then it is patently evident that the European treaties set down clear obligations on the EU regarding the advancement of science and technology as core objectives that are central to European integration.245 The EU is also required to adopt appropriate measures for the protection and preservation of the marine environment.246 In doing so, the EU is compelled to take account of available scientific and technical data in preparing its policy on the environment. 241  Case Concerning Pulp ‘Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) ICJ Reports 2010, para. 223. 242  For one perspective on these points, see Alan Boyle, “Pulp Mills Case: A Commentary,” presented at the BIICL, at 4, available at www.biicl.org/files/5167_pulp_mills_case.pdf. 243  Case Concerning Pulp Mills, para. 225. 244  ITLOS Advisory Opinion, para. 145. 245  Article 3(3) of the TEU. 246  Articles 191–193 of the TFEU.

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Disappointingly, the Member States have not adopted a harmonized approach to the implementation of the provisions in Part XIII of the 1982 Convention on marine scientific research.247 On the other hand, there is an elaborate range of marine environmental secondary legislation that is science-based in orientation and substance including the Marine Strategy Framework Directive, the Water Framework Directive, and the Habitats and Birds Directive. As seen above, however, despite the diverse and sophisticated nature of this new generation of legal instruments, there remains considerable scope in the EU for conflict between users of the marine environment, such as shipping and fishing industries, as well as the energy sector. This challenge is exacerbated by the trans-boundary nature of some of these conflicts and the absence of effective management systems underpinned by the rule of law at local, national and regional levels. In this context, one contemporary development in EU law, which must be both flagged and welcomed, is the new Directive on maritime spatial planning.248 This instrument, when adopted by the EU legislature, will not detract from the powers of the Member States, who continue to retain full discretion regarding the types of development to be undertaken in the marine environment, the location and financing of industrial and commercial activities, as well as other related spatial planning matters. Nevertheless, worth noting from the point of view of this chapter, the implementation of marine spatial planning and integrated coastal management is to be based upon best available scientific knowledge.249 Assuming that these trends are set to continue, the integration of scientific knowledge into policy choices and the application of new technologies, will continue to pose many legal and practical problems for the EU, as well for public and private entities in the Member States. These problems are most acute in relation to the management of fisheries and in the various regulatory and policy attempts to address the human tragedy of irregular migration by sea. In some respects, we are living in both the spring of hope and the winter of despair,250 where science and technology are striving continuously to define the scope and nature of EU law with a view to securing the goals of economic prosperity, the upholding of human rights, the advancement of the

247  Long, supra note 7. 248  Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning OJ L 257, 28.8.2014, 135–145. 249  Ibid., Recital 18. 250  C. Dickens, A Tale of Two Cities (1859), Book 1, at 1.

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European social-democratic governance model, as well as protecting the natural environment.251 Undoubtedly, in these ephemeral times, science and technology are influencing all aspects of human interactions with the ocean. Thus, it may be appropriate to finish with a few lines from the poet William Butler Yeats, some of whose poems touch upon the fragility and relentless nature of the passage of time and life, with many references to the sea, including the epic: Cuchulain’s Fight with the Sea. Here is one of my favorites from a later collection, which dwells upon the transient nature of life: To a Child Dancing in the Wind Dance there upon the shore; What need have you to care, For wind or water’s roar? And tumble out your hair That the salt drops have wet; Being young you have not known The fool’s triumph, nor yet Love lost as soon as won, Nor the best labourer dead And all the sheaves to bind. What need have you to dread The monstrous crying of the wind? 251  Article 3 of the TEU.

Chapter 4

Developing an Equitable and Ecosystem-Based Approach to Fisheries Management Ruth Davis and Quentin Hanich Summary Much of the current literature on ecosystem based approaches to fisheries management focuses on the ecosystem impacts of fishing activities, and requirements to develop management plans that look beyond just target stocks. While this narrow interpretation is appropriate for fisheries with a limited diversity of stakeholder interests, particularly in isolated regions such as Antarctica, it requires a far more holistic approach in multispecies or multi-gear fisheries which feature a diverse range of socio-economic interests from both developed and developing states requiring a far more holistic approach. In such cases, for example the Pacific island tuna fisheries, it is important to consider management ­priorities—both in terms of target stocks and their broader ecosystem—and the varying distribution of the conservation burden and benefits among communities in developed and developing states. This paper outlines the legal and policy framework for the equitable distribution of the conservation burden and benefits within the context of ecosystem based approaches to fisheries management, using the Western and Central Pacific Fisheries Commission (WCPFC) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) as contrasting case studies.

1 Introduction The ecosystem approach to fisheries now represents the international standard for fisheries management, recognizing the need to manage fishing activities for their impact on different components of the ecosystem, not just the target species.1 Historically, it has been common for resource managers implementing this approach to focus on biological components of the ecosystem. *  Ruth Davis and Quentin Hanich, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong. 1  S.M. Garcia, A. Zerbi, C. Aliaume, T. Do Chi, G. Lasserre, The ecosystem approach to fisheries: Issues, terminology, principles, institutional foundations, implementation and outlook, FAO

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The need to broaden that approach to include human components is now increasingly recognized.2 Fisheries management takes place within a complex jurisdictional context that may bear little or no relationship to underlying marine ecosystems,3 however, particularly in the case of fisheries based around highly migratory or straddling stocks. In this context, fisheries management approaches that recognize and respond to the broader concerns of participants, particularly social and economic concerns, are more likely to be effective than those that do not. This efficacy is because management of straddling and migratory stocks depends upon cooperation among all participants in the fishery, and such cooperation is likely to be more forthcoming if the costs and benefits of managing the resource are fairly and transparently spread among all stakeholders. Conservation measures applied to an international fishery will impact, both directly and indirectly, the national interests of all participants in that fishery. Fishing restrictions represent opportunities forgone, in addition to the costs of supporting measures through research, monitoring and compliance. The burden of fisheries conservation and management measures developed around an ecosystems approach can fall disproportionately upon some states compared to others, depending upon their varying interests in the fisheries in question: coastal state or distant water fishing nation, favored gear type, revenue derived largely from licensing fees or from the sale or processing of fish, and the level of dependency of the local population on fisheries for income or food security. The impact of this conservation burden is typically overlooked in rightsbased approaches to fisheries management.4 Existing processes do not transparently study the burden that likely will be generated by each variation of a potential conservation measure. Nor do existing processes provide a framework of principles for distributing the conservation burden in a fair manner. In practice, within the decision-making processes of regional fisheries m ­ anagement organizations (RFMOs), draft conservation measures are opposed or weakened Fisheries Technical Paper No. 443 (FAO: Rome, 2003) and E. K Pikitch et al., “Ecosystem-Based Fishery Management,” Science 305 (2004), 346. 2  Ibid. 3  Lawrence Juda, “Rio Plus Ten: The Evolution of International Marine Fisheries Governance,” Ocean Development and International Law 33 (2002), 109, 111. 4  The Convention on Biological Diversity Conference of the Parties (‘COP’) have recognised this issue more generally in relation to biodiversity conservation: “Often those who benefit from conservation do not pay the costs associated with conservation and, similarly, those who generate environmental costs (eg pollution) escape responsibility.” Convention on Biological Diversity COP5 (15–26 May 2000, Nairobi, Kenya), Decisions V/6.

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as each member argues for exemptions, or as each member supports only such measures that impact minimally on their own interests. This chapter explores the context for developing an approach to fisheries management that recognises the full impact of conservation measures on RFMO member States and seeks to ensure the equitable distribution of both benefits and burdens. The goal is to develop a framework for securing necessary conservation measures that will protect long term fisheries conservation goals, while at the same time minimizing or mitigating short-term costs, particularly on developing states. We suggest that not only is consideration of the conservation burden a natural development of international principles for fisheries conservation and management, but that paying greater attention to the distribution of the burden ultimately improves the effectiveness of fisheries management.5 2

The Ecosystem Approach to Fisheries

Ecosystem based management is an approach to environmental management that, rather than focusing on an individual species or issue, attempts to consider all of the components of an ecosystem and the manner in which they interact. From its historical roots in the 1972 Stockholm Declaration,6 through its inclusion in the 1992 Rio Declaration7 and Agenda 21,8 the ecosystem approach is now recognized alongside the precautionary principle as a basic feature of sustainable development.9 The ecosystem approach represents something 5  This chapter forms part of the work of the Conservation Burden and Benefit Research Partnership, a global multi-disciplinary research partnership which is being lead out of the Australian National Centre for Ocean Resources and Security at the University of Wollongong. The partnership formally commenced in 2012 with presentation of a paper to the WCPFC Scientific Committee. In June 2013 the partnership met in Utrecht to develop a plan of work that currently involves a number of projects focussing on the identification of conservation burdens and on key principles for how the burden should be distributed. 6  Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), UN Doc. A/CONF/48/14/REV.1, Principle 2. 7  Declaration of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26/Rev.1, Principle 7. 8  Agenda 21: Programme of Action for Sustainable Development, UN Doc. A/CONF. 151/26 (1992), Art. 17.1, available at http://sustainabledevelopment.un.org/content/documents/ Agenda21.pdf. 9  FAO, Fisheries management. 2. The ecosystem approach to fisheries. 2.2 Human dimensions of the ecosystem approach to fisheries, FAO Technical Guidelines for Responsible Fisheries,

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of a turnaround for fisheries management, which traditionally has focussed on target species and devised fishing restrictions around the maintenance of populations of target species at some pre-determined level, e.g. MSY. Whilst some experts question whether the use of the ecosystem approach is more effective than traditional approaches to sustainable fisheries management,10 the approach now has strong endorsement at the global level through its inclusion in the 1995 UN Fish Stocks Agreement11 and the FAO Code of Conduct for Responsible Fisheries.12 As the ecosystem approach developed, it was recognized that social and economic factors also required consideration. According to the Food and Agricultural Organization (FAO), the human environment is clearly part of the equation: “An ecosystem approach to fisheries strives to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries.”13 Generational factors must also be considered. The FAO notes that the purpose of such an approach “. . . is to plan, develop and manage fisheries in a manner that addresses the multiple needs and desires of societies, without jeopardizing the options for future generations to benefit from the full range of goods and services provided by marine ecosystem.”14

No. 4, Suppl. 2, Add. 2 (FAO: Rome, 2009), 3; UNEP/CBD, Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth Meeting, Doc. UNEP/CBD/COPS/23, Decision V/6 (2000). 10   See, for example, Howard I. Browman and Konstantinos I. Stergiou et al., “Perspectives on ecosystem-based approaches to the Management of Marine Resources,” Marine Ecology Progress Series 274 (2004), 269. 11  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA), opened for signature 4 August 1995, entered into force 2001, ILM 34 (1995), 1547. 12  Code of Conduct for Responsible Fisheries, adopted by the FAO on 31 October 1995, available at http://www.fao.org/fishery/ccrf/en. See also, inter alia, Chapter 2, above, by Ronán Long. 13  FAO, Fisheries Management 2: The ecosystem approach to fisheries, FAO Technical Guidelines for Responsible Fisheries, No. 4, Suppl. 2. (FAO: Rome, 2003), 6. 14  Ibid.

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According to Trouwborst,15 the core elements of an ecosystem approach are, first, the holistic management of human activities; second, based on best available knowledge; and third, maintaining the integrity of the ecosystem, while simultaneously satisfying human needs. While the approach is all about the maintenance of ecosystems, it is clearly focused on the human dimension– both in terms of impacts on an ecosystem, and benefits derived from that ecosystem. This characteristic is clearly articulated by the United Nations in relation to oceans management, which “should be focused on managing human activities in order to maintain and, where needed, restore ecosystem health to sustain goods and environmental services, provide social and economic benefits for food security, sustain livelihoods in support of international development goals, including those contained in the Millennium Declaration, and conserve marine biodiversity.”16 Although by definition this approach requires consideration of social and economic factors, in practice it is still largely viewed in biological or ecological terms.17 If the economic and social contexts are ignored, however, conservation measures are unlikely to succeed. A process for explicitly considering the burden of proposed conservation measures could help redress this imbalance and ultimately improve their effectiveness. 3

The International Environmental Law Framework

To clearly demonstrate the longstanding concern with the distribution of conservation benefits and burdens, issues of fisheries management can be situated within the broader framework of international environmental law. The 1972 Stockholm Conference was pivotal in the development of modern international environmental law, as it was the first of the environmental “megaconferences,” so named because of their scale, extremely broad mandate, and long-term view of issues relating to human development and the natural environment.18 The conservation burden problem is implicitly recognised in the Stockholm Declaration, particularly Principle 11, which states: 15   Arie Trouwborst, “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,” RECEIL 18 (2009), 26. 16  Ibid., 31, citing UNGA Res. 61/222, “Oceans and the Law of the Sea” (20 December 2006), Preamble. 17  FAO, Human Dimensions of the Ecosystems Approach, 2. 18  Gill Seyfang, “Environmental mega-conferences–from Stockholm to Johannesburg and Beyond,” Global Environmental Change 13 (2003), 223.

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The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.19 Furthermore, Principle 23 recognizes that certain (environmental) standards that might be “valid for the most advanced countries . . . may be inappropriate and of unwarranted social cost for the developing countries.” By the time of the 1992 United Nations Conference on Environment and Development (UNCED), sustainable development had become the dominant paradigm, and the concept permeates the Rio Declaration,20 Agenda 21,21 and other documents that were produced at the meeting. Although not a new idea, sustainable development came to prominence in 1987 when the World Commission on Environment and Development (WCED) famously asserted that “Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs.”22 Over 25 years later, we are still far from an internationally agreed consensus on exactly what sustainable development requires. The WCED definition provides only vague guidance for policy makers. The FAO has sought to provide a more concrete definition: . . . [T]he management and conservation of the natural resource base, and the orientation of technological and institutional change in such a manner as to ensure the attainment and continued satisfaction of human needs for present and future generations. Such development conserves land, water, plants and animal genetic resources, is e­nvironmentally

19   See also, Principle 12, which requires resources to be set aside, inter alia, to help meet the costs of developing countries in incorporating environmental safeguards into their development planning. 20   Supra, note 5. 21   Supra, note 6. 22  World Commission on Environment and Development (WCED), Our Common Future UN Doc. A/42/427 (WCED: 1987) (“Brundtland Report”), Overview, paragraph 27.

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non-degrading, technologically appropriate, economically viable, and socially acceptable.23 Even this more detailed explanation, however, gives little guidance on how the concept is to be applied. What has become clearer is that sustainable development cannot be satisfied by a straight-forward balancing of economic development, social development and environmental protection.24 There are normative implications for the way in which balance is to be achieved, involving a redistribution of the burden of environmental protection from developing countries to industrialized nations.25 The Rio Declaration26 shows a clear, albeit implicit, recognition of the need to identify and manage conservation burdens. Principles 3, 6, and 7 declare: Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. Principle 6: The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. Principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities.

23   Sustainable development and natural resources management, FAO Conference Twentyfifth Session, Rome 11–30 November 1989, C89/2-Supp. 2 (FAO: Rome, 1989). 24  For the three pillars of sustainable development, see 2002 Johannesburg Declaration on Sustainable Development: UN Doc A/CONF.199/20 (4 September 2002), Annex paragraph 5. 25  Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford University Press: Third ed., Oxford, 2009), 54. 26  Declaration of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26/Rev.1.

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Developments in International Fisheries Law

Against this broader environmental law background, international fisheries law has also been developing–responding both to the more general push for sustainable development, and to specific problems that have arisen in the marine context. The foundation of modern fisheries governance remains the 1982 United Nations Convention on the Law of the Sea (UNCLOS),27 setting out its system of State jurisdiction based upon maritime zones. The treaty recognizes coastal States sovereignty over the living resources in internal waters, territorial seas, and archipelagic waters. It also established sovereign rights to coastal States over the living resources of their exclusive economic zone (EEZ), and it retains free access to fisheries on the remaining high seas. The modernday concept of freedom of the high seas is not an absolute freedom, however, but one subject to duties of cooperation and an overriding obligation to protect the marine environment and conserve the living and non-living resources within it.28 Through adoption of the EEZ concept,29 UNCLOS effectively removed a large portion of the world’s major fisheries from the high seas regime and brought them within the control of coastal States; and in the process some of the world’s smallest States were transformed into massive marine resource territories.30 In particular, these transformations provided significant opportunities to various sea-rich, but land-poor, small island States, which could now profit from licensing fees paid by distant water fishing fleets for access to their EEZ.31 As the adoption of UNCLOS predates the sustainable development revolution of the late 1980s and the 1992 UNCED, it incorporates references to some of the environmental principles that were under development during that 27  United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, available at http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm. 28  Ibid., Articles 87(2), 117–119, and 192. 29  Ibid., Part V. 30  For example, Kiribati is one of the smallest states in the world by land area (~ 820 km2) but through UNCLOS, it became one of the world’s largest maritime states, with an EEZ of approximately 3.5 m km2. See Kiribati, 2011 Annual Report to the Commission, Part 1: Information on Fisheries, Research and Statistics, Seventh Regular Session of the Scientific Committee to the Western and Central Pacific Fisheries Commission, Pohnpei, Federated States of Micronesia (9–17 August 2011). 31  In 2010, for example, access fees from foreign fleets fishing operating within Kiribati’s EEZ contributed 44% of the total government revenue. Ibid.

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period, but they do not feature as prominently as in later instruments. Very clearly, though, the social and economic needs of fishing communities and the special needs of developing States are to be taken into account in managing the resources of the EEZ,32 and in allocating to other States fish stocks that are surplus to coastal State capacity.33 At the adoption UNCLOS, it was suggested that granting property rights to coastal States would significantly resolve the problem of the tragedy of the commons in fisheries, and allow for effective fisheries management within coastal regions.34 By the early 1990s, however, it became increasingly apparent that on its own, UNCLOS was insufficient to address the increasing threats posed by overfishing, overcapacity, and destructive fishing practices.35 The rapid expansion of high seas fisheries targeting highly migratory and straddling stocks, principally tuna, was a particular concern. Such stocks require comprehensive management across their entire range, both within and outside of national jurisdiction, if sustainability of the fishery as a whole is to be maintained. This risk was not fully dealt with by UNCLOS. The Law of the Sea Convention requires States to cooperate “directly or through appropriate international organizations,” to ensure the conservation and optimum utilization of straddling and migratory fish stocks throughout their range.36 Coastal States and distant water fishing nations, however, disagreed on how to implement these obligations. The International Conference on Responsible Fishing, held in May 1992 in Cancun, Mexico, and the 1992 United Nations Conference on Environment and Development (UNCED), in Rio de Janeiro, Brazil began the successful 32   U NCLOS, Article 61. 33  Ibid., Article 62. 34  J.N. Moore, “Welcoming Remarks and Framing the Issues,” in Entry into Force of the Law of the Sea Convention, eds. M.H. Nordquist and J.N. Moore (The Hague: Martinus Nijhoff Publishers, 1995), 6. 35  There is a broad literature on the limitations of UNCLOS in regard to the conservation and management of migratory, straddling and high seas fisheries. See R. Rayfuse, “The Interrelationship Between the Global Instruments of International Fisheries Law,” in Developments in International Law, ed. E. Hey (Kluwer Law International, 1999); G. G. Schram and A. Tahindro, “Developments in Principles for the Adoption of Fisheries Conservation and Management Measures,” in ibid.; W. Lodge, “Improving International Governance in the Deep Sea,” The International Journal of Marine and Coastal Law 19 (2004), 299; and M. Hayashi, “Global Governance of Deep-Sea Fisheries,” The International Journal of Marine and Coastal Law 19 (2004), 289. 36  U NCLOS, Article 63–64. Article 64 also requires States to cooperate in establishing an appropriate international organisation in regions where none already exist.

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negotiation of two key instruments that would set new standards in international fisheries governance: the FAO Code of Conduct for Responsible Fishing and the United Nations Fish Stocks Agreement (UNFSA).37 The UNFSA and Code of Conduct negotiations covered over-lapping ground on some matters, incorporated similar concepts, and influenced each other’s development.38 Both instruments are based on important principles that are now regarded as fundamental to modern fisheries management, particularly the precautionary approach and ecosystem approach.39 In addition, UNFSA institutionalised the duty to cooperate through the mechanism of RFMOs,40 and required coastal States and Distant Water Fishing Nations (DWFNs) to implement compatible conservation and management measures across the range of the stocks.41 Both the Code of Conduct and UNFSA recognized the special requirements of small island developing States.42 Other global agreements, such as the Barbados Programme of Action for the Sustainable Development of Small Island Developing States (SIDS),43 and the World Summit for Sustainable 37  Code of Conduct for Responsible Fishing (‘Code of Conduct’), adopted by the FAO on 31 October 1995, available at http://www.fao.org/fishery/ccrf/en. 1995; Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (United Nations Fish Stocks Agreement or ‘UNFSA’), opened for signature 4 August 1995, entered into force 2001, ILM 34 (1995), 1547. 38   G. Moore, “The Code of Conduct for Responsible Fisheries,” in Developments in International Fisheries Law, ed. E. Hey (The Hague, Netherlands: Kluwer Law International, 1999), 91. 39  U NFSA article 5(c)-(e), 6; Code of Conduct Articles 6.2, 6.5, 7.5.1. 40  Ibid., Part III. 41   Ibid., Article 7.2. See M. Lodge and S. Nandan, “Some Suggestions Towards Better Implementation of the United Nations Agreement on Straddling Stocks and Highly Migratory Fish Stocks of 1995,” International Journal of Marine and Coastal Law 20 (2005), 345. 42  Article 5 of the Code of Conduct notes that the capacity of developing countries to implement the recommendations of the Code should be duly taken into account and proposes that relevant international organisations and financial institutions should recognise the special requirements of developing States and address the needs of these States, ‘especially in the areas of financial and technical assistance, technology transfer, training and scientific cooperation and in enhancing their ability to develop their own fisheries as well as to participate in high seas fisheries, including access to such fisheries.’ UNFSA refers to the special requirements and needs of developing States in its preamble, articles 3, 5, 11, 24, 25, 26 and Annex 1. 43   Barbados Programme of Action for the Sustainable Development of Small Island Developing States, Report of the Global Conference on the Sustainable Development of Small Island Developing States, UN Doc A/CONF. 167/9 (October 1994), Annex II.

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Development’s (WSSD) Johannesburg Plan of Implementation,44 also recognize the vital importance of marine resources to small island developing States. Further, UNCLOS, UNFSA, and the Code of Conduct each recognised the importance of artisanal and coastal fishing communities.45 In many small island developing States, artisanal and subsistence fisheries provide significant economic benefits, and they also are a critical source of protein for island populations.46 This brief recap of developments in modern fisheries law confirms that in addition to taking a precautionary and ecosystem approach, particular recognition is given to the special needs of developing States, especially small island developing States. The ecosystem, transparency and equity requirements of the two main instruments are important in supporting a conservation burden approach to fisheries management. Before considering this issue further, however, it is helpful to consider what factors might be relevant in the distribution of a conservation burden. .

5

Recognising and Accounting for the Burdens and Benefits of Conservation Measures

Any decision by an RFMO to impose a conservation measure upon a fishery will effectively allocate both costs (conservation) and benefits (fishing opportunities) among States’ parties. A conservation measure that restricts the activities or opportunities of various States in the context of managing a fishery is therefore also an implicit allocation of the resources of that fishery. Recognizing this outcome, UNFSA explicitly requires parties to ensure that conservation and management measures for straddling and highly migratory fisheries do not shift a disproportionate burden of conservation action onto developing

44  Article 30(g) of the WSSD Plan of Implementation calls on States to assist developing countries in conservation and sustainable management of fisheries resources, and Article 31(e) encourages RFMOs to give due consideration to the rights, duties and interests of coastal States, and the special requirements of developing States when addressing allocation of straddling and highly migratory fisheries. See Johannesburg Plan of Implementation on Sustainable Development, Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 December 2002, UN Doc. A/ CONF.199/20, 6. 45  U NCLOS, Article 61; UNFSA Articles 5 and 24; Code of Conduct paragraphs 6–8. 46  J. Bell et al., “Planning the Use of Fish for Food Security in the Pacific,” Marine Policy 33 (2009), 64.

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States.47 Unfortunately, neither the UNFSA nor other relevant fisheries instruments prescribe how parties or RFMOs should define or assess conservation burdens, nor do they provide any guidance on how any such conservation burdens should be distributed—other than prioritizing the concerns of developing States. Little benefit is gained from examining the rules regarding the allocation of fishing rights. While UNFSA lists a number of relevant factors, such considerations are not made exclusive or prioritized.48 The FAO Code of Conduct does not include allocation as a fundamental requirement of management, but advises that in order to assist decision-making on the allocation and use of coastal resources, States should promote the assessment of their respective values, taking into account economic, social and cultural factors.49 In the absence of specific guidance from these instruments, analysis of international fisheries law identifies four factors that will significantly influence the distribution of the burden and benefit of any fisheries conservation measure.50 These factors are: first, the location of the fishing activity; second, international law obligations regarding cooperation and non-discrimination; third, the recognition given to special requirements of developing States, and in particular, SIDS and artisanal/subsistence fishers; and fourth, conservation and management principles. The location of the relevant fishing activity is important because of the dependency of the UNCLOS jurisdictional regime upon the designation of maritime zones. Under UNCLOS and general principles of international law, a coastal State has sovereignty over its internal waters, archipelagic waters, and the territorial sea, and the marine living resources within all of those areas. The Law of the Sea Convention recognized sovereign rights to coastal States over the resources of their respective EEZs. The adoption of the EEZ gave coastal States exclusive resource rights that are subject to obligations regarding conservation, management and optimum utilization, and the requirement to cooperate in relation to straddling stocks and highly migratory species.51 The regime of high seas freedoms prevails in waters beyond national jurisdiction, 47  U NFSA Article 24 48  Ibid., Article 10. 49  Code of Conduct, paragraph 10.2.2. 50  This section builds upon an earlier analysis published in: Q. Hanich and Y. Ota, “Moving Beyond Rights Based Management: A Transparent Approach to Distributing the Conservation Burden in Tuna Fisheries,” International Journal of Marine and Coastal Law 28 (2013), 135. 51  U NCLOS, Articles 61–64.

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subject to duties of c­ ooperation and conservation.52 The location of the fishing activity therefore will govern the extent to which coastal States are required to conserve resources and to cooperate with other States in their management. Obligations concerning cooperation and non-discrimination also are important factors in distributing a conservation burden. There is no inherent connection between jurisdictional arrangements in UNCLOS, and underlying marine ecosystems. In this context, UNCLOS requirements for cooperation between coastal States and high seas fishing States in relation to highly migratory and straddling stocks are especially important in effective management of any marine ecosystem. The UNFSA helps clarify how cooperation is meant to work through the mechanism of RFMOs. UNFSA parties are obliged to cooperate in order to conserve and manage straddling fish stocks and highly migratory fish stocks, either directly or through appropriate sub-regional fisheries organizations or RFMOs.53 This approach should ensure that compatible conservation and management measures are implemented throughout the range of the stocks at the appropriate regional and national levels, and across both high seas and EEZs.54 Furthermore, all UNFSA parties are to apply the conservation and management measures established by relevant existing RFMOs. UNFSA explicitly states that only those States that agree to implement conservation and management measures of an existing RFMO (in regard to highly migratory and straddling stocks) shall have access to the fishery resources to which those measures apply.55 This obligation significantly extends the authority of RFMOs, as it indirectly binds all UNFSA parties to apply all relevant RFMO conservation measures, regardless of their status in relation to individual RFMOs.56 The UNFSA duty to cooperate, however, does not automatically translate into a duty to participate in an existing RFMO, or to establish a new one. Rather, UNFSA parties can choose in what manner they execute their duty to cooperate. They can become a member of the relevant organization, or simply agree to apply the conservation and management measures established by the relevant organization or arrangement.57 Conversely, for states seeking to participate in a fishery and so determine the nature and extent of conservations measures that apply, the membership rules 52  Ibid., Part VII Section 2. 53  U NFSA, Article 5. 54  Ibid., Article 7(2). 55  Ibid., Article 8(4). 56  Ibid., Article 8. 57  Ibid., Article 8(3).

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of the relevant RFMO are especially important. UNFSA provides some level of protection to new entrants because it requires that an RFMO be open to all States having a real interest in the fishery.58 Further, it prohibits discrimination against any State meeting that description. The term “real interest” should not be interpreted in an exclusive manner, and should, at minimum, include adjacent coastal States and States fishing for stocks on the high seas inside the area in question.59 Article 12 complements this provision by requiring the decisionmaking processes of RFMOs to be transparent. Furthermore, Article 119(3) of UNCLOS requires that, in relation to fishing on the high seas, “States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.” The third factor that bears upon the distribution of conservation burden in fisheries management is the importance of recognizing the special needs of vulnerable States and communities. The pattern of including this type of provision in general international environmental law has already been referred to. In the 1995 UNFSA, it is a prominent consideration. Article 24(1) provides: “States shall give full recognition to the special requirements of developing States in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and development of fisheries for such stocks . . .” More particularly, article 24(2) states that, in implementing the duty to cooperate with respect to the management of straddling and highly migratory stocks, States must consider: (a) the vulnerability of developing states which are dependent on fisheries for income and nutrition; (b) the need to protect subsistence and artisanal fishers and fish-­workers; and (c) [of particular importance to this inquiry] the need to ensure that such measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto developing states. There exist a range of more specific provisions, and combined they strongly support the argument that international fisheries law recognizes that the ­burdens and benefits of conservation measures should be identified, and 58  Ibid. 59  E. Molenaar, “The Concept of Real Interest and Other Aspects of Cooperation Through Regional Fisheries Management Mechanisms,” International Journal of Marine and Coastal Law 15 (2000), 475.

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steps should be taken, to ensure that they are distributed transparently and equitably. Lastly, international fisheries law prescribes conservation and management principles that directly impact the adoption of conservation and management measures, and the subsequent extent of any conservation burden. UNCLOS, UNFSA, and various other global fisheries and environment agreements require that conservation and management decisions shall be based on the best scientific evidence available,60 and that such agreements take into account traditional knowledge of the resources and their habitat,61 as well as relevant environmental and economic62 and social factors,63 including the special requirements of developing States.64 Importantly, in the context of this chapter, UNFSA and the Code of Conduct require the application of a precautionary approach, and they elaborate an ecosystem based approach to fisheries management that recognizes the interrelated nature of marine ecosystems.65 This concept includes establishing standards for the protection of marine biodiversity and the assessment, management, minimization and monitoring of impacts on associated and dependent species and the marine environment.66 A critical question of interpretation arises when considering the implementation of an ecosystem approach in the context of distributing a conservation burden. The FAO Technical Guidelines note that mixed-species fisheries require consideration of the different vulnerabilities and productivities of the various species that may be caught together.67 This provision raises a difficult question of interpretation for RFMOs as they consider conservation measures that apply a conservation burden across multi-species and multi-gear fisheries. For example, some commentators argue that the explicit reference to 60  U NCLOS, Articles 61 and 119, UNFSA, Article 5, and Code of Conduct, paragraph 6.4. 61  Code of Conduct, paragraph 6.4. 62  U NCLOS, Articles 61 and 119, UNFSA, Article 5, and Code of Conduct, paragraph 6.4. 63  Code of Conduct, paragraph 6.4. 64  U NCLOS, Articles 61 and 119 and UNFSA, Article 5. 65  U NCLOS Article 192 established the principle that all States held an obligation to protect and preserve the marine environment. This obligation is universal within the context of the LOSC and applies to all activities and all waters, including waters under national jurisdiction. Articles 61 and 119 applied this principle directly to fisheries and established the framework for an ecosystem based approach to fisheries management. For further discussion, see Hanling Wang, “Ecosystem Management and its Application to Large Marine Ecosystems: Science, Law and Politics,” Ocean Development and International Law 35 (2004), 41. 66  U NFSA, Articles 5 and 6. 67  FAO, The Ecosystem Approach to Fisheries, 34.

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the ­provision, “as qualified by relevant environmental and economic factors,” allows for the continued overfishing of one species under certain conditions in order to promote the optimum utilization of others.68 On the other hand, other analysts have argued that such an approach might be inconsistent with the provisions in UNCLOS relating to associated and dependent species, and that it would be “improper to ensure the maintenance of one or more living resources by endangering one or more other stocks.”69 These four factors (i.e., location; cooperation and participation; development status; and conservation requirements) frame the distribution of the conservation burden. The next stage of this chapter discusses two very different case studies and how their application of an ecosystem approach addresses conservation burden concerns. It is arguable that a relatively narrow, biologically focussed, view of the ecosystem approach to fisheries is adequate for fisheries with a limited diversity of stakeholder interests, particularly in isolated regions such as our first case study, Antarctica. By way of contrast, however, an effective ecosystem-based management system requires a far more holistic approach in multi-species or multi-gear fisheries where there is a diverse range of socio-economic interests from both developed and developing States, as is the case with our second case study, the Pacific island tuna fisheries. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was the first international fisheries convention to be negotiated based upon an ecosystem approach. It is well established, as it has been operating for over 30 years, and therefore is a trailblazer of the ecosystem approach to fisheries. CCAMLR predates the UNCLOS and UNFSA, and many of the more recent developments in international environmental law. The Western and Central Pacific Fisheries Commission (WCPFC), by contrast, is one of the newest RFMOs and was the first post-UNFSA RFMO to be established, and it clearly incorporated many of these principles. Several other important points of distinction can be drawn between the two fisheries regimes, apart from their age. CCAMLR deals with a region that is 68  L. Clarke, “Implementation of the Precautionary Approach and Reference Points,” in Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region, ed. Q. Hanich and M. Tsamenyi (Australian National Centre for Ocean Resources and Security, Wollongong, 2009). 69   B. Applebaum and A. Donohue, “The Role of Regional Fisheries Management Organisations,” in Developments in International Law, ed E. Hey (Kluwer Law International, Netherlands 1999).

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extremely remote, whereas the WCPFC includes fisheries that take place only a few miles offshore from Japan, Papua New Guinea and Hawaii. That contrast in geography is reflected in another difference. Whereas CCAMLR fisheries are largely high seas fisheries, the WCPFC fisheries are dominated by EEZs. CCAMLR fisheries are limited both in the range and size of the catch, being dominated by the luxury toothfish market, which while extremely valuable, is still relatively small in global terms. The WCPFC regulates the world’s largest tuna fishery, producing around 60 percent of the world’s tuna catch, valued at $7.2 Billion70 and comprised of a complex mix of species, fishing methods, fleets, and stakeholders. Management priorities in the two fisheries also differ. While CCAMLR was negotiated to address overfishing of icefish and threatened overfishing of krill, on the whole it has been able to focus on ecosystem issues. The WCPFC, in comparison, faces an urgent need to limit catches and reduce capacity across the range of fishing activities within its remit. While there are important ecosystem impacts that need addressing—particularly sharks—the WCPFC has focused its energies on the tropical tuna fisheries that have seen a significant increase in fishing effort and capacity in recent years. 6

Case Study Part 1: Ccamlr

CCAMLR71 is part of the Antarctic Treaty System (ATS).72 The CCAMLR Commission, is widely recognized as “. . . a world leader in developing and implementing the Ecosystem Approach to Fisheries and the Precautionary Approach.”73 The objective of the Convention is “the conservation of Antarctic marine living resources,” and “the term ‘conservation’ includes rational use.”74 The 70  Forum Fisheries Agency (FFA) Database, Value of WCPO Tuna Fisheries (Pacific Islands Forum Fisheries Agency: Honiara, Solomon Islands, 2013). 71  Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), done at Canberra, 1980, in force 7 April 1982, ILM 19 (1980), 837. 72  The Antarctic Treaty System comprises the 1959 Antarctic Treaty, done at Washington, 1959, in force 23 June 1961; and its associated instruments, which currently include the 1972 Convention for the Conservation of Antarctic Seals, done at London, 1927, in force 11 March 1978, ILM 11 (1972), 251; CCAMLR; and the 1991 Protocol to the Antarctic Treaty on Environmental Protection, done at Madrid, 1991, in force 14 January 1998, ILM 30 (1991), 1461. 73  C CAMLR Performance Review Panel, Report (1 September 2008), XIV. 74  C CAMLR, Article II (1–2).

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Convention also sets forth principles of conservation to be applied in the harvesting of resources, including “maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources,” and the “prevention of changes . . . in the marine ecosystem, which are not potentially reversible over two or three decades.”75 There are currently 25 members of CCAMLR, including the European Community, and another 11 acceding States.76 Because of its background within the ATS, not all of the States are members because of their interest in fishing. Most have broader interests in the management and conservation of the Antarctic marine environment more generally. What was originally a minority of fishing States, however, has now turned into a majority, with approximately two-thirds of the current members also fishing. The area to which CCAMLR applies is not the simple “south of 60 degrees south” formula of the Antarctic Treaty, but rather a set of coordinates designed as a rough approximation of the ecological boundary, the Antarctic Convergence. Under the terms of the Antarctic Treaty,77 there are no widely recognized maritime zones around the Antarctic continent, so the waters are largely regarded as high seas.78 The Convention area does include the territories of several sub-Antarctic islands with recognized maritime zones, so that the United Kingdom, Australia, France, and South Africa are all coastal States and all fishing nations within the CCAMLR area. By virtue of the Chairman’s Statement included in the Final Act of CCAMLR,79 coastal States can exempt their maritime territories from the application of conservation measures. Clearly this concession, if implemented, must have an impact on the effectiveness of conservation measures. From a conservation-burden perspective it simplifies matters by avoiding the usual conflicts between high seas and coastal State interests. For most fisheries, however, allowing coastal States to

75  Ibid., Article II(3)(b)–(c). 76  Acceding states which have not successfully applied to become members are not able to participate in CCAMLR decision-making: CCAMLR, Article VII(2). 77  Antarctic Treaty, Article IV. 78  For a discussion of this issues, see Stuart Kaye and Donald R. Rothwell, “Australia’s Antarctic Maritime Claims and Boundaries,” Ocean Development and International Law 26 (1995), 195. 79  Statement of the Chairman on 19 May 1980 regarding the application of the Convention on the Conservation of Antarctic Marine Living Resources to the waters adjacent to Kerguelen and Crozet over which France has jurisdiction and to waters adjacent to other islands within the area to which this Convention applies over which the existence of State sovereignty is recognized by all Contracting Parties, ILM 19 (1980), 838.

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simply opt out of conservation measures that are too burdensome is not a viable option. Current CCAMLR fisheries target Antarctic and Patagonian toothfish, mackerel icefish and Antarctic krill. Toothfish, which is mainly targeted by licensed fishers using bottom-set longlines, is a luxury table fish. It satisfies a relatively small but valuable market, and because of this status, it has historically been the target of substantial Illegal, Unregulated, and Unreported (IUU) fishing. The krill fishery is still relatively small in global terms, but it is rebuilding from the heights of the Soviet era. The 2012–13 catch was 212,000 metric tons (mt), compared to 156,289 mt in 2011–2012, while notifications for 2013–14 fisheries forecast a predicted catch of 545,000 mt.80 The increase is notable due to the critical role that krill plays in the Antarctic ecosystem as a key prey stock. It was the increasing commercial interest in krill that in part drove the negotiation of CCAMLR in the early 1980s, prior to the collapse of the Soviet Union and the subsequent demise of the krill fishery with it. Interest is picking up again, and krill has the potential to be very important for aquaculture, and also for pharmaceuticals. In terms of management priorities, the main problem for the CCAMLR Commission remains IUU fishing. Although the extended efforts of CCAMLR, in conjunction with other organizations, has meant that illegal fishing is now much less of a problem than in the past.81 The krill fishery is undergoing a period of significant development, affording CCAMLR an opportunity to make sure that the developing fishery is properly managed. The focus of CCAMLR as a whole, however, remains on ecosystem impacts, and in particular, the control of bycatch. In assessing the conservation burden of proposed measures, one of the most significant considerations for CCAMLR is the context provided by the Antarctic Treaty System. States that sign up to the CCAMLR Convention, even if they are not party to the Antarctic Treaty, must “acknowledge the special obligations and responsibilities of the Antarctic Treaty Consultative Parties for the protection and preservation of the environment of the Antarctic Treaty area,” under 80  C CAMLR, Report of the Thirty-Second Meeting of the Commission CCAMLR-XXXII, Hobart, Australia, 23 October–1 November, 2013. 81  At the 2012 CCAMLR meeting the COLTO (Coalition of Legal Toothfish Operators) Observer noted that IUU fishing activities were now ‘low’ and focussed on Patagonian toothfish, although it expressed concern over remnant IUU fishing for Antarctic toothfish. CCAMLR, Final Report 2012, 48. The issue has not been completely resolved, however, and “IUU fishing remains a problem in the Convention Area.” See “Report of the Standing Committee on Implementation and Compliance,” in ibid., 144.

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Article V(1). This overriding stewardship role sets CCAMLR apart from other RFMOs, and indeed it is a reason that sometimes CCAMLR is stated not to be an RFMO at all, but rather a conservation treaty. Regardless of the terminology, implicit in the stewardship concept is an acceptance of spreading the burden of protecting the Antarctic marine environment across all parties. There is no requirement, however, to avoid any disproportionate burden of conservation on developing States. CCAMLR pre-dated UNFSA and it does not include any specific requirement to protect the aspirations of developing States or artisanal communities. It also does not provide any reference to conservation burden concerns, and does not preference protection for developing State interests. An important factor in the case of CCAMLR is that, because the CCAMLR fisheries are largely high seas fisheries, the main burden of any conservation measure is the opportunity cost. The primary context in which burden -sharing is discussed is in terms of the cost of scientific research to support the development of conservation measures, and the costs of monitoring and compliance. In the 2009 CCAMLR Performance Review, there were significant concerns that the organization currently relied on a small number of members for these inputs, and that this situation posed a significant risk to CCAMLR’s management approach should any of those members withdraw those services. The need to develop mechanisms for burden-sharing for research and monitoring was one of the review’s recommendations.82 Looking more broadly, conservation burden concerns may grow in the future if the krill fishery is developed for aquaculture. This outcome could have significant food security implications, given the potential sheer size of a fully commercialised krill fishery. Any attempt to limit fishing mortality through the introduction of catch limits based on fishing history could raise conservation burden concerns if it did not consider the interests of developing States and new entrants. 7

Case study Part 2: WCPFC

The Western and Central Pacific Ocean tuna fisheries are the world’s richest and largest, with a record value of approximately $7.2 billion reported for 2012.83 The four key tuna species of interest (albacore, skipjack, yellowfin and 82  C CAMLR Performance Review Panel, Report (1 Sep 2008), 36. 83  F FA, Value of WCPO Tuna Fisheries (Excel Database) (Honiara, Pacific Islands Forum Fisheries Agency: 2013).

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bigeye) migrate across the EEZs and high seas throughout the region. Unlike other globally significant tuna fisheries, the majority of fishing effort in the WCPO occurs within the EEZs of the Pacific Island States, Indonesia, Japan, and the Philippines. Approximately 88 percent of all reported WCPO tuna catches are harvested from waters under national jurisdiction.84 These tuna fisheries are the only significant renewable resource for many of these developing States, and they have long been viewed as their primary development opportunity. Access fees from foreign fishing vessels deliver much-needed financial contributions to governments, while domesticallybased fishing fleets and support industries generate important employment and income. In some cases, revenue from tuna can contribute up to half of gross domestic product, and it is a significant component of the national economy for 7 of the 14 Pacific island States.85 The tuna fisheries are also critically important to some of these States for food security and employment in artisanal fisheries. Scientists have recommended that Pacific island governments should increase local access to tuna fisheries in order to partly meet increasing Pacific island food security requirements.86 Conservation is increasingly a concern as some tuna fisheries are now threatened by overfishing and overcapacity (i.e., too many vessels). The WCPFC’s Scientific Committee has repeatedly expressed concerns regarding current levels of fishing and the number of fishing vessels, and it has repeatedly recommended reductions in catches for bigeye tuna, and limits for yellowfin, skipjack and albacore.87 The migratory and intermeshed characteristics of the WCPO tropical tuna fisheries make it difficult for the region to reduce catches of some threatened tuna and other species, without impacting fleets targeting other tuna that are currently not threatened by overfishing. For example, purse seiners primarily target skipjack, and to a lesser degree yellowfin, but also catch bigeye incidentally. While the incidental catch of bigeye by purseseine fleets accounts for a very small percentage—1 to 3 percent—of the total purse-seine catch, it nevertheless has a significant impact on bigeye stocks due 84  Ibid. 85  Q. Hanich, F. Teo and M. Tsamenyi, “A Collective Approach to Pacific Islands Fisheries Management: Moving Beyond Regional Agreements,” Marine Policy 34 (2010), 85. 86  J. Bell, M. Kronen, et al., “Planning the Use of Fish for Food Security in the Pacific,” Marine Policy 33 (2009), 64. 87  WCPFC, Report of the Ninth Regular Session of the Scientific Committee of the Western and Central Pacific Fisheries Commission, Ninth Regular Session of the Scientific Committee of the Western and Central Pacific Fisheries Commission, Pohnpei, Federated States of Micronesia, 6–14 August (Western and Central Pacific Fisheries Commission: 2013).

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to the sheer size of the catch. For the region to resolve current conservation threats, it must reduce catches of bigeye and limit catches of yellowfin and albacore by longliners, and restrict the operation of purse-seine vessels that are targeting highly productive skipjack and yellowfin. The WCPFC is the mandated RFMO for the WCPO tuna fisheries and was the first post-UNFSA RFMO. In many respects, it mirrors UNFSA provisions with its precautionary and ecosystem approaches. Unlike CCAMLR, however, there are extensive references in the WCPFC Convention for the need to take into account the special requirements of developing States, Small Island Developing States (SIDS), and artisanal, small-scale and subsistence fishers. Article 30 of the WCPF Convention prescribes the key principles and standards relating to the requirements of developing States. The Pacific Islands Forum Fisheries Agency (FFA) referred to this Article as the “foundation on which the Commission will be built.”88 The Article prescribes the establishment of a fund to facilitate the effective participation of developing State parties, institutes the principle that the WCPFC must take into account the special requirements of developing States (and territories and colonies), particularly small island States, and prescribes the following standards that the WCPFC must take into account when giving effect to the duty to cooperate. The Commission must consider: the vulnerability of these States and territories that are dependent on the fisheries, including food security concerns; the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and fishworkers, as well as indigenous people in these States and territories; and, the need to ensure that measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto these States and territories.89 The WCPF Convention also recognizes the special requirements of developing States in its Preamble, which refers to vulnerability, dependence upon fisheries, and need for special assistance to participate effectively in the conservation, management and sustainable use of the stocks. Other relevant references in the WCPF Convention include: Article 7 (due consideration to the respective capacities of such State to apply conservation and management principles and their need for assistance); Article 10 (needs, conditions and interests of small island developing States when developing criteria for alloca88  Quote attributed to the FFA as reported in S. Tarte, Report on the Third Session of the Preparatory Conference for the Establishment of the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (Suva, Fiji, University of the South Pacific, 2002), 5. 89  WCPF Convention, Article 30.

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tion); and, Article 18 (discount in budget contribution calculations for catches in developing States by vessels flagged to that State). Like the UNFSA, the WCPF Convention elaborates an ecosystem based approach to fisheries management that recognises the need to avoid adverse impacts on the marine environment and maintain the integrity of the marine ecosystem, while minimizing the risk of long term or irreversible effects of fishing operations.90 Following the adoption of the WCPF Convention, the FAO coordinated a number of activities that elaborated upon the ecosystem-based approach to fisheries management and further developed standards for reducing bycatch of non-target species.91 The resulting guidelines and technical papers built on provisions within the FAO Code of Conduct, and focused significantly on social and generational equity concerns. These subsequent developments are important within the context of the WCPF Convention because they prescribe internationally recommended standards that were developed through globally consultative processes. As such, they are relevant to Article 5 of the WCPFC Convention, which requires members of the Commission to take into account generally recommended international minimum standards and recommended practices and procedures. Social, economic and generational equity concerns are particularly important in the context of the WCPO tuna fisheries due to the inter-meshed, multigear characteristics of the fisheries and high dependence upon the fisheries by developing States. The FAO Technical Guidelines note that mixed-species fisheries (such as the WCPO tropical tuna fisheries) require consideration of the different vulnerabilities and productivity of the various species that may be caught together.92 For example, the guidelines state: [I]t will be necessary to implement a set of consistent catch limits across the range of target and by-catch species to reflect these differences and address desired ecosystem related objectives (such as maintaining food

90  Ibid., Preamble. 91  The guidelines and technical papers were developed following the 2001 Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem and the 2002 Expert Consultation on Ecosystem-Based Fisheries Management. See FAO, The Ecosystem Approach to Fisheries (Rome, Italy, 2003); S. Garcia et al., The Ecosystem Approach to Fisheries: Issues, Terminology, Principles, Institutional Foundations, Implementation and Outlook (FAO: Rome, 2003); FAO, Best Practices in Ecosystem Modelling for Informing an Ecosystem Approach to Fisheries (Rome: 2008). 92  FAO, The Ecosystem Approach to Fisheries, 34.

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webs). Catch limits for target species may need to be modified to control catches of more vulnerable species.93 The implication of this approach is that a catch or effort limit may be established at a level that ensures the long-term conservation of the most vulnerable stock. In the case of the WCPO purse seine fishery, this approach would mean that catch or effort levels would be set at a low level that would be sustainable for the vulnerable bigeye, rather than at significantly higher levels that would be sustainable for the highly productive skipjack. The FAO Technical Guidelines and the WCPF Convention, however, both allow for the consideration of human “well-being and equity”94 and “economic factors, including the special requirements of developing States in the Convention Area, particularly small island developing States.”95 These terms could be interpreted as allowing for the adoption of catch or effort limits that would be sustainable for skipjack, but result in significant levels of overfishing of bigeye. Such a measure might be favored by developing coastal States that primarily benefit from purse seine catches of skipjack, and receive little benefit from bigeye. In terms of management priorities, the problems facing the WCPFC are quite different from those facing CCAMLR. The conservation imperative to reduce or limit fishing mortality for key species is complicated by the characteristics of the WCPO fisheries (multi-gear, multi-species, multi-national in a complex and intermeshed system that is hard to unravel). This context makes it impossible to implement an ecosystem-based approach based purely on scientific assessments. A far more sophisticated and holistic approach is required that is capable of measuring and considering the conservation burden and benefit outcomes across key stakeholders from each measure. 8

Conclusions and Recommendations

Clearly the issues that face the managers of the WCPO fisheries and those in the Southern Ocean are very different. The conservation burden factors, including location, obligations regarding cooperation and non-discrimination, special interests of vulnerable groups and States, as well as fundamental conservation principles, can create very different circumstances within which negotiations 93  Ibid., 34. 94  Ibid., 15. 95  WCPF Convention, Article 5(b).

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over fisheries conservation measures unfold. For such negotiations to be effective, and for them to result in ecosystem-based approaches that are supported and implemented effectively, RFMOs must pay better attention to these surrounding circumstances. For any required conservation outcome, there will typically be a range of management options available to the parties. Each management option will support conservation and management objectives to varying degrees. Furthermore, each management option also will affect the interests of WCPFC and CCAMLR members, either directly or indirectly, and to varying degrees. What this finding means is that when the scientific advice demands that certain conservation action be taken, it makes sense to look at each possible conservation measure that could be implemented, and then transparently assess the burdens and benefits that will come from each one. The intention is to identify measures that, first, implement the scientific advice; second, do so with minimal impact on diverse interests; and, third, distribute the conservation burden across relevant States in an equitable and politically acceptable manner.96 96  In recent developments, the WCPFC has made steps in this direction by passing, in December 2013, CMM 2013–06, “Conservation and Management Measure on the Criteria for Consideration of Conservation and Management Proposals,” and CMM 2013–07, “Conservation and Management Measure on the Special Requirements of Small Island Developing States and Territories.” Analysis of the new measures is beyond the scope of this chapter. Their implementation, however, will be followed with interest.

Chapter 5

Sustaining Atlantic Marine Species at Risk: Scientific and Legal Coordinates, Sea of Governance Challenges David L. VanderZwaag 1 Introduction Ocean science is fast advancing with one of the leading international initiatives being the Ocean Tracking Network (OTN).1 Based at Dalhousie University in Canada, OTN is a seven-year multidisciplinary project2 linking scientists around the globe in tracking marine animals, and mainly using acoustic telementry technology.3 The $168 million (Cdn) project has facilitated the tagging of various marine species, from sharks to sturgeons, with tiny acoustic transmitters and placement of receivers (along the ocean floor) to create “listening ‡  This

paper is partly drawn from two recently co-authored articles, Cecilia Engler-Palma et al., “Sustaining American Eels: A Slippery Species for Science and Governance,” Journal of International Wildlife Law & Policy 16 (2013): 128 and Richard Apostle et al., “Sustaining Atlantic Sturgeon: Stitching a Stronger Scientific and Governance Net,” Journal of International Wildlife Law & Policy 16 (2013): 170. The author wishes to acknowledge the research support of the Canadian Natural Sciences and Engineering Research Council (NSERC) and the Social Sciences and Humanities Research Council of Canada (SSHRC). * Professor of Law and Canada Research Chair in Ocean Law and Governance, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University. 1  For a recent overview of OTN, see Tsafrir Gazit, Richard Apostle and Robert Branton, “Deployment, Tracking, and Data Management: Technology and Science for a Global Ocean Tracking Network,” Journal of International Wildlife Law & Policy 16 (2013): 112. 2  The project has five multidisciplinary themes: oceans physics and modeling; biology and behavior of migratory marine living resources; trophic interactions; impacts of climate change; and ocean governance. See David L. VanderZwaag, Richard Apostle and Steven J. Cooke, “Tracking and Protecting Marine Species at Risk: Scientific Advances, Sea of Governance Challenges,” Journal of International Wildlife Law & Policy 16 (2013): 105, 108; and OTN, “About the Project,” http://www.oceantrackingnetwork.org/about (last accessed December 12, 2013). 3  For a review of the technologies, see M.R. Heupel, J.M. Semmens and A.J. Hobday, “Automated Acoustic Tracking of Aquatic Animals: Scales, Design and Deployment of Listening Station Arrays,” Marine and Freshwater Research 57 (2006): 1.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004299610_007

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curtains.”4 Data is collected from the receivers in various ways, including by robotic subs, surface ships, shore receiving stations and satellite.5 Although OTN’s official start date was in February 2010, it already has supported major tracking research efforts. By early 2013, OTN databases contained information from almost 250 scientists at over 70 institutions in 14 countries on some 30,000 releases of tagged animals from 85 tracking projects.6 This paper focuses on two marine species at risk being tracked by OTN off the Atlantic coast of Northern America, the American eel (Anguilla rostrata) and the Atlantic sturgeon (Acipenser oxyrinchus).7 A three-part review is provided for each species. The state of scientific information and understanding is first described. Key international legal coordinates are then summarized, including relevant provisions of the United Nations Convention on the Law of the Sea (UNCLOS).8 Lastly, major governance challenges are highlighted, such as the need to forge additional transboundary management arrangements. The paper concludes with a central observation regarding the relationships among science, technology and ocean law and policy. Advances in tracking technologies and concomitant increases in scientific understanding do not translate easily into improved ocean governance. 2

American Eel

A Scientific Coordinates Substantial scientific knowledge exists regarding the American eel’s distribution, catadromous character and panmictic nature. American eel are widely distributed in freshwaters, estuaries and coastal marine waters of the western North Atlantic Ocean with a range from the southern tip of Greenland to

4  Gazit, Apostle and Branton, “Deployment, Tracking, and Data Management,” 113. 5  Ibid. 6  Ibid., at 122. 7  This paper does not address other Atlantic marine species being tracked by OTN, such as the Atlantic salmon and grey seals. For reviews of scientific and governance approaches/ challenges surrounding those two species, see David L. VanderZwaag, Maria Cecilia EnglerPalma and Jeffrey A. Hutchings, “Canada’s Species at Risk Act and Atlantic Salmon: Cascade of Promises, Trickles of Protection, Sea of Challenges,” Journal of Environmental Law and Practice 22 (2011): 267, and Tsafrir Gazit, Damian Lidgard and Katie Sykes, “Changing Environments: Tracking the Scientific, Socio-political, Legal and Ethical Currents of the Grey Seal—Cod Debate in Atlantic Canada,” Journal of International Wildlife Law & Policy 16 (2013): 266. 8  December 10, 1982, 1833 U.N.T.S. 3.

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northeastern South America.9 The animals are categorized as catadromous, as they spawn in salt water and after an oceanic larval stage, migrate to estuaries or freshwater for growth to maturity.10 American eel are considered to be panmictic, that is, comprising a single population, which mate randomly in the Sargasso Sea.11 In recent decades, the American eel stock has suffered serious declines. The stock status in the United States is considered depleted.12 The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has assessed American eel as threatened.13 The threats to American eel are well documented. They include habitat degradation, fishing mortalities, toxic chemical contamination, invasive species (such as the zebra mussel) altering water quality and trophic relations, and the introduced swim bladder parasite, Anguillicoloides crassus.14 Shifts in oceanatmospheric conditions may also be a key factor in declining reproduction and survival rates.15 The presence of dams is considered to be one of the greatest threats to American eels by fragmenting habitats and causing turbine mortalities. At least 15,115 dams from Maine to Florida have been estimated to restrict or prevent fish passage.16 Some 8,411 dams are thought to block access to 12,140 km 9  Their range may also extend to Iceland where there may be hybridization, or at least introgression, with the population of European eel. K.E. Greene et al., Atlantic States Marine Fisheries Commission, Atlantic Coast Diadromous Fish Habitat: A Review of Utilization, Threats, Recommendations for Conservation, and Research Needs, Habitat Management Series No. 9, Washington, D.C., Chapter 7, 154, available at http://www .asmfc.org/uploads/file/Chp7_American_Eel_Final.pdf. 10  Ibid. 11  Committee on the Status of Endangered Wildlife in Canada (COSEWIC), COSEWIC Assessment and Status Report on the American Eel (Anguilla rostrata) in Canada (2012), 10–12. 12  Atlantic States Marine Fisheries Commission (ASMFC), American Eel Benchmark Stock Assessment, Stock Assessment Report No. 12-01 (2012), 4. 13  C OSEWIC, “Assessment and Status Report,” vi. 14  Ibid., 62–76. 15   National Oceanic and Atmospheric Administration (NOAA), “Changes in Ocean Conditions in Sargasso Sea Potential Cause for Decline in Eel Fishery,” http://www .noaanews.noaa.gov/stories2008/20080306_eel.html (last accessed April 25, 2013). 16  Rob McGregor et al., “Natural Heritage, Anthropogenic Impacts, and Biopolitical Issues Related to the Status and Sustainable Management of American Eel: A Retrospective Analysis and Management Perspective at the Population Level,” in Alexander J. Harro et al., Challenges for Diadromous Fishes in a Dynamic Global Environment (Bethesda, Maryland: American Fisheries Society, 2009), 713, 723.

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of eel habitat in the St. Lawrence watershed.17 Passage provisions for eels at hydroelectric facilities are rare and mortalities of migrating eels can be high.18 Fishing for glass eels (clear juveniles) and their export to East Asian eel farming countries is a major concern. The export market for glass eels has offered prices exceeding $2000/lb.19 Such high market prices have encouraged poaching in some states.20 Combined imports from the United States and Canada to Asia are estimated to have increased from just under 10t in 2010 to over 50t in the first six months of 2011 alone.21 Landings in 2013 in the state of Maine totaled 18,253 pounds, and were valued at $33 million.22 Substantial scientific uncertainties and gaps in scientific understandings continue to surround the American eel. The diverse paths eels take to the Sargasso Sea and the behavioral mechanisms responsible remain cloaked in mystery.23 Adult eels have never been seen in the Sargasso Sea and have never been observed mating.24 Little knowledge exists about factors influencing the productivity of eels in fresh water, estuaries or ocean areas.25 Spawning biomass is difficult to assess in light of the broad geographic range and panmictic nature.26 While OTN tracking efforts are seeking to answer some of the key scientific questions, such as the migratory paths and exact spawning areas in the Sargasso Sea, one major discovery stands out to date. OTN tracking of American eels in the Gulf of St. Lawrence has shown substantial predations of eels before they could migrate towards the Sargasso Sea. The porbeagle shark is identified as the likely predator.27 Tagging studies of the porbeagle shark s­ uggest the 17  Ibid. 18  Ibid., 724. 19  A SMFC, “American Eel Benchmark,” 4. 20  Vicki Crook and Miki Nakamara, “Glass Eels: Assessing Supply Chain and Market Impacts of a CITES Listing on Anguilla Species,” Traffic Bulletin 35 (April 2013): 24, 26. 21  Ibid. 22  Atlantic States Marine Fisheries Commission, “ASMFC American Eel Board Postpones Action on Draft Addendum IV: Maine Commits to Develop Plan with Industry to Control Glass Eel Harvest,” News Release (October 31, 2013). 23  Cecilia Engler-Palma et al., “Sustaining American Eels: A Slippery Species for Science and Governance,” Journal of International Wildlife Law & Policy 16 (2013): 128, 141. 24  Ibid., 130. 25  Ibid. 26  Luis A. Vélez-Espino and Marten A. Koops, “A Synthesis of the Ecological Processes Influencing Variation in Life History and Movement Patterns of American Eel: Towards a Global Assessment,” Reviews in Fish Biology and Fisheries 20 (2010): 163, 165. 27  Engler-Palma et al., “Sustaining American Eels,” 165.

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pupping grounds for females are located in the Sargasso Sea.28 This proximity offers the plausible conclusion that sharks and eels form a strong predatorprey relationship, with sharks tracking the migration of eels south to their reproductive sites.29 This relationship also raises a future management issue of how far to protect the porbeagle shark from exploitation, since it is also considered a marine species at risk.30 B International Legal Coordinates While various “soft law” documents are relevant to the management of American eels,31 particularly the FAO Code of Conduct for Responsible Fisheries32 and its technical guidelines on precautionary33 and ecosystem approaches,34 three conventions are especially relevant to management as well. Key agreements are the UNCLOS, the Convention on Biological Diversity (CBD)35 and potentially, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).36 i UN Convention on the Law of the Sea Although various provisions of UNCLOS may apply to American eel management, including the duty to cooperate in the conserving and managing living resources of the high seas,37 and the obligation to protect the habitat of depleted, threatened or endangered species,38 the primary coordinates are found in Article 67, which sets out responsibilities of states for managing catadromous species such as eels. A coastal state in whose waters catadromous species spend the greater part of their life cycle has management r­ esponsibility

28  Ibid. 29  Ibid. 30  For example, in March 2013, the porbeagle shark was added to Appendix II of the Convention on International Trade in Endangered Species (CITES). Ibid., 165–166. 31  See Engler-Palma et al., “Sustaining American Eels,” 142–143. 32  October 31, 1995, http://www.fao.org/docrep/005/v9878/c/v9878e00.htm (last accessed November 6, 2013). 33  FAO, Precautionary Approach to Capture Fisheries and Species Introductions, FAO Technical Guidelines for Responsible Fisheries No. 2 (1996). 34  FAO Fisheries Department, The Ecosystem Approach to Fisheries, FAO Technical Guidelines for Responsible Fisheries No. 4, Suppl. 2 (2003). 35  June 5, 1992, 1760 U.N.T.S. 79. 36  March 3, 1973, 993 U.N.T.S. 243. 37  U NCLOS, Article 118. 38  U NCLOS, Article 194(5).

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and must ensure the ingress and egress of migrating fish.39 Where catadromous fish migrate while as juvenile or maturing fish, through the exclusive economic zone of another state, management is to be regulated by agreement between the coastal state and other states concerned.40 Such agreement also must ensure the rational management of the species.41 American eel might be described as “slipping through the cracks” of UNCLOS. The drafters did not have in mind the possibility of a single, panmictic breeding population requiring broader inter-regional cooperation.42 Article 67 of UNCLOS merely requires management cooperation between the coastal state where the catadromous species spends the greater part of its life cycle and the state through which the species migrates in the EEZ. ii Convention on Biological Diversity While the CBD is relevant to American eel management on various fronts including some of biodiversity targets adopted by Parties in 2010,43 the Convention may have particular relevance to future protection of the American eel’s spawning ground in the Sargasso Sea. Parties have a general duty to cooperate in conserving biological diversity in areas beyond national jurisdiction.44 A regional workshop, convened under CBD auspices to facilitate the identification of ecologically or biologically significant marine areas (EBSAs), identified the Sargasso Sea as an EBSA and has noted the importance of the area as a spawning ground for both American and European eels.45 The EBSA determination should help support an initiative by the Sargasso Sea Alliance, a consortium of the Bermuda government, leading conservation and marine science

39  U NCLOS, Article 67(1). 40  U NCLOS, Article 67(3). 41  Rational management is not defined. For a further discussion, see Cyril De Klemm, “Migratory Species in International Law,” Natural Resources Journal 29 (1989): 935, 970–973. 42  Engler-Palma et al., “Sustaining American Eels,” 144. 43  For example, target 6 urges that by 2020 all fish are managed and harvested sustainably, legally and applying ecosystem approaches with recovery plans and measures in place for all depleted species. Decision X/2, The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets (2010). For a further discussion of CBD relevance, see EnglerPalma et al., “Sustaining American Eels,” 144–145. 44  C BD, Article 5. 45  C BD, Reports of the Wider Caribbean and Western Mid-Atlantic Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine Areas, UNEP/ CBD/SBTTA/16/INF/7 (2012).

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organizations and others, to develop appropriate management arrangements and measures for the Sargasso high sea areas.46 iii Convention on International Trade in Endangered Species CITES has been used to protect the European eel but not the American eel. The European eel was listed under CITES’ Appendix II in 2007. Any trade in Appendix II species is restricted and requires an export permit from the state of export with the permit verifying the export will not be detrimental to the species’ survival.47 Although the United States considered submitting an Appendix listing proposal for American eel to the 16th Conference of the Parties of CITES in March 2013, in the end it did not to proceed.48 Even if American eel would be listed in the future, CITES offers limited protection. CITES depends on international trade controls and does not address harvestings occurring solely within countries nor habitat conservation issues. C Governance Challenges Ensuring the sustainability of the American eel remains a daunting challenge. Some 25 jurisdictions share responsibility for their management.49 How to assess their population status remains slippery in light of their panmictic nature, broad geographical range and modeling limitations.50 Two main international governance challenges stand out. They are the need to address limited bilateral cooperation between Canada and the United States, and the need to consider broader regional cooperation in monitoring and managing the American eel throughout its range.

46  See Michael J. Miller and Reinhold Hanel, The Sargasso Sea Subtropical Gyre: The Spawning and Larval Development Area of Both Freshwater and Marine Eels, Sargasso Sea Alliance Science Report Series, No. 8 (2011); D. d’A Laffoley et al., The Protection and Management of the Sargasso Sea: The Golden Floating Rainforest of the Atlantic Ocean, Summary Science and Supporting Evidence Case (Washington, D.C.: Sargasso Sea Alliance, 2011). 47  C ITES, Article IV. 48  Department of the Interior, Fish and Wildlife Service, “Conference of the Parties’ to the Convention on International Trade in Endangered Species of Wild Fauna and Flora: Sixteenth Regular Meeting: Taxa Being Considered for Amendments to the CITES Appendixes,” Fed. Reg. Notice, 77 FR 21798, 21800 (April 11, 2012). 49  MacGregor et al., “Natural Heritage, Anthropogenic Impacts,” 714. 50  G. Chaput and D. Cairns, “Mortality Reference Points for the American Eel (Anguilla rostrata) and an Application for Evaluating Cumulative Impacts of Anthropogenic Activities,” Canadian Science Advisory Secretariat Research Document 2011/053 (2011).

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i Addressing Limited Bilateral Cooperation Canada and the United States have not placed cooperative American eel management as a priority. No bilateral agreement specific to American eel conservation has been negotiated even though UNCLOS suggests such an agreement should be forged.51 Binational cooperative efforts to date have been limited, with three avenues of cooperation evident. First, the Great Lakes Fisheries Commission, established pursuant to a 1954 agreement,52 created a bilateral American Eel Task Group in 2006 with the aim of strengthening scientific understanding and supporting the recovery of eels in the St. Lawrence River and Lake Ontario. While reportedly working on a bilateral memorandum of understanding in relation to the American eel,53 the Task Force has placed the initiative on hold and it is presently inactive.54 Second, the Gulf of Maine Council on the Marine Environment, established in 1989 by the premiers of New Brunswick and Nova Scotia and the governors of Maine, Massachusetts, and New Hampshire, has raised public awareness of American eel declines. The restoration of coastal and ocean habitats is one of the goals of the Council. In 2007, it published a report, American Eels: Restoring a Vanishing Resource in the Gulf of Maine.55 Pursuant to the Council’s Action Plan 2007–2012, 49 habitat restoration projects were funded, with an estimated 145 miles of streams opened for fish passage.56 The Council’s Action Plan 2012– 2017 pledges to continue providing habitat restoration grants and technical 51  Article 67 of UNCLOS requires that where a catadromous species from a coastal state migrates through the EEZ of another state, management must be regulated by agreement. While the migratory routes of adult silver eels to the Sargasso Sea remain uncertain, movements of larvae and glass eels during their migration towards continental waters do likely transit the United States’ EEZ. Personal Communication, Professor Julian Dodson, Department of Biology, University of Laval, November 12, 2012. 52  Convention on Great Lakes Fisheries between the United States and Canada, September 10, 1954, 238 U.N.T.S. 97. 53  Rob MacGregor et al., “Declines of American Eel in North America: Complexities Associated with Binational Management,” in International Governance of Fisheries Ecosystems: Learning from the Past, Finding Solutions for the Future, eds. M.G. Schechler, N.J. Leonard and W.W. Taylor (2008), 357, 370. 54  Personal Communication with John M. Dettmers, Senior Fisheries Biologist, Great Lakes Fishery Commission, February 27, 2013. 55  Gulf of Maine Council on the Marine Environment, American Eels: Restoring a Vanishing Resource in the Gulf of Maine (2007), available at http://www.gulfofmaine.org/council/ publications/american_eel_high-res.pdf. 56  Gulf of Maine Council on the Marine Environment, Action Plan 2012–2017 (2012), 11.

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assistance for restoring coastal ecosystems.57 The Gulf of Maine Council does not directly address fisheries management issues.58 The Canada-U.S. Transboundary Resources Steering Committee is a third avenue of limited cooperation. The Committee, established in 1995 as an informal arrangement to facilitate federal coordination of scientific research and fisheries management in the Gulf of Maine region,59 has created a Species at Risk Working Group. The Working Group has developed a transboundary species at risk matrix that tracks the listing and recovery efforts for marine species at risk in the two countries.60 American eel has been listed on the matrix.61 However, since neither Canada62 nor the United States63 has proceeded with formal listing of the American eel under species at risk legislation, no recovery discussions appear to have occurred to date. Various questions face Canada and the United States regarding possible future directions for American eel cooperation. Should a future agreement be informed or formal? Should multiple agreements be developed, for example, one covering the St. Lawrence River and Lake Ontario, and another for the Atlantic coastal areas, or should a single agreement be concluded? What should the content of an agreement or agreements include, for example—just

57  Ibid., 4. 58  David L. VanderZwaag, “Transboundary Challenges and Cooperation in the Gulf of Maine Region: Riding a Restless Sea Toward Misty Shores,” in Law of the Sea: The Common Heritage and Emerging Challenges, ed. Harry N. Scheiber (The Hague: Martinus Nijhoff, 2000), 265, 277. 59  The primary focus of the Steering Committee has been on developing scientific advice and allocating quotas for three shared stocks (cod, haddock and yellowtail flounder) on Georges Bank. See Emily J. Pudden and David L. VanderZwaag, “Canada-United States Bilateral Fisheries Management on the Gulf of Maine: Struggling Towards Sustainability under the Radar Screen,” in Recasting Transboundary Fisheries Management Arrangements in Light of Sustainability Principles: Canadian and International Perspectives, eds. Dawn A. Russell and David L. VanderZwaag (Leiden: Martinus Nijhoff, 2010), chapter 8. 60  Ibid., 188. 61  Copy on file with the author. 62  A listing decision under Canada’s Species at Risk Act is not expected before 2014. EnglerPalma et al., “Sustaining American Eels,” 163. 63  The United States Fish and Wildlife Service through a settlement agreement has agreed to review the status of the American eel on or before September 30, 2015 and submit to the Federal Register a 12-month finding as to whether listing the eel as a threatened or endangered species is warranted. See Centre for Environmental Science Accuracy and Liability in Ken Salazar, Dan Ashu, and the United States Fish and Wildlife Service, Case No. 1:12-cv-1311-EGS, Stipulated Settlement Agreement, U.S. Dist. Ct. D.C. (April 24, 2013).

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facilitating scientific assessment and monitoring,64 or should harmonization of management measures also be addressed?65 ii Considering Broader Regional Cooperation Developing broad regional cooperation in studying and conserving the American eel remains a major challenge. To date the species has not garnered a high public profile. No existing forum exists for fostering cooperation over the wide geographical distribution of the eel. Suggestions by academics and others to establish a regional conservation organization, for example, an International Northwest Atlantic Eel Council, have not been heeded.66 A promising “window of opportunity” for facilitating inter-regional cooperation does, however, loom on the horizon. The Sargasso Sea Alliance is proposing adoption of the Hamilton Declaration on the Collaboration for Conservation of the Sargasso Sea.67 The Declaration is to be signed by ministers of about a dozen governments at a meeting in Bermuda in March 2014, and it will establish an international Sargasso Sea Commission.68 Such a Commission might play a leadership role in addressing American eel conservation. For example, the Commission might establish an American eel task force or working group to facilitate scientific cooperation and management discussions. Negotiation of an American eel agreement, memorandum of understanding or conservation strategy might even be facilitated under the auspices of the Commission.69 A further possible route to enhancing broad cooperation in sustaining American eels would be through the Convention on the Conservation of Migratory Species of Wild Animals (CMS).70 The Convention encourages the 64  The Atlantic States Marine Fisheries Commission has already identified the desirability of undertaking cooperative American eel assessments between Canada and the U.S. in light of the stock’s panmictic nature. ASMFC, “ASMFC Stock Assessment Overview: American Eel” (May 2012), 5. 65  Given the high market demand for glass eel and the potential high impacts of the fishery, a common, precautionary approach to the regulation of glass eel harvesting might be priority. Engler-Palma et al., “Sustaining American Eels,” 168. 66  A SMFC, “Stock Assessment Report,” 18–19, and Engler-Palma, “Sustaining American Eels,” 168. 67  David Freestone, “Leadership on Sargasso Sea Conservation Begins in Bermuda,” The Daily Catch, November 8, 2013, http://www.theterramarproject.org/ (last accessed December 12, 2013). 68  Ibid. 69  Engler-Palma, “Sustaining American Eels,” 168. 70  June 23, 1979, 1651 U.N.T.S. 333.

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conclusion of new agreements among range states of migratory species.71 Although neither Canada nor the United States is a party to the CMS,72 the Convention allows states to join subsidiary agreements even without being party to the Convention.73 A key challenge of this route would be garnering political support for addressing American eel under the Convention. Given that the European eel is also known to spawn in the Sargasso Sea, a broader agreement for the conservation of both American and European eel populations might also be considered.74 3

Atlantic Sturgeon

A Scientific Coordinates The Atlantic sturgeon (Acipenser oxyrinchus), a member of one of the oldest groups of living fishes,75 is considered an anadromous species having a wide distribution. The Atlantic sturgeon spawns in freshwater, but resides and matures in marine waters.76 The sturgeon ranges from Labrador, Canada to Cape Canaveral, Florida.77 Atlantic sturgeon are known to undertake extensive migrations with considerable mixing of populations in the ocean. DNA analysis suggests that aggregations of Atlantic sturgeon in the Minas Basin of the Bay of Fundy consist of over 60% from the Saint John River (Canada), with a 34–36% contribution from the Kennebec River, Maine, about 1–2% from the Hudson River, New York, and less than 1% from the James River in Virginia.78 The winter aggregation off Virginia has been found to consist of sturgeon populations from the St. Lawrence (2.3%), Saint John (2.3%), Hudson (41.9%), Delaware (23.2%) 71  Ibid., Article IV. Such agreements may be legally binding or non-binding. 72  C MS, “Parties to the Convention on the Conservation of Migratory Species of Wild Animals and its Agreements at 1 October 2013,” http://www.cms.int/en/parties-rangestates/ (last accessed November 11, 2013). 73  C MS, Article V(2). 74  Engler-Palma, “Sustaining American Eels,” 169. 75  C OSEWIC, Assessment and Status Report on the Atlantic Sturgeon (Acipenser oxyrinchus) in Canada (Ottawa: COSEWIC, 2011), iv. 76  Ibid. 77  Kim Damon-Randall, Mary Colligan and Julie Crocker, Composition of Atlantic Sturgeon in Rivers, Estuaries and in Marine Waters, NOAA Fisheries Service, Protected Resources Division (February 2013), 2. 78  Richard Apostle et al., “Sustaining Atlantic Sturgeon: Stitching a Stronger Scientific and Governance Net,” Journal of International Wildlife Law & Policy 16 (2013): 170, 178.

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and other rivers (30.3%).79 While mixing in coastal waters, Atlantic sturgeon, according to tagging studies, return to their natal rivers to spawn.80 Scientists have identified numerous threats to the Atlantic sturgeon. Those threats include dams, and habitat degradations, for example, from clear-­cutting and agricultural practices, pollution, and poor water quality.81 Some mortality in tidal power turbines has occurred.82 Bycatch in fisheries using gillnets and otter trawls is estimated to be quite high. Mortality rates in gillnet gear are estimated to be about 20% compared to the generally lower rate in otter trawl gears at about 5%.83 Climate change impacts are also a concern. Rising water temperatures possibly affect water quality and fish distributions, and saltwater intrusion into rivers may restrict sturgeon spawning and rearing habitat.84 Because the Atlantic sturgeon is a slow-growing, late-maturing fish with population viability highly uncertain in light of the various threats, the species is considered to be at risk. The Committee on the Status of Endangered Wildlife in Canada has assessed the St. Lawrence and Maritime populations to be threatened85 although a listing decision under Canada’s Species at Risk Act has yet to be taken.86 In the United States, four distinct population segments (DPSs) have been listed under the Endangered Species Act as endangered (New York Bight, Chesapeake Bay, Carolina and South Atlantic) and the Gulf of Maine DPS has been listed as threatened.87 Many scientific uncertainties continue to surround the Atlantic sturgeon. A high degree of uncertainty remains on the frequency of sturgeon spawning and their exact spawning locations.88 Population abundance is difficult to

79  Ibid. 80  Greene et al., “Atlantic Coast Diadromous Fish Habitat,” chapter 8, 198–199. 81  Ibid., 237. 82  The Anapololis Tidal Generating Station in Nova Scotia is a known source of mortality but the number of individual Atlantic sturgeon reported to be killed each year is low (less than 5). Canada Department of Fisheries and Oceans (DFO), Evaluation of Atlantic Sturgeon (Acipenser oxyrinchus) from the Bay of Fundy Population to Infer a CITES NonDetriment Finding, DFO Can. Sci. Advis. Sec. Sci. Advis. Rep. 2013/047 (2013), 5. 83  A SMFC, “Atlantic Coast Diadromous Fish Habitat,” 129. 84  Northeast Marine Fisheries Service, Northeast Region, Endangered Species Act Section 7 Consultation Biological Opinion (Draft, May 20, 2013), available at http://www.nero.noaa. gov/mediacenter/2013/05/draft_nero_batched.pdf. 85  C OSEWIC, “Assessment and Status Report on Atlantic Sturgeon,” xi. 86  Apostle et al., “Sustaining Atlantic Sturgeon,” 191. 87  The final rule became effective on April 6, 2012. 77 FR 5880, and 77 FR 5914. 88  Greene et al., “Atlantic Coast Diadromous Fish Habitat,” 217.

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assess and reliable population assessments are lacking.89 Little is known about the habitat use of adult Atlantic sturgeon in marine waters.90 Documentation of Atlantic sturgeon bycatch in fisheries and their mortality rate is also quite limited.91 B International Legal Coordinates Two global agreements are especially relevant to Atlantic sturgeon conservation: UNCLOS and CITES. The Law of the Sea Convention specifically sets out conservation responsibilities for anadromous species, such as the sturgeon. The Convention on International Trade in Endangered Species has sought to control trade in sturgeon meat and caviar and to encourage international cooperation in managing shared sturgeon stocks. i UNCLOS Article 66 of UNCLOS establishes the overall international legal framework for managing anadromous stocks, such as the Atlantic sturgeon. States in whose rivers anadromous stocks originate have the primary interest in and responsibility for such stocks.92 The state of origin of anadromous stocks must ensure their conservation by the setting of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone.93 When anadromous stocks migrate into or through the waters of a state other than the state of origin, such a state must cooperate with the state of origin regarding the conservation and management of such stocks.94 ii CITES With Atlantic sturgeon listed on Appendix II of CITES, any trade in the fish or its products is subject to strict regulation. Appendix II listing, while allowing commercial trade, subjects such transactions to export permitting requirements. An export permit must be obtained from the state of export verifying 89  Troy C. Nelson et al., “Research Tools to Investigate Movements, Migrations, and Life History of Sturgeons (Acipenseridue) with an Emphasis on Marine-oriented Populations,” PLoS ONE 8(8) (August 2013): 1, 2, and COSEWIC, “Assessment and Status Report on Atlantic sturgeon,” 23. 90  Greene et al., “Atlantic Coast Diadromous Fish Habitat,” 234. 91  A SMFC, Amendment 1 to the Interstate Fishery Management Plan for Atlantic Sturgeon, Fishery Management Report No. 31 (July 1998), 10. 92  U NCLOS, Article 66(1). 93  U NCLOS, Article 66(2). 94  U NCLOS, Article 66(4).

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that the export will not be detrimental to the species’ survival and that the species was obtained legally.95 A CITES Resolution on the Conservation and Trade in Sturgeons and Paddlefish, first adopted in 2002 and further amended in March 2013,96 further develops conservation and trade responsibilities. The Resolution urges range states to enter into regional agreements to ensure proper management and sustainable utilization. The Resolution also recommends that the export of caviar from shared wild stocks of sturgeon be prohibited unless an export quota has been agreed to, and a regional conservation strategy and monitoring regime has been adopted.97 Finally, the Resolution calls upon range states of sturgeon to collaborate in the development and implementation of strategies and action plans for conservation and management of shared stocks. C Governance Challenges While substantial and complex national regulatory regimes already apply to Atlantic sturgeon,98 many national management challenges remain. Removal of dams where feasible, and ensuring fish passage facilities to aid the upstream and downstream passage of Atlantic sturgeon, are ongoing priorities.99 Broader habitat restoration is also especially important.100 Additional data regarding sturgeon use of riverine and estuarine environments is needed, and possible imposition of dredging restrictions to avoid spawning and nursery habitats must be considered.101 Canada has yet to decide on whether to list Atlantic 95  C ITES, Article IV(2). 96  C ITES, Resolution Conf. 12.7 (Rev. COP 16), http://www.cites.org/eng/res/index.php (last accessed November 13, 2013). 97  Quotas do not have to be established for specimens from capture-breeding or aquaculture operations. Ibid., fn. 3. 98  For a detailed description of the national legal frameworks including a commercial moratorium on harvesting Atlantic sturgeon in the United States and strictly regulated fisheries in Canada’s St. Lawrence and Saint John Rivers, see Apostle et al., “Sustaining Atlantic Sturgeon,” 187–195. 99  Greene et al., “Atlantic Coast Diadromous Fish Habitat,” chapter 11, 453. 100  For recent U.S. initiatives to address habitat restorations, see NOAA Fisheries, “NOAA Fisheries announces $6.6 million in funding for habitat restoration in Maine, Massachusetts, Maryland and Virginia,” Press Release, October 22, 2013, http://www.nmfs .noaa.gov/mediacenter/2013/10/22_10_habitatgrants_ner.html (last accessed November 12, 2013); “NOAA Fisheries announces $8 million in funding for habitat restoration in southeastern states,” Press Release, October 22, 2013, http://www.nmfs.noaa.gov/ mediacenter/2013/10/22_10_habitatgrants_ser.html (last accessed November 12, 2013). 101  National Marine Fisheries Services, Northeast Region, “Endangered Species Act Biological Opinion,” 148.

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sturgeon under the Species at Risk Act (SARA).102 If listing does occur, a recovery strategy and one or more action plans will have to be developed. Bilateral cooperative arrangements specific to Atlantic sturgeon have yet to be forged. While Canada remains interested in possible export of specimens and products of wild Atlantic sturgeon captured from the Saint John River,103 Canada and the United States have not been able to finalize a draft regional conservation and monitory strategy.104 In the Gulf of Maine region, the Species at Risk Working Group of the Canada-U.S. Transboundary Resources Steering Committee has not addressed joint recovery of sturgeon, but has simply exchanged information on the Atlantic sturgeon listing processes.105 4 Conclusion While scientific information is limited in many areas relating to the populations of American eel and Atlantic sturgeon, scientific understandings that have emerged do offer management implications. The broad distribution and panmictic nature of the American eel, along with its serious declines, suggests the need for developing bilateral and inter-regional cooperative arrangements. The endangered or threatened status of Atlantic sturgeon populations and their extensive migrations suggest the need for strengthening Canada-U.S. bilateral cooperation in scientific assessments and addressing management issues. A key reality that may be drawn from the two case studies provided in this chapter is the fact that “sound science” does not easily translate into better management. International cooperation has lagged for both species in part due to their low public profile and limited political will to develop new bilateral agreements or arrangements. Socio-economic factors also may hinder transboundary cooperation, as appears to be the case for Atlantic sturgeon. In that case, conclusion of a bilateral conservation strategy has been difficult because of the possibility of encouraging trade in a species that is listed as endangered/threatened in the United States.106 International legal coordinates continue to offer directions for bilateral and regional management. The Law of the Sea Convention calls for a bilateral agreement where a catadromous species migrate across EEZs, and the 102   S .C. 2002, c. 29. 103  D FO, “Evaluation of Atlantic Sturgeon,” 1. 104  Nor has the draft been publicly released. Apostle et al., “Sustaining Atlantic Sturgeon,” 186. 105  Ibid. 106  Apostle et al., “Sustaining Atlantic Sturgeon,” 196.

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Convention requires international cooperation in conserving and managing migratory anadromous stocks. Furthermore, the call for embracing ecosystem and precautionary approaches to fisheries management continues to emanate from many legal sources.107 It remains to be seen how cooperative management arrangements to address Atlantic marine species at risk will evolve, and whether they will be sufficient to prevent the loss of threatened or endangered populations. Common listing of marine species at risk under national legislation may be one key factor in catalyzing greater transboundary cooperation. Taking seriously international ocean law and policy responsibilities is another.108 One thing is certain. While Canada and the United States are good “saltwater neighbors,”109 they have yet to become “great neighbors” in managing Atlantic marine species at risk.

107  Dawn A. Russell and David L. VanderZwaag, “Ecosystem and Precautionary Approaches to International Fisheries Governance: Beacons of Hope, Seas of Confusion and Illusion” in Recasting Transboundary Fisheries Management, eds. Russell and VanderZwaag (2010), chapter 3. 108  For a recent critical review of how Canada has been living up to its international responsibilities in protecting marine biodiversity, see David L. VanderZwaag, et al., “Canada’s International and National Commitments to Sustain Marine Biodiversity,” Environmental Reviews 20 (2012): 312. 109  Ted L. McDorman, Salt Water Neighbours: International Ocean Law Relations between the United States and Canada (Oxford, U.K. and Toronto: Oxford University Press, 2009).

Chapter 6

Implementing the Nagoya Protocol in Pacific Island Countries Justin Rose ­

Introduction The Pacific island region is comprised of a vast expanse of more than 38 million square kilometres, a mere two per cent of which is land that is divided among approximately 30,000 islands. Within this region of island nations there is a diverse array of societies and cultures, as well as a variety of legal systems; fourteen independent countries and eight dependent territories governed by the United States, France, New Zealand, or the United Kingdom, are located here.1 Samoa was the first Pacific island country to gain independence in 1962; the most recent was the Republic of Palau in 1994. The Pacific island region is often considered as three sub-regions; Melanesia, Micronesia and Polynesia. Geographically, Melanesia (Papua New Guinea, Solomon Islands, Vanuatu, Fiji and New Caledonia) is characterized by large islands with substantial forest and mineral resources. Micronesia, a name meaning “small islands,” comprises countries and territories (Kiribati, Republic of the Marshall Islands, Federated States of Micronesia, or FSM, Palau, Guam, Commonwealth of the Northern Mariana Islands and Nauru) with comparatively tiny areas of land and vast marine resources. Some Polynesian countries, such as Cook Islands, French Polynesia, Niue, Tokelau and Tuvalu, have similarly small land resources compared to those in Micronesia, whereas others, such as Samoa and Tonga, possess substantial terrestrial and marine resources, although the land areas are not on the scale of the Melanesian nations.

* PhD (Maq) BA/LLB (Hons) (ANU), Adjunct Associate Professor, School of Law, University of the South Pacific. 1  For the purposes of this chapter the 14 independent Pacific island countries are: Cook Islands, Federated States of Micronesia (FSM), Fiji, Kiribati, Republic of the Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. The 8 dependent Pacific island territories are: American Samoa, French Polynesia, Guam, New Caledonia, Commonwealth of the Northern Mariana Islands, Pitcairn Islands, Tokelau, and Wallis and Futuna Islands.

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Even though the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (the Nagoya Protocol)2 is a relatively new innovation in law, the matters that are its subject have been known to Pacific peoples for millennia. “The exchange of seeds, plants, animals and microbial cultures for a wide range of uses, including production of food, medicines, fibres etc . . . . between partners communicating or negotiating in mutual trust has been a practice of humankind since time immemorial.”3 Traditionally, knowledge was frequently exchanged along with genetic material. Indeed in many instances it may be difficult to distinguish between the two. While both the knowledge and the material were highly valued, where the exchanges were upon equitable terms, negotiated and agreed via customary norms and processes, all parties benefitted.4 In the Pacific as elsewhere, however, exchanges of genetic material and associated knowledge during the colonial period accelerated greatly in a manner that overwhelmingly benefitted the appropriators and not the providers. The inequity of colonial-era misappropriations of genetic material and associated knowledge is among the central reasons for modern disparities of wealth among nations. ABS negotiations and the Nagoya Protocol are situated at a crossroads not only of conflicting interpretations and attitudes regarding historical events, experiences and trends, but also of clashing cultural concepts including knowledge systems, and . . . dire asymmetries of political power, legal recognition and a widening economic gap between haves and have-nots. It is therefore not at all surprising that the negotiations were long and difficult. It is also not surprising that the Nagoya Protocol is seen as a work in progress rather than the final word on the issue of ABS. Which paths will it take? That is the question now.5

2  Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, UN Doc. UNEP/CBD/COP/DEC/X/1, not in force. 3  Harmut Meyer, Joji Carino, Chee Yoke Ling, Michael Frein, Francois Meinberg, Christine von Weizsacker, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity: Background and Analysis (Third World Network: Kuala Lumpur, 2013) 7. 4  Miranda Forsyth, “Do You Want It Giftwrapped? Protecting Traditional Knowledge in Pacific Island Countries,” in Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development, eds. Peter Drahos and Susy Frankel (ANU E Press: Canberra, 2012), 172. 5  Meyer et al., Nagoya Protocol Background and Analysis, 2.

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The Nagoya Protocol aims to achieve the fair and equitable sharing of benefits arising from the utilization of genetic resources by enabling appropriate access to genetic resources and by transferring relevant technologies and appropriate funding. This process and related activities are frequently referred to as “access and benefit sharing,” or “ABS.” It relates most directly to the CBD’s third objective, but it also contributes to all three of those objectives. All Pacific island countries are States’ Party to the Convention on Biological Diversity (CBD), which since 1993 has provided a legal foundation for sovereign control of and access to genetic resources and consequent benefit-sharing between providers and users of those genetic resources.6 “Prior to the signature of the Convention on Biological Diversity, genetic resources were regarded as freely accessible without the users’ obligation to share benefits with provider countries. The CBD changed that perception by confirming that these resources lay under the territorial sovereignty of individual countries where they were found.”7 The CBD also links access to genetic resources to the prior informed consent (PIC) of the providing Party, if requested, and to mutually agreed terms (MAT).8 To date no Pacific island country has joined the growing number of CBD Parties that have enacted domestic legislation regulating access and benefit sharing of genetic resources within their jurisdiction.9 There are now signs that the long-awaited finalization of the text of the Nagoya Protocol will bring the necessary attention to ABS issues, as well as related capacity-building, to enable Pacific island countries to establish effective and efficient ABS regimes in policy and law. This chapter focuses on the experiences and plans of the two Pacific countries that have ratified the Nagoya Protocol to date—the Federated States of Micronesia (FSM) and the Fiji Islands. The FSM Government has commenced implementing the Nagoya Protocol by undertaking a comprehensive national 6  Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, entered into force, 29 December 1993. 7  Thomas Greiber, Sonia Peña Moreno, Mattias Åhrén, Jimena Nieto Carrasco, Evanson Chege Kamau, Jorge Cabrera Medaglia, Maria Julia Oliva, Frederic Perron-Welch, Natasha Ali and China Williams, An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing (Gland: IUCN, 2012), 94 (citing Nagoya Protocol, Preamble, and CBD, Articles 3 and 15(1)). 8  Nagoya Protocol, Articles 15(4)–(5). 9  Jorge Cabrera Medaglia, Frederic Perron-Welch and Olivier Rukundo, Overview of National and Regional Measures on Access to Genetic Resources and Benefit-Sharing: Challenges and Opportunities in Implementing the Nagoya Protocol, Centre for International Sustainable Development Law, 2d ed. July 2012 (overview of national legislation on ABS from a range of countries).

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consultation process resulting in the drafting of a Gap Analysis identifying priority areas for institutional and technical capacity development and a draft FSM Interim ABS Policy. Among the most significant findings of the FSM Gap Analysis is that due to the division of authority between the national and state governments in the FSM Constitution, each of the FSM’s four states will need to put in place legal and policy frameworks for access and benefit sharing of genetic resources, while the FSM national Government will fulfill a coordinating role. FSM stakeholders also have commenced preparing an Interim FSM ABS Policy that will guide decision-making until more permanent institutional arrangements are agreed upon. Fiji’s planned approach, supported by a range of donors including the Global Environment Facility (GEF) as well as private sector partners and the University of the South Pacific (USP), is to link implementation of the Nagoya Protocol with the Fiji Locally Managed Marine Protected Area network (FLMMA).10 Over the past two decades FLMMA has successfully brought together dozens of Fijian local communities in a network that supports their efforts in establishing and managing marine protected areas, and may have the potential to facilitate sustainable livelihood initiatives including marine bio-prospecting. The Nagoya Protocol leaves many important aspects to be determined by Parties according to their domestic legislation. Accordingly, implementing the Nagoya Protocol is a complex undertaking requiring a balancing of interests and establishment of various administrative processes. In the Pacific island region however, the nature of the Nagoya Protocol’s subject matter means that its implementation also will be characterized by social and legal complexity. A good example is the need in each circumstance of approved access to identify with certainty the owners or right-holders of particular genetic resource. In the Pacific, matters of natural resource ownership and sovereignty are very often contested, and most Pacific jurisdictions recognize some form of customary tenure over terrestrial and inshore marine spaces within their control, greatly empowering the landowning groups thus recognized. The ongoing importance of customary tenure is linked to a persistence of customary laws and norms more generally, although this legal pluralism manifests very differently between, and often within, each Pacific island country. The implication for implementing the Nagoya Protocol is to anticipate the likelihood 10  G EF Council, Progress Report On The Nagoya Protocol Implementation Fund, GEF/C.45/Inf. 07, 8 October 8 2013; GEF Project Identification Form, Discovering nature-based products and building capacities for the application of the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing in Fiji, Global Environment Facility, August 2012.

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of contested claims over genetic resources, as well as the need to develop ABS protocols and processes that may need to account for international, national and customary legal imperatives.

Core Elements of the Nagoya Protocol

In the context of the Nagoya Protocol, “genetic resources” means any genetic material of actual or potential value, and “genetic material” means any material of plant, animal, microbial or other origin containing functional units of heredity.11 To “utilize” genetic resources in these contexts is to conduct research and development on the genetic or biochemical composition of the resources, including through the application of biotechnology, as defined in Article 2 of the Convention.12 Importantly, “derivatives” are also included within the scope of the Protocol, which defines a derivative as “a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.”13 The Nagoya Protocol seeks a balance between the interests of users of genetic resources (typically the institutions and individuals who engage in biotechnological research and related activities using genetic material) with the needs and interests of the providers of genetic resources. In simple terms, users are typically interested in having a set of transparent rules and processes to follow when seeking access to genetic resources in a given jurisdiction. Providers, who sometimes include members of local and indigenous communities, are entitled to negotiate and receive a fair and equitable share of benefits that might flow from resource utilization. An important aspect of the Nagoya Protocol, particularly in Pacific contexts, is that it also encompasses traditional knowledge associated with genetic resources that are accessed and utilized. An example of this traditional knowledge would be that related to plants used in traditional medicine. In terms of institutional arrangements, Parties to the Nagoya Protocol must designate both a national focal point (NFP) and one or more competent national authorities (CNAs). A single agency may perform the role of both a NFP and a CNA, the roles of which are set out in Article 13. NFPs are responsible for liaison with the CBD Secretariat, as well as providing information for 11  C BD, Article 2. 12  Nagoya Protocol, Article 2. 13  Ibid., Article 2(e).

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applicants seeking access to genetic resources and related traditional knowledge. This process may include information on procedures for obtaining prior informed consent and establishing mutually agreed terms, including benefitsharing. NFPs also provide information on CNAs, as well as relevant indigenous and local communities and other relevant stakeholders. CNAs are responsible for advising on requirements for obtaining PIC and MAT, for granting access or facilitating the granting of access by resource providers, and for issuing written evidence that access requirements have been met.14 It is not compulsory for Parties to require PIC before granting access, but if they choose to do so, it is the CNAs that are responsible for providing information regarding the process by which this must be done. MATs are legally binding agreements setting out conditions of access and benefit-sharing that are negotiated between users and the providers, and possibly involving other relevant stakeholders. MATs may:

• Identify the agreed applicable law under which the agreement is to be understood and administered; • Include a dispute settlement clause, including options for alternative dispute resolution; • Identify the jurisdiction under which the dispute resolution process is to be conducted; • Include detailed terms on benefit-sharing including intellectual property (IP) rights; • Ensure Indigenous and local communities’ PIC or approval is granted upon mutually agreed terms; • Include provisions setting out rules or protocols for any subsequent thirdparty use; and • Include terms regulating changes in intended use, if applicable.15 Importantly for a federal jurisdiction such as FSM, where a Party designates more than one CNA, it must convey to the Secretariat relevant information on the respective responsibilities among its various CNAs. Where applicable, such information must at a minimum specify the geographical or sectoral division

14  Ibid., Article 13. 15  Geoff Burton and Jorge Cabrera et al., ABS Management Tool: Best Practice Standard and Handbook for Implementing Genetic Resource Access and Benefit-Sharing Activities, Swiss Federal Department of Economic Affairs, updated May 2012, 29 (citing Nagoya Protocol, Articles 5, 6, 7 and 18).

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of responsibilities among the various CNAs, so that users are able to understand which CNA will be responsible for the genetic resources sought.16 To summarize the above, Parties to the Protocol must decide whether to require PIC for access and use of their genetic resources and use of any associated traditional knowledge. If they do choose to require PIC, Parties must establish clear and fair processes setting out how it can be obtained by users, and also how MATs can be reached. Decisions to refuse or grant access in specific instances are accompanied by the issuing of permits or certificates of compliance, and public notifications on the international Access and Benefit Sharing Clearinghouse.17 Article 5.1 describes core obligations of the Parties with respect to the centrally important aspect of benefit sharing: [B]enefits arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms. Article 5.2 empowers (without strictly mandating) Parties to protect the interests of indigenous and local communities, in the following terms: Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms. Article 5.5 provides that benefits from the use of traditional knowledge associated with genetic resources subject to MATs are shared with the indigenous and local communities that provided the knowledge: Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of 16  Nagoya Protocol, Article 13. 17  Nagoya Protocol, Article 14.

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t­ raditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be upon mutually agreed terms. Article 5.4 makes it clear that benefits may be monetary or non-monetary, and there is an annex to the Protocol providing a non-exhaustive indicative list of possible benefits. A final core element that Parties are required to address in their administrative or legal systems implementing the Nagoya Protocol is that of compliance and monitoring. Articles 15, 16, 17 and 18 are most relevant to the issue. In the context of the Nagoya Protocol, compliance means meeting the requirements and obligations of national (domestic) ABS legislative, administrative, or policy measures of both the provider and user countries. In both cases, compliance also requires meeting the requirements and obligations documented in MATs. Compliance is thus addressed at two levels: compliance with the MATs, and compliance with any applicable national law, policy or administrative measures on ABS. Parties regulating users within their jurisdictions are obliged to take action to support compliance with the ABS requirements of providers, including establishing one or more checkpoints to monitor or enhance transparency in the use of genetic resources. Article 17.1 of the Nagoya Protocol specifies obligations of Parties regarding the designation of checkpoints to assist in monitoring the utilization of genetic resources. Examples of possible checkpoints include customs authorities, patent offices, market approval offices, research funding agencies, and indigenous and local community representatives. Other aspects of Article 17 relate to the production and issuance of internationally recognized certificates of compliance as mechanisms of monitoring compliance.

Implementing the Nagoya Protocol in Fiji

Since 1996, stakeholders centrally concerned with the sustainable management of Fiji’s marine environment have linked ABS with successful community-based conservation initiatives. The original site from which FLMMA arose was also pivotal in the original development of ABS agreements and programs in Fiji. FLMMA now includes approximately 100 sites throughout the country wherein local communities are engaged in a process of sustainably managing their inshore marine resources. FLMMA received the Equator Initiative award at the World Summit for Sustainable Development in Johannesburg in 2002

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for its “outstanding community efforts for poverty reduction and biodiversity conservation.”18 The Institute of Applied Sciences (IAS) at USP has been central to FLMMA’s achievement. Since the late-1960s, scientists at USP have undertaken research aimed at isolating products from plants used for medicinal purposes in Fiji.19 This work has been hampered by a lack of capacity and a reliance on international contacts. Also, [a] number of overseas researchers made large-scale collections of plant and marine organisms in Fiji. Usually ostensibly for “academic purposes,” these samples often ended up being tested by large companies for possible commercial development. In most cases, this work was done with minimal, if any, USP involvement.20 In 1996, USP IAS designed and received funding for a project designed to engage local level stakeholders in sustainably managing their resources, linked (at least in its early stages) to a bio-prospecting partnership that would assist by providing funds both as incentives for citizens to participate in conservation, as well as direct investments into conservation programs.21 USP IAS negotiated approval for the program with both national and provincial government agencies, and approached the concerned communities as the resource owners and stewards, following strictly the applicable traditional protocols.22 Upon receiving consensus support from local stakeholders a project combining bio-­prospecting with community-based marine resource management commenced in eight villages in the area of Verata, on Viti Levu in Fiji in 1997. The community-oriented conservation aspect of this project proved to be a catalyst for a dramatic re-engagement of Fiji’s communities and traditional leaders in local marine conservation. One commentator states that:

18   United Nations Development Programme, Fiji Locally-Managed Marine Area Network, Fiji, Equator Initiative Case Study Series (UNDP: New York, 2012). 19  William Aalsbersberg, Isoa Korovulavula, John Parks and Diane Russell, The Role of a Fijian Community in a Bioprospecting Project, Secretariat of the Convention on Biological Diversity ABS Case Studies, 3, available at 
https://www.cbd.int/doc/case-studies/abs/ cs-abs-fj.pdf (accessed 20 December 2013). 20  Ibid. 21  Ibid., 4. 22  Ibid., 4–5.

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[FLMMA] is successful both in the way that it has replicated its work and lessons learned regionally, and that at the Fiji level it has since its inception grown to include communities in six districts and cover 10% of the inshore marine area of Fiji. According to recent monitoring, the involvement of communities in the network has led to increases in the number and size of clams, crabs, and other species harvested adjacent to tabu areas, where fishing is prohibited. Household incomes are estimated to have increased by as much as 35% over three years and catches have tripled.23 FLMMA was officially formed in 2001, a year after the international the launch of the Locally Managed Marine Areas network (LMMA). The formation of FLMMA followed a period of preparatory discussion among practitioners and stakeholders from several countries in Asia and the Pacific.24 The aims of both FLMMA and LMMA are, in essence, to share experiences and information among network members with the aim of achieving consistent success in local level marine management leading to both healthy inshore marine ecosystems and benefits for the coastal communities that depend upon them.25 LMMA links around 200 sites in Fiji and more than 400 throughout the Asia-Pacific. The bio-prospecting aspect of the Verata project proceeded well for a few years, but it lapsed due mainly to a waning in the interests of the international partner, the Strathclyde Institute of Drug Research (SIDR) at Strathclyde University in Glasgow, Scotland. SIDR agreed to pay a fee of $200 per sample, which for the duration of the arrangement delivered a clear benefit to the participating communities.26 While USP did not benefit from technical capacitybuilding under this arrangement, an institutional reform occurred during this phase—the development of the 1999 Fiji ABS Policy.27 Despite the temporary nature of this experiment with bio-prospecting linked to community-based resource management, Professor Bill Aalbersberg, Director of USP IAS, commented positively in 1999:

23  Jenny Bryant-Tokalau, “From Summitry to Panarchy: Issues of Global, Regional and Indigenous Environmental Governance in the Pacific,” Borderlands 7.3 (2008), 21. 24  L MMA website, http://www.lmmanetwork.org/whoweare/history (accessed 24 December 2013). 25  Ibid. 26  Aalsbersberg et al., Role of a Fijian Community, 5–6. 27  G EF Project Identification Form, Discovering nature-based products, 4.

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Innovative ways to obtain the financial, social and intellectual capital for development that can conserve resources are sorely needed. If bioprospecting is carried out respectfully and judiciously, the benefits can be solid, and the risks minimal. Linked to community resource management and tied into other enterprise options, community bioprospecting can provide an important catalyst for sustainable rural development.28 By 2013, with both renewed interest in bio-prospecting among international industry participants as well as the Nagoya Protocol raising the profile of ABS issues among governments and civil society, USP IAS was again playing a central role in the development of bio-prospecting in Fiji. USP’s recently-opened Centre for Drug Discovery and Conservation and the Fiji Government’s Department of Environment are the primary executing agencies of a GEF grant of US$1 million, which aims to “realize the potential of genetic resources in Fiji to generate tangible economic benefits in the form of business, employment and capacity building, through the discovery and development of new medicines or agrochemicals, thereby providing a rationale for the preservation of the biological resources that contain the genetic material.”29 Other participating project partners include Georgia Institute of Technology, Scripps Institute of Oceanography (University of California), University of North Carolina, National Institutes of Health (US), and Bristol Myers Squibb Pty Ltd.30 Specific aims of the project include strengthening local technical capacity in Fiji through the delivery of state of the art hardware, software and knowledge to local partners; the training of at least 10 Fijian scientists in bio-discovery techniques; delivery of at least 25 percent of net income from bio-prospecting to the FLMMA Trust Fund; and institutionalizing of Nagoya Protocol obligations through policy and legislative reform by the Government of Fiji.31 In summary, Fiji stakeholders concerned with bio-prospecting and marine conservation have received substantial GEF backing to revisit the concept, first attempted in the late 1990s, of linking ABS agreements to local conservation initiatives and local capacity-building. Strong multi-sector, multi-level partnerships have been formed in support of the program among local and international academic institutions, national government agencies and local communities. The strengths and weaknesses of this program are further 28  Aalsbersberg et al., Role of a Fijian Community, 19. 29  G EF Project Identification Form, Discovering nature-based products, 6. 30  Ibid., 11. 31  Ibid., 1–3.

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d­ iscussed here, following the description of FSM’s initial efforts in implementing the Nagoya Protocol.

Implementing the Nagoya Protocol in the Federated States of Micronesia

FSM has been described as the “jewel” of Pacific island biodiversity.32 Over 1,100 fish and 350 coral species inhabit the FSM’s reefs, and its exclusive economic zone (EEZ) is located in the heart of the world’s largest tuna fishery.33 “The mangrove forests of FSM are among the few remaining old growth mangrove forests in the world that are intact, if not pristine, across the country’s entire area.”34 The FSM’s terrestrial biodiversity, especially in the forests of the high islands, is also of global significance. Pohnpei’s rainforests alone have at least 110 plant species, 13 bird species, 27 tree snails, three fish and one skink that are found nowhere else in the world.35 The freshwater swamps of Kosrae and Pohnpei harbour endemic tree species, while the world’s lowest dwarf cloud forests cover their mountain peaks.36 It has been reported that the FSM has more endemic, rare, endangered and threatened plant and animal species per unit area than any other country.37 FSM’s EEZ spans almost three million square kilometers (km2) of the ­central-western Pacific Ocean. The FSM’s 607 islands occupy a total land area of 702 km2, while their associated near-shore lagoons encompass 7,218 km2. The FSM’s island types include high mountainous islands of volcanic origin, low islands of carbonate rock (atolls), islands of elevated reef rock, and the “continental” island of Yap. The 2010 Census reports that the 67 populated islands accommodated a total of 102,624 persons speaking eight indigenous languages in addition to English. The Federation comprises four highly-autonomous states: Yap, 32   The Nature Conservancy, “The Federated States of Micronesia: Jewel of Pacific Biodiversity,” in Federated States of Micronesia, Proceedings of the 2nd FSM Economic Summit (Pohnpei: FSM Government, 2000). 33  Ibid., 14; Patrick Colin and Charles Arneson, Tropical Pacific Invertebrates (Los Angeles: Coral Reef Press, 1995), 19. 34  Nature Conservancy, “Jewel of Pacific Biodiversity,” 168; see also Michael Gawel, The Federated States of Micronesia State of the Environment Report (Apia: SPREP, 1993), 9. 35  Nature Conservancy, “Jewel of Pacific Biodiversity,” 167. 36  Craig Whitesell, Vegetation Survey of Kosrae, Federated States of Micronesia, US Forest Service PSW-17 (Hawaii: USDA, 1986), 6. 37  Nature Conservancy, “Jewel of Pacific Biodiversity,” 166.

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119.6 km2, 11,376 persons; Chuuk, 127.4 km2, 48,651 persons; Pohnpei, 343.7 km2, 35,981 persons; and, Kosrae, 111.8 km2, 6,616 persons.38 Diseases introduced by visiting whalers had decimated FSM populations from the beginning of the nineteenth century. Kosrae’s population, for example, reached a low of about 300 individuals in the 1880s, less than five percent of conservatively estimated pre-contact numbers.39 Micronesian populations recovered in time, however, with most exceeding their pre-colonial numbers during the final quarter of the twentieth century. The nation state of FSM was created in the mid-1980s through the joining of four societies that had, since the conclusion of World War II, been administered by the United States as districts of the former Trust Territory of the Pacific Islands. FSM’s founding fathers consciously and intentionally drafted a National Constitution allocating a high degree of autonomy to the four states.40 The aim of this approach was to create a country whose national government was sufficiently empowered to represent its citizens in international contexts, while preserving most authority to the states, thus allowing them to determine their own policies, laws and programs on most issues.41 This constitutional history has direct bearing upon how FSM can implement the Nagoya Protocol in that the constitutional division of authority in the country means state governments are the primary custodians of matters relating to environmental conservation and natural resource management within their jurisdictions.42 While the FSM Constitution empowers the national Government to ratify treaties, ratifications do not expand or alter national legislative capacities, i.e. ratification of the Nagoya Protocol does not empower the national Government to legislate to implement the Protocol’s requirements where such authority resides with the states.43 In January 2013, the FSM ratified the Nagoya Protocol. A review and consultation process pursuant to its implementation was undertaken in the 38  Government of the Federated States of Micronesia, 2010 Census results, available at http://www.sboc.fm/index.php?id1=Vm0xMFlWWXhWWGhTYmxKV1YwZFNUMVpzV21 GVk1WbDNXa2M1VmxKdGVGbGFWVnBoVlVaV1ZVMUVhejA9 (accessed 24 December 2013). 39  Larry Gorenflo, “Demographic Change in Kosrae State, Federated States of Micronesia,” Pacific Studies 16 (1993), 67–118, 70 and 75. 40  Glenn Petersen, “The Federated States of Micronesia’s 1990 Constitutional Convention: Calm before the Storm?,” Contemporary Pacific 6 (1994), 337, 340. 41  Petersen, “1990 Constitutional Convention,” 342. 42  F SM Department of Resources and Development, Gap Analysis on the Implementation of the Nagoya Protocol in the Federated States of Micronesia, Policy Paper (2013), 10. 43  Ibid.

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period from February to May 2013. The outcome of this process was a fiftypage report titled Gap Analysis on the Implementation of the Nagoya Protocol in the Federated States of Micronesia (Gap Analysis).44 In preparing the Gap Analysis officers of FSM’s Department of Resources and Development and the Office of Environment and Emergency Management visited each state in the process conducting 46 meetings with more than 150 key stakeholders. The purpose of the consultation process was twofold: (1) to share information with key stakeholders about the Nagoya Protocol and the implications of FSM putting in place mechanisms to fulfill its obligations under the Protocol; and (2) to receive comments, advice and feedback from stakeholders on any ABS-related issues of concern to them, as well as to provide guidance regarding how the Nagoya Protocol might best be implemented in FSM or in specific FSM states.45 The remainder of this section summarizes key findings of the Gap Analysis, and subsequent steps taken to implement them. An initial finding of the Gap Analysis is that there is currently in FSM, with some exceptions of specific agencies of the National and Kosrae State Government, a low level of awareness of ABS issues generally, and very low level of awareness of Nagoya Protocol specifically.46 Despite this lack of awareness, many stakeholders in FSM’s states indicated high levels of concern regarding the activities of international researchers within FSM.47 These concerns typically focused on ensuring that FSM stakeholders are adequately informed about the activities of non-citizen researchers, and that there is some sharing of benefits of the research with FSM and FSM stakeholders.48 In many cases the core benefit sought by stakeholders was simply copies of the publications or other material stating the outcomes of the research.49 Upon receiving briefings and summaries of the objectives and core elements of the Nagoya Protocol, most stakeholders and all key stakeholders expressed high levels of support both for FSM’s ratification of the Nagoya Protocol and for its full and expeditious implementation in FSM. Finally, many key stakeholders emphasized strongly that the State Governments should be the ­primary

44  Ibid. 45  Ibid., 11. 46  Ibid. 47  Ibid., 20. These concerns are substantially broader than Nagoya Protocol issues and include all forms of research undertaken by non-citizens in the country. 48  Ibid., 20. 49  Ibid.

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­decision-makers in relation to regulating ABS in FSM, and specifically that each state operate their own CNAs.50 The Gap Analysis concluded that there is a substantial gulf between the current situation in FSM and a future situation in which FSM is fully compliant with the Nagoya Protocol. The related gaps fall into two broad categories: knowledge and capacity gaps, and institutional gaps.51 Somewhat obviously, to address knowledge and capacity gaps there will need to be training and capacity building addressing all of the relevant issues associated with implementing an effective national ABS regime. This line of effort might include building better local understandings of biotechnological research and it’s purposes and methods; capacities for negotiating realistically to reach equitable MATs; capacity-building in the fields of ABS policy and law (both international and domestic), as well as ABS-related intellectual property law.52 Key institutional gaps are that FSM currently has no NFP for the Nagoya Protocol, no CNAs, or any ABS checkpoints. Over coming months and years these institutions will need to be identified and commence implementing the functions required of them by the Nagoya Protocol. There is also an absence of policy on ABS, and the development of policy should precede the development of administrative or legal regimes. There is some relevant law and policy in each jurisdiction, but this is limited in scope and is not designed to address ABS obligations.53 Pohnpei State has the most comprehensive administrative and legal structures relevant to ABS, whereas Chuuk State has the least developed.54 Consistent with stakeholder feedback in all five jurisdictions, the Gap Analysis recommended that CNA responsibilities be allocated to the state governments. Not only is this recommendation probably the only option conforming to FSM’s five Constitutions, it is also consistent with the wishes and expectations of all key stakeholders.55 It was also recommended that FSM stakeholders consider prioritizing and rapidly implementing an interim national ABS Policy. An interim policy would enable substantial (if not fully complete) compliance with FSM’s Nagoya Protocol obligations within a comparatively short time period and would provide relevant offices and other stakeholders an opportunity to engage in a learning-by-doing exercise that would inform future development of more 50  Ibid., 24. 51  Ibid. 52  Ibid. 53  Ibid., 16–20. 54  Ibid., 24. 55  Ibid.

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permanent policy and law.56 Fully implementing the Nagoya Protocol in FSM will be a complex undertaking and any undue rushing of the process may result in resistance from key stakeholders, or suboptimal institutional design; an interim policy may help in avoiding these negative outcomes. In the medium to long term all five jurisdictions will need to develop and adopt Nagoya-consistent policy and administrative systems, and they will also consider developing legislation specifically addressing ABS issues. Whether this outcome requires amendments to existing researcher permitting provisions or new ABS-specific laws is an issue that stakeholders in each jurisdiction will consider more fully during coming months. It is likely that compliance, enforcement and monitoring in particular will be more effective if they are supported by ABS-specific legal provisions. It would be possible, but not necessary, for each of the four states to adopt the same or very similar ABS policies, administrative systems and laws. Consistent policy and law across all FSM’s states would assist the interests of users, and the idea of having the same or very similar laws in each jurisdiction is likely to be advocated or preferred by external experts and donors. Nevertheless, observers fully familiar with FSM’s cultural, political and legal context are aware that the disadvantages of attempting to achieve nationwide consensus may outweigh the real or perceived benefits of doing so. This is particularly the case given that there are obligations contained in the Nagoya Protocol relating to indigenous and local communities—each state has its own protocols and approaches to liaising with local communities and traditional leaders in decision-making processes.57 Finally, the Gap Analysis recommended that FSM’s future ABS policies and administrative procedures ensure that negotiation of MATs is not only a whole-of-government activity, but also one involving non-governmental organizations (NGOs).58 An advantage of involving multiple government agencies in this stage of the ABS process, as well as NGOs, is that the full spectrum of potential needs and opportunities can be properly identified. Also, NGOs in FSM and throughout the Pacific often mediate among the spheres of government and science, and the interests and perspectives of traditional and local communities.59 56  Ibid., 24–25. 57  Ibid., 25. 58  Ibid., 26. 59  Justin Rose, “Le défi de déterminer un ‘espace légal’ pour la gouvernance localisée de la biodiversité dans la région des iles du Pacifique,” in Carine David and Nadege Meyer,

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To follow up the progress made in the process of developing the Gap Analysis, the FSM Department of Resources and Development facilitated two workshops on national ABS policy and institutional development, the first in Pohnpei in August 2013 and the second in Chuuk in November 2013.60 Participants at these workshops discussed the findings of the Gap Analysis and discussed possible ways for FSM to proceed in implementing the Nagoya Protocol: The participants noted that even within the states the ownership of land were complex with clans and traditional chiefs having significant control over land and resource use. However the participants also agreed that it would be important to develop a national ABS policy for FSM that was sensitive to the powers of the states but also ensured a coordinated system that includes both the national and the state governments. The participants felt that an ABS policy for FSM should, 1) be cost efficient given the limited human and financial resources of the national and state governments, and 2) Be a clear, simple and workable system that incentivizes access to FSM’s genetic resources and associated traditional knowledge.61 As recommended in the Gap Analysis, participants at the Chuuk workshop in November developed a draft Interim FSM ABS Policy, to be considered for approval by national and state executive branches that will serve until more permanent law and policy can be established. Under current planned timelines the interim policy will be in force sometime in 2014 and the final institutional arrangements will be in place throughout the country by the end of 2015.62

L’integration De La Coutume Dans L’elaboration De La Norme Environnementale: Eléments d’ici et d’ailleurs (Bruylant: Paris, 2012). 60  F SM Department of Resources and Development, Report of the First FSM ABS CapacityBuilding and Policy Development Workshop, Pohnpei, August 2013; FSM Department of Resources and Development, Report of the Second FSM ABS Capacity-Building and Policy Development Workshop, Chuuk, November 2013. 61  F SM Department of Resources and Development, Report of the Second FSM ABS Workshop, 3. 62  Ibid., 6–7.

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Does the Fiji and FSM experience with Nagoya Protocol implementation Provide a Precedent for Pacific island Countries?

The federal structure of government in FSM provides additional legal and institutional complexities to many governance challenges, including that of implementing the Nagoya Protocol. While other Pacific island countries do not have to manage issues of national–state jurisdictional divisions, the FSM and Fiji experience in commencing implementation of the Nagoya Protocol indicates a number of challenges that will be experienced by most of its regional neighbors as they ratify the treaty and turn toward its implementation. The first issue in this context is that low levels of technical and administrative capacity are common among most governments and public agencies throughout the region. Accordingly, capacity-building in the sphere of ABS and Nagoya Protocol procedures and requirements will be much needed in coming years. The Secretariat of the Pacific Regional Environment Program and the Secretariat of the CBD are among the organizations and donors that have commenced addressing this need.63 Fiji is uniquely fortunate in being able to benefit from the involvement of USP’s IAS to provide a relatively high level of technical capacity and to engage international and local partners in cooperative bio-prospecting arrangements. USP IAS is well placed to collaborate with and mediate between the owners of Fiji’s marine genetic resources, Fiji’s public officials, and international academic and private research organizations. FSM’s ABS stakeholders have called upon the College of Micronesia to play a similar role, but that institution has meager human and technical resources.64 A disadvantage of USP taking the leading role in Fiji, as compared to the FSM where the national government is leading the process, is that there may be inertia in undertaking the necessary institutional reform within government to fully implement the requirements of the Nagoya Protocol. For full implementation to occur, specific agencies need to be nominated to the CBD Secretariat to perform the roles of CNA and NFP, internationally recognised certificates communicated publicly via the clearinghouse should accompany grants of access, and mechanisms of compliance need to be established. It can be expected that these institutional issues will remain in clear focus for the FSM Government. 63  For example, SPREP and the CBD Secretariat co-hosted the Pacific Sub-Regional Workshop on Access and Benefit Sharing in Suva, Fiji, 25–29 November 2013. 64  F SM Department of Resources and Development, Report of the First FSM ABS Workshop, 7.

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Fiji’s close linkages of bio-prospecting activities to existing communitybased marine management initiatives provide assurance that the objectives of the CBD and the Nagoya Protocol—that ABS should promote conservation and sustainable use of biodiversity—are being honored. Stakeholders concerned with ABS issues in FSM could improve their own programs by investigating linkages between the ABS regime and existing efforts by local communities to sustainably manage their environments through initiatives such as marine protected areas and other strategies. This approach would be consistent with the vision set out in the recently drafted Interim ABS Policy: The Federated States of Micronesia shall have a facilitative, effective, manageable and sustainable ABS system to generate and equitably distribute benefits arising from the use of FSM’s genetic resources and associated traditional knowledge and to use these benefits to ensure the conservation and sustainable use of FSM’s biodiversity and to uphold the rights of the custodians of FSM’s biodiversity.65 Conclusion Implementing the Nagoya Protocol will be a complicated task in any jurisdiction that has yet adequately addressed regulatory and institutional issues surrounding ABS. Clear answers to questions such as: “What benefits should be sought and delivered if genetic resources are or become the subjects of biotechnological research?,” “Who should receive those benefits?,” and “How can ABS promote biodiversity conservation and sustainable development?,” will be necessary in each jurisdiction. The text of the Nagoya Protocol leaves much to the discretion of States’ Parties in determining answers to those questions that are compatible with their specific laws, policies and circumstances. As outlined in the preceding pages, the governments of Fiji and FSM have commenced the process of institutionalising the Nagoya Protocol’s requirements. A core challenge in both countries, and one that will be common to all Pacific island jurisdictions seeking to institutionalize ABS regulation, is that of forming and maintaining collaborative partnerships among all concerned stakeholders. This is particularly the case in Pacific countries since, in addition to the questions outlined in the paragraph above, they will also be asking: “Who owns traditional knowledge associated with genetic resources?,” “How can the 65  F SM Department of Resources and Development, Report of the Second FSM ABS Workshop, 5.

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prior informed consent of local communities be legitimately attained?,” and “What is the role for traditional protocols and customary laws in determining these kinds of ABS issues?” The final question above indicates that a factor that will complicate Nagoya Protocol implementation in Pacific island countries is the plural nature of the Pacific’s legal landscapes. While a full discussion of legal pluralism in the Pacific region is beyond the scope of this chapter, it is noted that the systems of law upon which Pacific island governments are founded continue to co-exist with ancient systems of customary law that are deeply embedded in Pacific societies.66 Often, the everyday lives of Pacific islanders, particularly in rural areas, are more responsive and more directly determined by customary than government norms, rules and procedures. This is particularly evident in relation to matters of natural resource ownership and use, as well as the control and distribution of traditional knowledge linked to natural resources.67 These matters of course are at the center of Nagoya Protocol implementation. It is too soon to draw firm conclusions regarding the performance of either Fiji or FSM in terms of how successful they have been in efficiently and effectively implementing the Nagoya Protocol. A clear strength of the program that Fiji is putting in place with the assistance of the GEF and other external partners is the direct linkage between ABS activities and the successful local-level biodiversity conservation program FLMMA. Equally, one strength of the FSM program is the central involvement of key government agencies and officers; implementing the Nagoya Protocol will require both leadership from within responsible departments, as well as support from legal departments and legislatures to ensure that effective ABS institutional regimes are established. The two countries could probably also learn correlating lessons: the Fiji stakeholders must keep in mind the need ensure that the responsible government departments remain engaged in the process of institutionalising ABS; and the FSM stakeholders need to remain mindful of the possible advantages of linking ABS to ongoing community-based conservation programs.

66  Justin Rose, “Community-Based Biodiversity Conservation in the Pacific: Cautionary lessons in regionalising environmental governance,” in Biodiversity Conservation, Law and Livelihoods: Bridging the North-South Divide, eds. Jeffery M. Firestone and K. Bubna-Litic (Cambridge: Cambridge University Press, 2008), 204. 67  Ibid., 203.

Part 4 Resource Challenges above and below the Oceans

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Chapter 7

The Deep Ocean: Advancing Stewardship of the Earth’s Largest Living Space Kathryn J. Mengerink Abstract Scientists consider waters and seabed below 200 meters in depth as part of the deep ocean. It is a place of extremes—extreme size, extreme depth, extreme pressure, extreme darkness, and extreme unknowns. It is also the largest living space on earth. Human understanding of deep ocean ecosystems is considerably limited in comparison to the rest of Earth’s ecosystems. No doubt this lack of understanding is a result of the high cost, technology requirements, and dangers of working at depth. While knowledge of the deep sea may be limited, human impact is ongoing. From intentional dumping, accidental loss, and land-based runoff, the deep sea bed and water column have been and are being polluted with anthropogenic waste. At the same time, human exploitation is moving deeper. Fishing vessels scour the deep with trawls. Oil and gas companies drill more than one mile below the sea. Mining companies explore the potential to extract manganese nodules across nation-sized swaths of the abyssal plains. Even the effects of climate change are already visible in the deep ocean, including climate-related changes in food supply from surface waters to the deep ocean. As with all natural systems, the deep ocean ignores jurisdictional boundaries. The deep ocean is found in territorial seas, exclusive economic zones, continental shelves, and areas beyond national jurisdiction. In most cases, governance frameworks for managing deep ocean activities include general environmental laws or ocean laws, but few laws focus specifically on human activities in the deep ocean. Yet deep ocean environments share a suite of characteristics that make them special when considering how best to manage human impact to these regions. * Kathryn Mengerink is Senior Attorney and the Director of the Ocean Program at the Environmental Law Institute. She also is a lecturer and academic coordinator at Scripps Institution of Oceanography. She has a Ph.D. in marine biology from UCSD and a J.D. from UC Berkeley. ** This chapter builds from ideas generated at the Deep Ocean Stewardship Initiative meeting held in Mexico City on April 15–17, 2013 and from the subsequent policy paper, Kathryn Mengerink et al., “A Call for Deep Ocean Stewardship,” Science 344 (2014): 696.

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This chapter explores some of the attributes of the deep ocean—from physical characteristics, to ecosystems, to research and monitoring—and how they should inform management decisions. In particular, it focuses on lack of information and cost of research and monitoring as key attributes that should inform deep ocean management. From these constraints, the chapter suggests the need for management that adopts precaution and the expansion of knowledge. It concludes by applying these principles to consideration of mitigation and restoration requirements as an example of how such principles can operate in practice.

I Introduction A What is the Deep Ocean and Where is It? While there is no universal definition of the deep ocean, many scientists consider waters and seabed below 200 meters from the surface as part of the deep ocean.1 It is not an arbitrary depth—it is the depth where shallow water fauna give way to species that thrive at depth.2 It is also the point at which most light does not penetrate. The deep ocean extends from the twilight zone of the ocean at 200 to 1,000 meters to the zone where no sunlight ever reaches, the aphotic zone, below 1,000 meters. In area, the deep ocean covers approximately fifty percent of the world’s surface—360 million square kilometers (sq. km).3 By volume, it is 1,368 × 106 km3.4 To put this figure into terrestrial terms, if the entire terrestrial system of the world was covered in rainforest, the living space of the deep ocean would exceed the canopy living space by 230 times.5 Indeed, it is the largest l­iving space on earth. Yet, human understanding of the deep ocean is extremely limited in comparison to the rest of the Earth’s ecosystems.6 1  Eva Ramirez-Llodra, Paul A. Tyler, Maria C. Baker, Odd Aksel Bergstad, Malcolm R. Clark, Elva Escobar, Lisa A. Levin, Lenaick Menot, Ashley A. Rowden, Craig R. Smith, Cindy L. Van Dover, “Man and the Last Great Wilderness: Human Impact on the Deep Sea,” PLoS ONE 6, no. 7 (2011): 1, accessed October 6, 2014, doi:10.1371/journal.pone.0022588. 2  Ibid. 3  Ibid. 4  Ibid. 5  The area of the terrestrial environment is approximately 148.3 million km2 and the average canopy height is 40 meters. If the entire terrestrial environment has a 40 meter high living space, the living space of the terrestrial environment would be 5.9 million km3. 6  See Enric Sala and Nancy Knowlton, “Global Marine Biodiversity Trends,” Annual Review of Environmental Resources 31 (2006): 96, accessed October 6, 2014, doi:10.1146/annurev .energy.31.020105.100235.

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While once thought to be devoid of life, scientists now know that the deep ocean is thriving with myriad creatures, some so bizarre or terrifying in appearance that they find their way to the science fiction big screen.7 Estimates of deep ocean biodiversity are as high as 10 million species.8 Like all ecosystems, the deep ocean and its seabed counterpart do not follow jurisdictional boundaries. These deep environments are found in national and international areas. They can occur close to shore, as in the area off the coast of La Jolla, California, where canyons that are more than 200 meters deep come within a couple of miles of the beach. Or the deep ocean can start far offshore, as in the waters off of Charleston, South Carolina, where the deep ocean begins more than 78 nautical miles (nm) from shore.9 B Opportunity in and Impact to the Deep Ocean The deep ocean holds a wealth of natural resources—fisheries, oil and gas, minerals, genetic resources, and more.10 Beyond these provisioning services, the deep ocean has a critical role to play in nutrient cycling, carbon sequestration and other regulatory services. While far beyond the experience of most people, the deep ocean and its inhabitants inspire art, film, and the imagination. As human population expands and consumer demand grows, the need for deep ocean resources will expand. With opportunity for use comes the potential for destruction. Regardless of distance from shore or even depth, humans have left their mark on the deep 7  See, for example, Men in Black 3, directed by Barry Sonnenfield (2012; Culver City, CA: Columbia Pictures, 2012) DVD, which includes the deep sea blobfish as an alien. See also Alien, directed by Ridley Scott (1979; Los Angeles, CA: 20th Century Fox, 2004) DVD, the creature of which was inspired by Phronema. For a discussion, see Deepseacreatures.org, “Deep Sea Creatures that Inspired the Alien Series,” Deep Sea Creatures, accessed October 7, 2014, http://deepseacreatures.org/interesting/ deep-sea-creature-that-inspired-the-alien-series. 8  J. Frederick Grassle and Nancy L. Maciolek, “Deep-Sea Species Richness: Regional and Local Diversity Estimates from Quantitative Bottom Samples,” The American Naturalist 139, no. 2 (1992): 336, accessed October 6, 2014, doi:10.1086/285329; but see Robert M. May and J. Godfrey “Biological Diversity: Differences between Land and Sea,” Philosophical Transactions of the Royal Society of London 343, no. 1303 (1994): 105–11 (estimating 500,000 species of marine organisms). 9  See e.g., Bureau of Ocean Energy Management, MarineCadastre.gov National Viewer, at coast.noaa.gov/mmcviewer. 10  For a catalogue of known deep sea services, see, for example, Claire W. Armstrong, Naomi S. Foley, Rob Tinch, and Sybille van den Hove, “Services from the Deep: Steps Towards Valuation of Deep Sea Goods and Services,” Ecosystem Services 2 (2012): 2–13. Accessed October 6, 2014, doi:10.1016/j.ecoser.2012.07.001.

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ocean.11 Targeted exploitation from fishing and oil and gas development provide some of the most well-known impacts to the deep ocean. Akin to clear cutting on land, bottom trawling indiscriminately scrapes and destroys bottom habitat, including cold water corals that grow mere millimeters per year, or even slower.12 The footprint of bottom trawling has been estimated at 20 million sq. km.13 Oil and gas development leaves a small footprint if done correctly, but as the Deepwater Horizon oil disaster of 2010 demonstrated, accidents at such extreme depths can have far-reaching and devastating consequences, since industry and governments lack the necessary technology and tools to clean up and restore such ecosystems. In addition, the deep ocean is the final resting place for land-based sources of pollution that find their way into the ocean. Ask a scientist who has visited the deep, and he or she will likely tell you about the human waste evident there—from parts of a cow to mannequins to degraded plastics of unknown origin and more. The area has served as a dumping ground for radioactive waste,14 mine tailings,15 munitions, and more, and some people advocate for the use of the deep sea as a storage site for sequestered carbon as a way to combat climate change. Even without intentional storage of carbon, the deep ocean is, in fact, a natural carbon storage system that is already feeling the effects of anthropogenic climate change.16

11  For an overview of major impacts, see Ramirez-Llodra et al., “Man and the Last Great Wilderness.” 12   U.S. Department of Commerce, National Marine Fisheries Service, “Deep-Sea Coral Ecosystems of the United States,” in In Our Living Oceans, by Elizabeth Lumsden, Thomas F. Hourigan, and Andrew W. Bruckner (2009): 77–87, http://spo.nmfs.noaa.gov/ olo6thedition/09—Feature%20Article%203.pdf. 13  Pere Puig, Miquel Canals, Joan B. Company, Jacobo Martin, David Amblas, Galderic Lastras, Albert Palanques, and Antoni M. Calafat, “Ploughing the Deep Sea Floor,” Nature 489 (2012): p. 1 of the Supplementary Information, accessed October 6, 2014, doi:10.1038/ nature11410. 14  Hjalmar Thiel, “Chapter Two: Deep Sea Impacts,” in The Oceans in the Nuclear Age: Legacies and Risks (David D. Caron & Harry N. Scheiber, eds. 2010). 15  For example, Norway has filled fjords with mine tailings. See Jonathan Amos, “Scrutiny for Norwegian Fjord Rock Disposal,” BBC News, February 23, 2012, accessed October 6, 2014, http://www.bbc.co.uk/news/science-environment-17136821. 16  Eva Ramirez-Llodra et al., “Man and the Last Great Wilderness,” 15–16; Ken L. Smith et al., “Climate, Carbon Cycling, and Deep-Ocean Ecosystems,” Proc. Nat’l Acad. Sci 106(46) (2009): 19211–19218.

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As technology improves and human demand for resources continues to grow, the deep ocean is also the frontier for new and expanding exploitation. Deep sea mining—an issue that has been a topic of conversation in the ocean law realm for decades—is now seriously pursued with several nations and industry counterparts holding exploration leases as large in area as mediumsize countries.17 Offshore wind energy, a relatively new activity in the ocean, is already pushing into deep waters with recent efforts to develop floating offshore wind farms that tether to the seafloor at depths of almost 400 meters.18 These activities, and as yet undiscovered new uses, will provide needed resources. If deep sea activities are done poorly, however, they will add to the onslaught of human impacts accumulating in the deep ocean. II

Special Characteristics of the Deep

A Overview The deep ocean is a heterogeneous environment made up of diverse ecosystems. The area is marked by hydrothermal vents with organisms that derive energy from sulfur dioxide (rather than the sun), abyssal plains where manganese nodules litter the seafloor to sea mounts, and features vast underwater mountain ranges, often with high biodiversity and endemism. Despite this heterogeneity, deep ocean environments share a suite of characteristics that collectively make them special when considering how best to manage human impact to these regions. This section summarizes some of the special attributes of the deep ocean, and subsequent sections will explore how these attributes can inform management decisions. B Dark and under Pressure With depth comes pressure—extreme pressure. For every ten meters, pressure increases by 1 bar. Swim to the bottom of a 10-foot pool to feel a small pressure change (~0.3 bars). Swim to the deepest part of the ocean and feel

17  See “Exploration Areas,” International Seabed Authority, accessed October 6, 2014, http:// www.isa.org.jm/en/scientific/exploration. 18  Elizabeth Harball, “Will Ore. Test Project Bring Offshore Wind to the West Coast?,” E&E News, October 9, 2013, accessed October 6, 2014, http://www.eenews.net/stories/ 1059988558.

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pressure that is equivalent to, as the National Oceanic and Atmospheric Administration puts it “one person trying to support 50 jumbo jets.”19 The organisms of the deep sea have adapted to life under such pressure with a variety of mechanisms. Deep diving whales can collapse their lungs to keep them from rupturing. Deep ocean organisms tend to have a greater percent of unsaturated fatty acids in the cell membranes compared to their shallow water counterparts, which keep cell membranes fluid (a requirement for survival).20 As one travels deeper in the ocean, sunlight disappears. The depth that light penetrates in the ocean is, in part, a function of the clarity of the water. In the middle of the ocean where phytoplankton abundance is low, light penetrates the deepest. Most light is absorbed by 200 meters in depth. By 1,000 meters in depth, light from the sun is completely absent. That said, the deep ocean is not entirely devoid of light. From the surface to the deepest depths of the ocean, organisms use bioluminescence (biologically produced light) to send signals to the world around them. Without light and primary production from sunlight, organisms of the deep must rely on detritus falling from the surface and other sources of energy. C Science and Technology of the Deep High pressure, vast areas, and darkness all contribute to the challenge of conducting research and monitoring in the deep ocean. The extreme pressure of the deep ocean creates extraordinary limits on the way that scientists can conduct research. Long before one reaches the 200-meter mark, scuba diving becomes tremendously dangerous, and only a few people have ever been to the deep ocean via scuba.21 Submersibles take humans deeper, and allow scientists to directly visualize creatures of the deep. Pressure again limits the depth to which submersibles can dive,22 and only 19   “Pressure Increases with Ocean Depth,” NOAA, accessed October 6, 2014, http:// oceanservice.noaa.gov/facts/pressure.html. 20  See, for example, George N. Somero, “Adaptations to High Hydrostatic Pressure,” Annual Review of Physiology 54 (1992): 557–577, accessed October 6, 2014, doi:10.1146/annurev .ph.54.030192.003013. 21  See, for example, “Scuba Records,” Scuba Records, accessed October 6, 2014, http://www .scubarecords.com/ (noting that the deepest scuba dive by a woman at sea is 190 meters and deepest dive on record is 330 meters; to achieve these records required the use of multiple tanks to enable a slow rise to the surface to prevent decompressions sickness, using combinations of gas that prevent nitrogen narcosis). 22  As the Office of Naval Research points out, the famous submersible, ALVIN, was initially made from steel and could only travel to approximately 2,000 meters in depth. When replaced with a titanium hull ALVIN could travel as deep as 4,000 meters.

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two submersibles have ever traveled to the deepest depths of the ocean, the bottom of the Marianas Trench. Today, the use of remotely operated vehicles (ROVs) is common for deep ocean research that requires careful handling of samples or visualizing organisms in their natural state. These vehicles allow scientists to roam the deep using cameras, and in some cases maneuverable arms to take samples. In addition, scientists continue to use more indiscriminate collection devices, such as mid-water and benthic trawls, coring devices, and other devices that can grab rocks and sediment from the seafloor. These conditions make accessing and understanding the deep ocean an immense and costly challenge.23 Cost is a function of several things, including technology needed to operate at high pressure, tools needed to visualize and sample the deep, the size of cables and lines needed to reach the deep, ROVs and submersibles operators, and the cost of the science crew itself. The time to do deep sea research adds to the cost. While some deep ocean habitats are close to shore, often scientists must travel long distances to conduct deep ocean research.24 Once on station, the length of time to deploy and retrieve gear is a function of depth. For example, taking core samples at 5,000 meters is a three to four hour operation.25 Furthermore cores often fail for a variety of reasons—e.g., the equipment could land on a rock so large as to prevent the cores from collecting any sediment at all—so several attempts may be needed. U.S. research cruises cost $30,000–$50,000 per day to operate, excluding researcher staff time, meaning that a 30-day expedition can cost $1 million or more, plus researcher salaries.26 Add an ROV to the cruise, and the operating costs can run $60,000–70,000 per day.27 D The Known Unknowns and the Unknown Unknowns While not discussing the deep ocean, Secretary of Defense, Donald Rumsfeld said it best when he stated “we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t

23  Laura Ruth, “Gambling in the Deep Sea,” EMBO Reports 7, no. 1 (2006): 18, accessed October 6, 2014, doi:10.1038/sj.embor.7400609. 24  Ibid. 25  L. Levin (deep sea benthic ecologist, Scripps Institution of Oceanography), personal communication with the author, September 26, 2013. 26  Ruth, “Gambling in the Deep Sea,” 18. 27  L. Levin (deep sea benthic ecologist, Scripps Institution of Oceanography), personal communication with the author, September 26, 2013.

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know.”28 Likewise, in the deep ocean there are many “known unknowns” and past experience indicates that many “unknown unknowns” await discovery. A review of deep ocean literature demonstrates a remarkable number of incredible discoveries about the deep that have occurred relatively recently. In the past fifty years, scientists have discovered hydrothermal vents, methane seeps, whale falls, wood falls, and other chemoautotrophic communities. They have established the importance (and the slow growing nature) of deep ocean corals for providing habitat to juvenile fish and other species. While long a creature of tall tales from the sea, it was not until 2012 that the giant squid—a resident of the deep—was filmed alive in its habitat. Despite recent and ongoing discoveries, it is a place where even large fauna remain elusive and undescribed. A recent paper on the benthic biogeography of the deep ocean states that “[b]iotic data for these depths [greater than 800 m] are very limited geographically (i.e., many areas of the deep sea remain to be sampled), many species collected from these depths remain undescribed, and many others are known only from single sampling stations and so are not amenable to biogeographic analyses.”29 A 1999 paper by Snelgrove evaluated biodiversity of marine sediments and estimated that less than one percent of species from these sediments are known.30 Among the unknowns, there are those things that scientists know that they do not know. For instance, scientists know of the deep sea squid, Architeuthis, but know that they do not know how many species exist.31 Such “known unknowns” are important factors that guide scientists and research programs to advance understanding, as well as enable environmental assessment in advance of deep ocean exploitation.

28  Department of Defense News Briefing, Secretary Donald Rumsfeld and General Richard Myers (Feb 12, 2002), available at http://www.defense.gov/transcripts/transcript .aspx?transcriptid=2636 (last visited Oct 1, 2013). 29   Les Watling, John Guinotte, Malcom R. Clark, and Craig R. Smith, “A Proposed Biogeography of the Deep Ocean Floor,” Progress in Oceanography 111 (2013): 92, accessed October 6th, 2014, doi:10.1016/j.pocean.2012.11.003. 30  Paul V.R. Snelgrove, “Getting to the Bottom of Marine Biodiversity: Sedimentary Habitats: Ocean Bottoms Are the Most Widespread Habitat on Earth and Support High Biodiversity and Key Ecosystem Services,” BioScience 49, no. 2 (1999): 130, accessed October 6, 2014, doi:10.2307/1313538. 31  See, for example, Ángel Guerra, Ángel F. González, Santiago Pascual, and Earl G. Dawe, “The Giant Squid Architeuthis, An Emblematic Invertebrate that Can Represent Concern for the Conservation of Marine Biodiversity,” Biological Conservation 144, no. 7 (2011): 1989–97, accessed October 6, 2014, doi:10.1016/j.biocon.2011.04.021.

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“But there are also unknown unknowns.”32 Recognizing how little of the deep ocean has been studied, how vast it is, how difficult it is to access, and seeing the large-scale and profound discoveries of the deep that have occurred in recent decades, it is fair to assume that much of the deep ocean remains a mystery, and “we don’t know what we don’t know.” An example of an unknown unknown is the scaly-foot snail. The creature was discovered by Dr. Cindy Lee Van Dover and her team in 2001 on the Central Indian Ridge in the Indian Ocean. The snail’s foot is covered in scales fortified with iron. A characteristic previously unknown, it is now the subject of biomimicry research to explore how to improve armor for people, vehicles and other structures.33 The challenge with such unknown unknowns is that they could be damaged or even eradicated by human activity before they are ever known to science. Perhaps all that would be lost would be the existence value of these resources. Or perhaps such resources hold the key to advancing modern medicine or hold the next big discovery for biotech or other another industry.34 Or perhaps such unknown unknowns contribute to the biogeochemical cycling of the earth—important for carbon capture or nutrient cycling. As one recent author wrote, “[t]he deep sea, but also the water column and benthic environment beyond the shelf edge, are the largest unknown under the ecosystem service perspective.”35 E

Slow Growth, Slow Recovery Recovery rates in the deep sea are likely to be slow, on the order of decades or longer. Paul A. Montagna, et al.36

32  Department of Defense News Briefing, Secretary Donald Rumsfeld and General Richard Myers (Feb 12, 2002), accessed October 9, 2014 http://www.defense.gov/transcripts/ transcript.aspx?transcriptid=2636. 33  Richard Blaustein, “High-Seas Biodiversity and Genetic Resources: Science and Policy Questions,” BioScience 60, no. 8 (2011): 410, accessed October 6, 2014, doi:10.1525/ bio.2010.60.6.3. 34  For example, an enzyme isolated from a deep sea marine fungus collected at 5,000 meters in the Central Indian Ocean basin is now used in laundry detergents. Ibid., 412. 35  Camino Liquete et al., “Current Status and Future Prospects for the Assessment of Marine and Coastal Ecosystem Services: A Systematic Review,” PLoS ONE 8, no. 7 (2013): 13, accessed October 6, 2014, doi:10.1371/journal.pone.0067737. 36  Paul A. Montagna et al., “Deep-Sea Benthic Footprint of the Deepwater Horizon Blowout,” PLoS ONE 8, no. 8 (2013): 1, accessed October 6, 2014, doi:10.1371/journal.pone.0070540.

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A recent paper by Montagna et al. evaluating the benthic footprint of the Deepwater Horizon illustrates the challenge of human impact to the deep ocean—namely that many deep sea ecosystems are slow to recover from impact.37 Perhaps the poster-child for slow growth in the deep ocean, evidence indicates that many deep sea corals grow less than one millimeter to only a few millimeters per year.38 In addition to the benthic organisms of the deep, the demersal deep ocean fish species targeted by fishermen all over the world are often slow to grow and slow to recover. One such fish, the orange roughy, has been severely depleted as it aggregates on seamounts, making it an easy target for fishermen. This species is just one example of fish species that live one hundred years or more.39 Not only are species slow to grow, but some substrates that are mining targets will take millions of years to reform. For example, manganese nodules, which cover large swaths of the abyssal plains, are deep sea mining targets for metals such as cobalt, copper and nickel contained within. They are both non-renewable resources, taking millions of years to form, and provide hard substrate for countless unknown species. F

Value of Resource and Potential for Restoration Unlike on land, where there may be means of restoring damaged habitats, when we compromise habitats in the deep sea, we don’t know the consequences, and there may be no easy remediation. Cynthia Lee Van Dover, deep sea ecologist40

The unknowns of the deep ocean make valuation of resources located there particularly challenging.41 On the one hand, regulators may be able to reasonably estimate the potential value to be gained by existing or known potential 37  Ibid., 7–8 (noting that deep-sea communities are slow to recolonize clean sediments, oil degradation at the site is expected to be slow given limited nutrient availability and low temperatures, and recognizing that shallow-water soft sediment organisms took years to decades to recover after shallow-water spills). 38  J. Murray Roberts, Andrew Wheeler, Andre Freiwald, and Stephen Cairns, Cold-Water Corals: The Biology and Geology of Deep-Sea Coral Habitats (Cambridge: Cambridge University Press, 2009): 83–86. 39  Tony Koslow, The Silent Deep: The Discovery, Ecology, and Conservation of the Deep Sea (Chicago: The University of Chicago Press, 2007): 204–209. 40  Blaustein, “High-Seas Biodiversity,” 413. 41  See Armstrong, “Services from the Deep,” 3 (stating that “data gaps are especially large for the deep sea” creating challenges for valuing deep ocean ecosystem services).

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exploitation of the deep. Whether it is from fisheries or from mining, the direct costs of the activity and the resulting economic gains can be estimated. In some instances, regulators can evaluate some of the external costs—for example, loss of cold water coral habitat due to trawling or bycatch of non-target species. Without knowledge of what exists there and the potential utility of those resources, however, regulators lack the knowledge to ascertain the true cost of human impact. Even if a reasonable price tag can be placed on lost resources, it will be difficult or impossible to restore them. The enormous unknowns create fundamental barriers to restoration. Lack of knowledge of what exists in the deep ocean makes active restoration of most deep ocean ecosystems impossible, leaving passive restoration—in other words, leaving the system alone to recover naturally—as the primary mechanism available to address impacts. For systems that are better understood, restoration may take tens to hundreds of years. For example, a deep sea coral could be replaced by seeding with new corals. Some deep sea corals, however, “may take centuries to recover, if they recover at all,” according to the National Oceanic and Atmospheric Administration.42 The challenges to restoration of the deep ocean are playing out in real time in the case of the Deepwater Horizon oil spill—a spill that largely affected the deep ocean water column and benthic ecosystem. In an effort to jump start restoration, BP agreed to pay one billion dollars for early restoration.43 Already, ten projects have been decided and another 28 are proposed, worth a total of $665 million.44 Of the existing projects, none are explicitly related to the deep 42   U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Deep Sea Coral Research and Technology Program 2012 Report to Congress (2012), http:// docs.lib.noaa.gov/noaa_documents/NMFS/CRCP/Reports/deep-sea-corals_report-tocongress_2010-2011.pdf. Growth of deep sea corals can vary substantially. For example, one studied found that bubblegum coral on a seamount in the Pacific grew six to nine centimeters per year, while the bamboo coral grew 0.2–0.4 centimeters per year. 43   “Framework Agreement for Early Restoration Addressing Injuries Resulting from the Deepwater Horizon Oil Spill,” Restore the Gulf, accessed October 9, 2014, http:// www.restorethegulf.gov/sites/default/files/documents/pdf/framework-for-earlyrestoration-04212011.pdf. 44  Deepwater Horizon Natural Resource Trustees, “Deepwater Horizon Oil Spill Phase I Early Restoration Plan and Environmental Assessment,” Deepwater Horizon Natural Resource Trustees, accessed October 9, 2014, http://www.gulfspillrestoration.noaa.gov/ wp-content/uploads/Final-ERP-EA-041812.pdf; Deepwater Horizon Natural Resource Trustees, “Deepwater Horizon Oil Spill Phase II Early Restoration Plan and Environmental Assessment”, Deepwater Horizon Natural Resource Trustees, accessed October 9, 2014,

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ocean. Instead they focus on restoration of near-shore habitats like beaches, oyster reefs, and marshes, creating artificial reefs, and improving recreational activities through boardwalks, park enhancement projects. The artificial reef projects could, depending on depth, arguably relate to deep ocean restoration. The creation of a fisheries research center could focus on deep ocean research. In light of the immense impact to the deep ocean and the fact that the spilled originated there, one would think that a substantial amount of the funds would target deep ocean restoration. In light of the existing constraints to deep ocean restoration—lack of knowledge about the deep ocean, lack of public connection to the deep ocean,45 and lack of cost-effective mechanisms to restore deep ocean resources in a reasonable period of time—it is no surprise that of the $665 million worth of projects identified to date, none are specifically focused on deep ocean restoration. III

Using Special Features of the Deep Ocean to Inform Management

A Two Guiding Principles for the Deep Ocean In the deep sea where major industries such as oil and gas development and deep sea fisheries are pushing the boundaries of exploitation, science lags behind. As Daniel B. Jones stated in 2007, “[a] large amount of oil activity is in remote deep-water areas not sampled by deep-sea biologists; in these places even common fauna are unknown.”46 The same can be said for deep sea mining and deep sea fisheries.47 The science lag is not surprising. The special nature of the deep ocean severely constrains scientific discovery, research, monitoring and assessment, creating significant challenges for science-based decision-making.

http://www.gulfspillrestoration.noaa.gov/wp-content/uploads/DRAFT-Phase-II-DERPER-10-29-12.pdf; U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Notice, “Deepwater Horizon Oil Spill; Proposal of Future Early Restoration Projects and Environmental Reviews,” Federal Register 78, no. 87 (May 6, 2013): 26319, www.gpo.gov/fdsys/pkg/FR-2013-05-06/pdf/2013-10693.pdf. 45  For example, of the 950 projects proposed for Deepwater Horizon restoration, only one has “deep sea” in the title or project description. 46  Daniel O.B. Jones, “Using Existing Industrial Remotely Operated Vehicles for Deep-Sea Science,” Zoologica Scripta 38, no. s1 (2007): 43, accessed October 7, 2014: doi:10.1111/ j.1463–6409.2007.00315.x. 47  Ramirez-Llodra et al., “Man and the Last Great Wilderness,” 9.

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These constraints should guide the development of key principles for deep ocean management. In particular, this chapter recommends two guiding principles for deep ocean management: First, the extreme limits of human knowledge of the deep ocean require minimization of human impact in order to avoid significant and permanent harm. Second, the lack of knowledge of the deep ocean calls for mechanisms to expand deep ocean research in order to enable sound decision-making and expansion of appropriate utilization of the deep ocean. The first principle is, in essence, the precautionary approach. As defined by the Rio Declaration, the precautionary approach states that “[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”48 The slow growth, slow reproduction and inability to restore many deep ocean habitats and species, along with the immense unknowns, including those associated with deep sea activities, makes the precautionary approach particularly important for deep ocean decision-making. The second principle recognizes that in order to reduce risk and enable use while avoiding environmental degradation requires expansion of human understanding of the deep ocean. Such understanding should allow expanded utilization of the deep ocean while avoiding special, sensitive, and areas with unique species and ecosystems. These principles can be applied to a wide variety of decision-making processes from national to international deep sea management. The rest of this chapter focuses particularly on the application of these principles in the context of liability, mitigation, and restoration. B Applying the Principles to Injury Frameworks i Injury Frameworks Injury frameworks are established under international and national laws, and include liability, mitigation and restoration requirements. Mitigation and restoration arise in two circumstances: (1) accidental injury where responsible

48   United Nations Environment Programme, Rio Declaration on Environment and Development (Rio de Janeiro, 1992), Principle 15.

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parties are liable; and (2) planned and permitted injury where responsible parties are required to take mitigation actions. For accidental injury giving rise to restoration actions, many environmental frameworks include provisions making responsible parties liable for damages caused by wrongful acts, including injury to protected resources or protected places, and injury caused by oil spills and other hazardous waste discharges. Examples include the U.S. National Marine Sanctuaries Act, which makes responsible parties liable for any injury to a sanctuary resource, and the U.S. Oil Pollution Act, which makes responsible parties liable for injuries caused by illegal oil discharges.49 In addition to restoration triggered by illegal injuries to natural resources, other environmental laws allow injury, but require mitigation. As explained by the U.S. Environmental Protection Agency (EPA), mitigation is a three-step process that includes avoiding harm, minimizing harm, and then compensating for unavoidable harm, including restoration activities.50 ii International Framework for Injury to Deep Ocean Resources A variety of legal obligations arise under international law requiring parties and contractors to take steps to avoid harm, and to establish responsibility if illegal injury occurs.51 Liability Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) addresses protection and preservation of the marine environment, including the deep ocean. According to Article 235, “States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.”52 Article 235 also includes additional requirements related to pollution, stating: With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, 49  See infra notes 75–79 and accompanying text. 50  See, for example, “Wetlands Compensatory Mitigation,” Environmental Protection Agency, accessed October 7, 2014, http://www.epa.gov/owow/wetlands/pdf/CMitigation.pdf. 51  This section does not provide an exhaustive overview of liability, mitigation, and restoration requirements. Instead it highlights some key approaches under the United Nations Convention on the Law of the Sea [hereinafter UNCLOS] and other agreements. 52  U NCLOS, Part XII, Art. 235(1) in force 1994 (1982).

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States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.53 Additional liability requirements arise under UNCLOS Part XIII, Marine Scientific Research. Specifically, “States and competent international organizations shall be responsible and liable . . . for damage caused by pollution of the marine environment arising out of marine scientific research undertaken by them or their behalf.”54 Additional liability obligations arise under the International Maritime Organization conventions that establish civil liability requirements for oil pollution incidents.55 Civil liability requirements for hazardous and noxious pollution incidents are not yet in force.56 Part XI of the UNCLOS establishes the international framework for management of mineral resources in the Area57—the seabed beyond national jurisdiction.58 The Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 establishes liability requirements for State Parties, international organizations, and contractors operating in the Area. Specifically, Article 139 states that “damage caused by the failure of a State Party or international organization to carry out its responsibilities under [Part XI] shall entail liability.” That said, sponsoring States are not liable for injury caused by a contractor “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.”59 53  U NCLOS, Art. 235(3). 54  U NCLOS, Art. 263(3). 55  See Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart Publishing, 2010): 369–71. 56  “International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS),” International Convention on International Maritime Organization, accessed October 9, 2014, http:// www.imo.org/About/Conventions/ListOfConventions/Pages/International-Conventionon-Liability-and-Compensation-for-Damage-in-Connection-with-the-Carriage-ofHazardous-and-Noxious-.aspx. 57  U NCLOS, Part XI (1982). 58  U NCLOS, Art. 1(1). 59  U NCLOS, Annex III, Art 1(4).

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The question of liability of a sponsoring State for failure to comply with UNCLOS provisions related to deep seabed mining is one that has been addressed by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in an advisory opinion on sponsoring State responsibilities.60 The case focused on the responsibility of State sponsors should a contracting mining company fail to comply with the provisions of the Convention,61 limiting State liability to “the State’s failure to meet its obligations to “ensure” compliance by the sponsored contractor.”62 No international cases to date, however, addresses an actual liability claim related to damage to the environment arising out of a failure of a State Party or international organization to carry out its responsibilities under the deep seabed mining provisions.63 In addition to State responsibility, contractors bear responsibility for ensuring that their activities are not deemed wrongful acts, causing injury and triggering liability. Specifically, Annex III, Article 22 establishes contractor liability for deep sea mineral activities in the Area, stating that “[t]he contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations. . . . Liability in every case shall be for the actual amount of damage.”64 In implementing this requirement, the International Seabed Authority (ISA) regulations for exploration of cobalt crusts, manganese nodules and polymetallic sulphides state that “[t]he contractor shall continue to have responsibility for any damage arising out of a wrongful acts in the conduct of its operations, in particular damage to the marine environment, after the completion of the exploration phase.”65 As deep sea mining exploration is in its infancy, damage arising from ­wrongful 60   Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, Case No. 17 (2011). 61  Ibid., para. 38. 62  Ibid., para. 108. 63  In addition “there has been no resolution of any inter-state claims in relation to transboundary marine pollution damage on the basis of state responsibility rules.” Rothwell and Stephens, International Law of the Sea, 366. 64  U NCLOS, Annex III, Art 22. 65   International Seabed Authority [hereinafter ISA], Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area, Regulation 32 (July 27, 2012) [hereinafter Cobalt-Rich Ferromanganese Crusts Exploration Regulations]; ISA, Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, Regulation 32 (May 7, 2010); ISA, Decision of the Council of the International Seabed Authority Relating to Amendments to

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conduct has yet to be identified and pursued. As discussed in this section, wrongful acts by States or contractors could trigger liability requirements. The next step is determining what restoration or mitigation actions should be taken in response to such liability. In addition, mitigation and restoration may arise out of a positive duty to avoid or minimize harm—for example under international obligations to protect and reduce impacts to the marine environment. Mitigation and Restoration UNCLOS recognizes the importance of protecting the marine environment, and it establishes requirements to prevent, reduce, and control impacts. According to Article 145, the ISA is required to adopt rules and regulations to prevent, reduce and control pollution and protect and conserve natural resources, including preventing damage to marine organisms in the Area. Similarly, the Convention call upon coastal States to take measures “designed to maintain or restore” harvested species to achieve maximum sustainable yield within exclusive economic zones,66 and for all States to take such measures to conserve living resources on the high seas,67 which includes deep sea living resources. These broad provisions set the stage for specific mitigation and restoration requirements in the marine environment. Under the ISA, existing regulations for exploration in the Area provide some framework for mitigation. Cobalt crust regulations provide an example. The regulations require that each prospector “take necessary measures to prevent, reduce and control pollution and other hazards . . . applying a precautionary approach and best environmental practices.”68 It further calls for minimization and elimination of adverse environmental impacts.69 The regulations also require contractors to establish contingency plans in the event of an incident that is likely to cause serious harm or threat of serious harm. As part of the plans, contractors are to address “[t]he reduction and, so far as reasonably possible, prevention of serious harm to the marine environment, as well as mitigation of such efforts.”70 the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and Related Matters, Regulation 30 (July 7, 2013). 66  U NCLOS, Art. 61(3). 67  U NCLOS, Art. 117. 68  I SA, Cobalt-Rich Ferromanganese Crusts Exploration Regulations, Annex, Regulation 5(1) (Oct. 22, 2012). 69  Ibid. 70  I SA, Cobalt-Rich Ferromanganese Crusts Exploration Regulations, Annex IV, Standard Clauses for Exploration Contract § 6(f) (Oct. 22, 2012).

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Specific requirements and standards for mitigation and restoration are missing, however. For example, the Environmental Management Plan for the Clarion-Clipperton Zone, the major manganese nodule site in the Pacific Ocean, identifies the need to mitigate harm. The plan calls for protection and preservation of areas from mining activities, but it does not set up standards for avoidance and minimization of harm.71 That said, some technical documents provide additional insight. In particular, one ISA technical study identifies some mitigation elements in more detail, including identifying the types of mitigation measures that should be included in an environmental impact assessment.72 These include a call for mitigation measures related to maritime safety, biosecurity, waste management, on- and near-shore environment, socioeconomic impacts, and accidental events and natural hazards.73 Aside from listing mitigation as necessary consideration, however, no additional standards are provided. As deep sea mining activities move forward, specific standards and processes for mitigation and restoration should be established. iii U.S. Framework for Injury to Deep Ocean Resources The U.S. framework for oil spill liability and restoration under the Oil Pollution Act (OPA), buffer zones under the Outer Continental Shelf Lands Act (OCSLA), and wetlands mitigation requirements under the Clean Water Act (CWA) are more developed than the international injury framework, and these statutes provide lessons learned that could be applied to management of the deep ocean.74 In the United States, OPA holds responsible parties liable for natural resource damages, requiring assessment of impact and restoration of ecosystem services to the baseline conditions prior to the spill.75 Restoration can include rehabilitation, replacement of lost resources, and/or acquisition of equivalent resources in the case where lost resources cannot be replaced.76 71   International Seabed Authority, Legal and Technical Committee, Environmental Management Plan for the Clarion-Clipperton Zone, ISBA/17/LTC/7 (2011). 72  I SA, Environmental Management Needs for Exploration and Exploitation of Deep Sea Minerals, ISA Technical Study No. 10 (2011). 73  Ibid., 22–27. 74  As with the international framework, the U.S. fisheries management framework does not establish liability system requiring restoration of injured resources as a result of wrongful acts. Like the international framework, U.S. law calls for recovery of overfished and depleted stocks to achieve optimum yield in accordance with the Magnuson-Stevens Fishery Conservation and Management Act. 75   Oil Pollution Act, U.S. Code, vol. 40, secs. 2702, 2706 (2012). 76  Ibid., sec. 2706(d)(1)(A).

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Responsible parties are liable for primary restoration that arises from direct injuries (e.g., replacement of bird killed by spills).77 They also are responsible for impact related to the time it takes to recover from the injury, which is known as compensatory restoration (e.g., time for new birds to replace those lost).78 Compensatory restoration, in particular, offers opportunities for creative approaches to restoration.79 In addition to accidental damage, intentional and permitted damage may require mitigation—a three-prong approach of avoidance, minimization, and restoration of injuries. The Department of the Interior has issued guidance under the OCSLA in the form of notices to lessees that call for special measures to protect benthic communities when operating below 300 meters.80 In particular, the Notice to Lessees requires that operators establish buffer zones around chemosynthetic communities like hydrothermal vents and cold water coral communities in order to avoid and minimize harm.81 The buffer zone is 2,000 feet for mud and cutting discharge locations, and 250 feet for other disturbances.82 In addition, the Notice to Lessees requires operators to show actual seafloor disturbance and demonstrate the community was not physically impacted by any activities within 500 feet of chemosynthetic and cold water coral communities.83 There are no corresponding protections that relate to the deep ocean water column. U.S. requirements for wetlands mitigation under CWA provides another example of a legal approach to avoid, minimize, and restore permitted 77  Ibid. 78  Ibid., sec. 2706(d)(1)(B). 79  See, for example, David J. Chapman and Brian E. Julius, “The Use of Preventative Projects as Compensatory Restoration,” Journal of Coastal Research, special issue no. 40 (2005): 121. 80   U.S. Department of the Interior [hereinafter DOI], Minerals Management Service, Gulf of Mexico OCS Region, Notice to Lessees and Operators of Federal Oil, Gas, & Sulphur Leases and Pipeline Right-of-Way Holders, Outer Continental Shelf, Gulf of Mexico Region, NTL No. 2009-G40 (Jan 27, 2010) [hereinafter NTL No. 2009-G40]. As stated in NTL No. 2009-G40, “MMS issues NTL’s as guidance documents in accordance with 30 CFR 250.103 to clarify, supplement, and provide more detail about certain MMS regulatory requirements and to outline the information you provide in your various submittals. Under that authority, this NTL sets forth a policy on and an interpretation of a regulatory requirement that provides a clear and consistent approach to complying with that requirement. However, if you wish to use an alternate approach for compliance, you may do so, after you receive approval from the appropriate MMS office under 30 CFR 250.141.” 81  Ibid. 82  Ibid. 83  Ibid.

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i­njuries to resources.84 The law recognizes that avoidance and minimization of harm are the primary approaches to mitigate impact and that compensatory mitigation to offset unavoidable harm should be undertaken only after “all appropriate and practicable steps have been taken to first avoid and then minimize adverse impacts.”85 Compensatory mitigation includes four methods: (1) restoration of another aquatic site, (2) enhancement of another aquatic site, (3) establishment of a new aquatic site, or (4) preservation of an existing aquatic site.86 The potential to preserve sites as a form of mitigation may be of particular use in the deep ocean where restoration, enhancement, and establishment of new sites are challenge approaches at best.87 These approaches serve as models that could be adopted and applied to manage of deep ocean resources in national and international management. iv

Advancing Precaution and Knowledge Creation under Injury Frameworks in the Deep Ocean Applying the precautionary approach and the need for expansion of knowledge and building from the U.S. models for liability, mitigation, and restoration, this section explores ways to advance management of the deep ocean. Restoration of the deep ocean is difficult at best due to lack of knowledge about what was lost, lack of ability to restore the deep ocean, the time to recover a resource in some instances, and the immense cost to undertake deep ocean restoration when it is known. Therefore other approaches to restoration are needed. In particular, two approaches provide a way to build from the identified guiding principles to expand knowledge and protect the unknown as a precautionary approach: (1) develop a deep sea research fund; and (2) adopt preservation of deep sea areas to achieve compensatory restoration. Expand Knowledge Through a Research Fund Restoration under liability frameworks and mitigation frameworks can include research. While research as a restoration tool is typically not preferred,88 in 84   Clean Water Act, U.S. Code, vol. 33, sec. 404 (2012). 85   U.S. Department of Defense, Department of the Army, Corps of Engineers and U.S. Environmental Protection Agency, Final Rule, “Compensatory Mitigation for Losses of Aquatic Resources,” Federal Register 73, no. 70 (April 10, 2008): 1959473, http://www.gpo .gov/fdsys/pkg/FR-2008-04-10/pdf/E8-6918.pdf. 86  Ibid. 87  See infra Section B(iii) for additional discussion. 88  Research as restoration is not typically preferred because the goal of restoration is to replace lost or damaged species and habitats, not to conduct research.

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the deep ocean, such an approach should be required. Research as part of the mitigation and restoration process is one that has been used before as part of post-oil spill restoration. As part of the natural resource damages settlement for the Exxon Valdez oil spill—a surface spill that continues to impact Prince William Sound more than twenty years later—the responsible party agreed to support the establishment of a research fund as part of the restoration package.89 A similar approach has been suggested as a mechanism to address the Deepwater Horizon oil spill.90 Although research is not directly restoration, it should be part of the compensatory restoration bundle as a necessary measures to enable future restoration and understanding of ecosystem recovery. Taking this approach would help overcome the funding challenge for deep ocean research, and expand knowledge of the deep sea. As more information becomes available, the potential to carefully exploit resources, while minimizing long-term or permanent damage, should grow. This example also considers the use of the liability framework for support a research trust fund. One also could envision other sources of support for a trust fund. For example, per barrel or per pound taxes on extractive activities could provide a mechanism for funding, as is the case with per barrel oil taxes deposited into the U.S. Oil Spill Liability Trust Fund, which was established to address clean up in the absence of responsible parties available to pay the full cost.91 Preservation as a Form of Compensatory Restoration This approach that has been used for compensatory wetlands mitigation as well as natural resource damage cases. In the U.S., those wishing to dredge or fill wetlands must mitigate impacts by avoiding and minimizing harm and restoring wetlands if harmed. Wetlands mitigation can include compensatory mitigation when impacts are unavoidable.92 In other words, to compensate for unavoidable harm in one place, one mitigates elsewhere. Such compensatory mitigation can 89  Exxon Valdez Oil Spill Trustee Council, “Restoration Plan,” Exxon Valdez Oil Spill Trustee Council, accessed October 7, 2014, http://www.evostc.state.ak.us/index.cfm?FA=facts .restorationPlan. 90  Ocean Conservancy and the Gulf of Mexico University Research Collaborative, Marine Restoration Priorities & Science Principles: Results of the Expert Panel Workshop, Marine Restoration Workshop (April 24–25, 2012), St. Petersburg, Florida (2012). 91  “National Pollution Funds Center: The Oil Spill Liability Trust Fund (OSTLF),” United States Coast Guard, accessed October 7, 2014, http://www.uscg.mil/npfc/About_NPFC/ osltf.asp. 92  “Wetlands Compensatory Mitigation.”

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include r­estoration, ­enhancement, establishment, and in certain instances preservation.93 Restoration approaches are the first option in most circumstances, in part, because of the likelihood of success and the potential gains in resource functions.94 In the deep ocean, however, restoration may be of limited utility at best.95 Therefore, compensatory restoration may provide some measure of mitigation of deep sea activities. C Conclusion The special nature of the deep ocean, including lack of knowledge and the challenges of expanding knowledge, requires management systems that are precautionary and that advance knowledge generation. Examining the mitigation and restoration frameworks for the deep ocean provides an example of how these stewardship principles can be implemented. In particular, mitigation and restoration measures should include support for a research trust fund and protection as a form of restoration. With development of regulations for deep seabed mining underway in national and international waters, now is the time to take action to ensure that these new uses are developed in a way to protect and maintain the long-term health of the common heritage of mankind and the water column above it.

93   U.S. Environmental Protection Agency, “Guidelines for Specification of Disposal Sites for Dredged or Fill Material,” Code of Federal Regulations title 40, pt. 230 (2012): sec. 230.93, http://www.gpo.gov/fdsys/pkg/CFR-2010-title40-vol24/pdf/CFR-2010-title40-vol24sec230-93.pdf. 94  Ibid. 95  See, for example, Blaustein, “High-Seas Biodiversity,” 413.

Chapter 8

Submarine Communications Cables and Science: A New Frontier in Ocean Governance? Tara Davenport I Introduction Since 1850, when the first submarine telegraph cable was laid between Dover and Calais, submarine communications cables have become one of the most important uses of the world’s oceans. These fiber optic cables are made out of high quality glass fiber that is sheathed in plastic, and are often no bigger than a garden hose. Configured into a vast network on the seabed, they transmit massive amounts of data across oceans. The global submarine network forms the backbone of the Internet, e-mail, social media, phone and banking services, goods we now take for granted. Undoubtedly, “these unseen and unsung cables are the true skeleton and nerve of our world, linking our countries together in a fiber optic web.”1 From their inception, submarine communications cables have held a privileged place in international law, reflecting their status as an essential public good. Both the 1958 Geneva Conventions on the Law of the Sea2 and the 1982 United Nations Convention on the Law of the Sea3 place obligations on States to protect such cables, and recognize that all States have the freedom to lay, maintain and repair cables beyond territorial waters. These conventions were adopted at a time when submarine cables were not extensively relied upon for * Tara Davenport is a Global Associate at the Centre for International Law at the National University of Singapore (NUS), as well as an instructor at NUS. She is presently pursuing a Doctorate at Yale Law School. 1  Statement of Ambassador Vanu Gopala Menon in “General Assembly Concludes Annual Debate on Law of the Sea Adopting Two Texts Bolstering United Nations Regime Governing Ocean Space, its Resources Uses,” Press Release, 7 December 2010, available at http://www .un.org/News/Press/docs/2010/ga11031.doc.htm. 2  1958 Convention on the High Seas, adopted 29 April 1958, 499 UNTS 311 (entered into force 30 September 1962); 1958 Convention of the Continental Shelf, adopted 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). 3  United Nations Convention on the Law of the Sea, adopted 10 December 1982, UNTS 1833 (entered into force 16 November 1994) (UNCLOS).

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communications. The drafters could not have possibly foreseen the developments in science and technology that would facilitate the exponential growth in cables.4 Yet, they adopted a regime that arguably played an instrumental role in the development of such technology. In many ways, the development of submarine communications cables is a prime example of how law can create an environment conducive to technological developments for the benefit of the international community. In recent years, further advances in technology have led to new uses for submarine communications cables, namely for the collection of oceanographic data from the marine environment. First, scientists have utilized submarine communications cables to transport data in real time from ocean observatories that collect oceanographic data. Second, there has been interest in using submarine communications cables not to just transport data but also to collect data by placing scientific sensors on these cables. It is believed that the placement of sensors on cables will enable the collection of data on ocean temperature, salinity and water pressure that could be used for real-time monitoring of the oceans, climate change and disaster monitoring. In this regard, this chapter explores the legal and policy issues that arise from the use of submarine cables for both communications and marine data collection. Part II provides an overview of the development of submarine communications cables, and Part III discusses the legal regime governing submarine communications cables under UNCLOS. Part IV examines the legal regime governing marine data collection under UNCLOS. Part V discusses the use of cables for ocean observatories and climate monitoring and disaster detection. It examines the extent the use of cables can be considered marine scientific research (MSR) under UNCLOS, or other forms of marine data collection, and the legal and policy challenges arising from this classification. Lastly, Part VI offers some recommendations on how States, the scientific community and the cable industry can better address the regulatory challenges arising from the deployment of cables used for marine data collection.

4  However, the United States, the United Kingdom and Australia were in contact with their respective delegations during the negotiations of UNCLOS, and were aware that developments during negotiations could impact the future development of submarine cables. See Douglas Burnett, Tara Davenport and Robert Beckman, “Overview of the International Legal Regime Governing Submarine Cables,” Submarine Cables: The Handbook of Law and Policy, eds. Douglas Burnett, Robert Beckman and Tara Davenport (Netherlands: Martinus Nijhoff Publishers, 2014), 74–75.

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Submarine Communications Cables: An Overview

The genesis of submarine cables can be traced to the early part of the nineteenth century and the development of the electric cable, which uses electricity to transmit and receive information over significant distances.5 In 1850, the first submarine telegraph cable, consisting of copper wires and gutta percha, a rubber-like compound, was laid across the English Channel from Dover to Calais.6 While this cable did not last more than a few messages, the occasion marked the beginning of the submarine cable industry.7 Advances in laying technique, design and material meant that submarine telegraph cables were becoming increasingly durable. “. . . By the early 20th century, much of the world was connected by a network that enabled rapid communication and dissemination of information for government, commerce and the public.”8 Soon, however, submarine telegraph cables faced growing competition from radio telegraph technology that had greatly improved during World War I.9 Competition from radio coupled with the economic depression of the 1930s caused the submarine telegraph cable industry to steadily decline.10 The end of the submarine telegraph era, however, saw the emergence of a new submarine communications cable, namely the submarine telephone cable. In the 1930s, a polyethylene-encased cable with a copper coaxial core was developed that allowed multiple voice channels to be realized.11 In 1955– 56, two cables called TAT-1 were laid between Scotland and Newfoundland and thus began the age of submarine coaxial telephone communications.12 During the 1960s, a slew of technological developments in design and laying techniques enabled longer cables to be laid deeper in the ocean.13 However, as with submarine telegraph cables, submarine telephone cables soon faced 5   Stewart Ash, “The Development of Submarine Cables,” in Submarine Cables: The Handbook of Law and Policy, eds. Douglas Burnett, Robert Beckman and Tara Davenport (Netherlands: Martinus Nijhoff Publishers, 2014), 20. 6  Ibid. 7  Lionel Carter, Douglas Burnett, Stephen Drew, Graham Marle, Lonnie Hagadorn, Deborah Bartlett-McNeil, and Nigel Irvine, Submarine Cables and the Oceans—Connecting the World (United Kingdom: UNEP/ICPC/UNEP-WCMC, 2009) 12–13, available at: http://www .iscpc.org/publications/ICPC-UNEP_Report.pdf. 8  Ibid., 13. 9  Stewart Ash, “The Development of Submarine Cables,” 27–28. 10  Ibid. 11  Carter et al., Submarine Cables and the Oceans, 14. 12  Ibid., 14. 13  Ibid.

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c­ ompetition—this time from satellites, which had greater capacity and relatively lower cost.14 During the 1970s and 1980s, satellites displaced submarine cables and emerged as the primary means of telecommunications.15 The last submarine telephone cable was laid between India and the United Arab Emirates in 1986, bringing the submarine telephone cable era to an end.16 That was not, however, the end of the submarine cable story. In 1966, a discovery was made that would revolutionize telecommunications, albeit twenty years later. It was in this year that Dr. Charles Kao and Dr. George Hockham discovered that “a fiber of glassy material constructed in a cladded structure” had “important potential as a new form of communication medium . . . compared with existing coaxial and radio systems” due to its “large information capacity and possible advantages in basic material cost.”17 This milestone discovery facilitated the development of terrestrial fiber optic systems in the late 1970s, and in 1980 the first sea trial of a submarine fiber optic system occurred.18 In 1986, a series of fiber optic submarine cables were installed, ushering in the optical era.19 In 1988, the first trans-oceanic fiber optic cable linking the United States, United Kingdom and France was installed. From that year onward, submarine cables “started to outperform satellites in terms of the volume, speed and economics of data and voice communications.”20 This trend coincided with the development of the Internet in the mid-1980s. Taken together, these two technologies revolutionized telecommunications: cables carried large volumes of voice and data traffic with speed and security; the internet made that data and information accessible and usable for a multitude of purposes. As a result, communications, business, commerce, education and entertainment underwent radical change.21 Today, submarine fiber optic cables provide over 95 percent of international telecommunications.22 The global cable network is composed of an estimated 213 independent cable systems amounting to approximately 877,122 14  Stewart Ash, “The Development of Submarine Cables,” 32. 15  Carter et al., Submarine Cables and the Oceans, 15. 16  Stewart Ash, “The Development of Submarine Cables,” 32. 17  G. Hockham and C. Kao, “Dialectric-fibre Surface Waveguides for Optical Frequencies,” Proceedings of the Institute of Electrical Engineers 113.7 (1966), 115–1158. 18  Stewart Ash, “The Development of Submarine Cables,” 33. 19  Ibid., 34. 20  Carter et al., Submarine Cables and the Oceans, 16. 21  Ibid. 22  Ibid., 8.

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kilometers (km) of fiber optic cables.23 The majority of countries now rely on submarine cables for their communications needs,24 and as of mid-2012, only 21 nations and territories remain unconnected to the fiber network, although several of these states have projects to get connected currently underway.25 It is therefore unsurprising that the United Nations has described such cables as “critical communications infrastructure,” which is “vitally important to the global economy and the national security of all States.”26 III

The Legal Regime Governing Submarine Communications Cables

A Brief Overview Early on it was recognized that submarine cables were a public good that ought to be protected and regulated. From 1863 to 1913, the legal protection of submarine cables appeared on the agenda of seven international conferences.27 Between 1884 and 1982, the international community adopted four international instruments that addressed the rights and obligations of states vis-avia submarine cables. These are (1) the 1884 Convention for the Protection of Submarine Telegraph Cables (1884 Cable Convention);28 (2) the 1958 Geneva Convention on the High Seas; (3) the 1958 Convention on the Continental Shelf; and (4) UNCLOS. Broadly speaking, there are two aspects of submarine cables that the aforementioned conventions sought to regulate—namely the protection of 23  Douglas Burnett, Tara Davenport, and Robert Beckman, “Introduction: Why Submarine Cables?,” in Douglas Burnett, Robert Beckman, and Tara Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (Netherlands: Martinus Nijhoff Publishers, 2014), 2. 24  For example, it has been reported that the indirect economic costs of a fault in all the landing points in Australia would amount to USD$3,169 million dollars, mostly due to the loss of international internet traffic: See APEC Policy Support Unit, Economic Impact of Submarine Cable Disruptions (December 2012), 42, available at http://www.suboptic.org/ uploads/Economic%20Impact%20of%20Submarine%20Cable%20Disruptions.pdf. 25  Burnett, Davenport and Beckman, “Introduction: Why Submarine Cables?,” 2. 26  G A Res. 65/37A (7 December 2010). 27  United Nations Documents on the Development and Codification of International Law: Supplement to American Journal of International Law, Vol 41, No. 4 (October 1947), available at http://untreaty.un.org/ilc/documentation/english/ASIL_1947_study.pdf. 28  Convention for the Protection of Submarine Telegraph Cables, adopted 14 March 1884, TS 380 (entered into force 1 May 1888) (1884 Cable Convention). As of 2 April 2013, there were 40 State Parties to the Cable Convention.

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s­ ubmarine cables from damage and the right to conduct cable laying, repair and maintenance activities. The 1884 Cable Convention is a stand-alone convention dealing solely with the protection of submarine telegraph cables. In contrast, the 1958 Geneva Conventions on the High Seas and the Continental Shelf (“the 1958 Geneva Conventions”) and UNCLOS are broad, comprehensive oceans treaties that address various aspects of law of the sea. These conventions cover both the protection of submarine cables (based on specific provisions in the 1884 Cable Convention)29 and the freedom to lay, repair and maintain such cables. As the treaty that was adopted later in time, UNCLOS is assumed to be the applicable legal regime governing submarine cables.30 Further, this chapter focuses on the freedom to lay, repair and maintain cables rather than their protection. Definition of Submarine Cable under UNCLOS In the majority of the relevant provisions in UNCLOS, the generic phrase “submarine cable” is used. This term is not defined in UNCLOS. Article 113 of UNCLOS, however, specifically proscribes the obstruction of “telegraphic or telephonic communications” and the injury of a high-voltage power cables. Certainly, “the objective, purpose and interpretation of [. . .submarine cables] and subsequent agreements strongly suggest that the term refers to cables used to transport voice, data and Internet traffic between system end points.”31

29  Articles II, IV and V of the 1884 Convention were incorporated into Articles 27, 28 and 29 of the 1958 High Seas Convention and Articles 113, 114 and 115 of UNCLOS. 30  U NCLOS has received widespread acceptance and presently has 166 Parties. See United Nations Treaty Collection, available at http://treaties.un.org/Pages/ViewDetailsIII .aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (last accessed 5 December 2013). For parties to both the 1958 Geneva Conventions and UNCLOS, the latter supersedes the former (See Art. 311 (1) UNCLOS). Further, most of the UNCLOS provisions on submarine cables are based on the provisions found in the 1958 High Seas Convention which codified existing customary international law. See R.R Churchill and A.V Lowe, The Law of the Sea, 3rd ed. (United Kingdom: Manchester University Press, 1999), 203. These provisions are consequently binding on non-parties. 31  Kent Bressie, Using Submarine Cables for Climate Monitoring and Disaster Warning: Opportunities and Legal Challenges (United States: International Telecommunications Union, 2012), 21.

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The High Seas Since the laying of the first submarine cable in 1850, the freedom to lay submarine cables in the high seas has been unchallenged,32 and this freedom subsequently was affirmed in the 1958 Convention on the High Seas33 and UNCLOS.34 Article 87 of UNCLOS states that the freedom of the high seas includes the freedom to lay submarine cables and pipelines, subject to Part VI on the continental shelf.35 Article 112(1) of UNCLOS reinforces this provision by stipulating “all States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.” While not explicitly mentioned, there is no doubt that survey, repair and maintenance activities, which are essential components of cable operations, are included in the freedom to lay cables in the high seas.36 32  The 1884 Cable Convention dealt only with the protection of submarine cables and not the freedom to lay cables because “it was evident that freedom of use was conceded by all and that the real concern was to adopt measures for protecting cables from other, sometimes physically incompatible uses of the ocean.” See Myres McDougal and William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven and London: Yale University Press, 1962), 781. 33  In 1950, the International Law Commission (ILC) first recognized the principle that all States were entitled to lay submarine cables on the high seas: See Report of the International Law Commission on its Second Session, Official Records of the General Assembly, Fifth Session, Supplement No. 12 (A/1316), UN Doc No. A/CN.4/34 (1950) at 384. Indeed, at the second session of the ILC, it was observed that there was no need to explicitly mention the freedom to lay cables in any convention on the topic as this freedom had never been questioned. However, it was ultimately agreed that that it was important to include it in any convention on the law of the sea: See comments of Judge Hudson and Mr. Spiropolous, Yearbook of the International Law Commission, Volume I, UN Doc/A/CN.4/Ser.A/1950 (1950) at 199. Accordingly, Article 27 of the ILC Draft Articles states that freedom of the high seas comprises, amongst other things, the freedom to lay submarine cables and pipelines and article 61 recognizes that “all States shall be entitled to lay telegraph, telephone or high-voltage power cables and pipelines on the bed of the high seas.” See also the 1958 High Seas Convention, Articles 2 and 26(1). 34  See Article 87(1)(c) and Article 112(1) of UNCLOS. 35  This is in recognition of the fact that for cables which are laid on the extended continental shelf beyond 200 nm, the continental shelf regime on submarine cables and not the high seas regime will apply. 36  Article 112(2) of UNCLOS states that Article 79(5) (found in Part VI on the continental shelf) applies to cables laid in the high seas. Article 79(5) states that “possibilities of repairing existing cables or pipelines shall not be prejudiced.” This reinforces the position that the freedom to lay also includes the freedom to repair.

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The freedom, however, is not unlimited. Article 112(2) requires States to exercise due regard for cables already in position, and to not prejudice the possibility of repairing existing cables or pipelines. Further, the freedom to lay submarine cables must be exercised with due regard for the interests of other States in their exercise of other high seas freedoms (such as fishing and navigation), and also with due regard for the rights under UNCLOS with respect to activities in areas beyond national jurisdiction (“the Area”).37 In the latter case, the International Seabed Authority (ISA) regulates exploration and exploitation of mineral resources in the Area38 and the International Cable Protection Committee (ICPC), an industry based organization, and the ISA have signed a memorandum of understanding to enhance cooperation on the use of the Area. The agreement includes exchange of information on cable routing, prospecting and exploration.39 At this juncture, it warrants note that UNCLOS affords the freedom to lay cables to “all States.” In reality, private companies rather than governments generally own, operate, and repair cables. The authoritative Virginia Commentary on UNCLOS notes that the term “all States” should not be read too restrictively, as “in practice, many submarine cables and pipelines are privately owned and are laid by corporations or other private entities. The term therefore refers to the right of States or their nationals to lay cables or pipelines.”40 The Exclusive Economic Zone (EEZ) and the Continental Shelf During the negotiations of UNCLOS, the long-recognized freedom to lay submarine cables on the high seas had to be adapted to take into account the 37  Article 87(2), UNCLOS. 38  See Part XI generally. 39   See Memorandum of Understanding between the International Cable Protection Committee and the International Seabed Authority signed on 15 December 2009, Annex to Note by the Secretariat at the 16th Session, 26 April to 7 May 2010, International Seabed Authority, available at www.isa.org.jm/files/documents/EN/16Sess/Assembly/ISBA-16AINF1.pdf. 40  Myron Nordquist, Neil Grandy, SN Nandan and Shabtai Rosenne, eds. United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Leiden: Martinus Nijhoff, 1995) at 264. However, Professor Rainer Lagoni argues that under general principles of the law of treaties, the freedom to lay cables is only exercisable by private cable owners if it is recognized in national legislation. This is because only a self-executing provision of an international agreement can create a right or obligation for a private entity. Article 112 of UNCLOS addressing States and not private entities is not a self-executing provision and do not apply to cable owners directly. See Rainer Lagoni, Legal Aspects of Submarine High Voltage Direct Current (HVDC) Cables (Transaction Publishers: New Jersey, 1998) at 12–13.

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i­nterests of coastal States and other States in the newly established maritime zones of the continental shelf and the EEZ.41 Both of these maritime zones are areas in which the coastal State was not afforded sovereignty, but instead was entitled to certain sovereign rights to the living and nonliving resources in the zone that could impact the freedom to lay cables and vice versa. Under the continental shelf regime in Part VI of UNCLOS, a coastal State has sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources.42 These rights include “mineral resources and other-non-living resources of the seabed and subsoil.” The continental shelf is defined as: . . . the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.43 The EEZ regime in Part V of UNCLOS, on the other hand, recognizes the rights of the coastal State to claim a 200 nautical mile (nm) EEZ, within which coastal States may exercise sovereign rights for the exploration and exploitation of both living and non-living resources of “the waters superjacent to the seabed, and of the seabed and subsoil.”44 A coastal State also has jurisdiction in its EEZ as provided for in UNCLOS over artificial islands, installations, and structures related to its sovereign rights and jurisdiction; marine scientific research; and the protection and preservation of the marine environment.45 Both the EEZ and the continental shelf regime give the coastal State two distinct legal bases for coastal State rights over the seabed within 200 nm. However, the negotiators of UNCLOS recognized the need to harmonize the content of the legal interest within two separate regimes that overlap geographically.46 41  While the existence of the continental shelf pre-dated UNCLOS and was recognized in the 1958 Continental Shelf Convention, the definition of the continental shelf changed significantly during the negotiations of UNCLOS. 42  Article 77(1), UNCLOS. 43  Article 76, UNCLOS. 44  Article 56(1)(a), UNCLOS. 45  Article 56(1)(b), UNCLOS. 46  Malcolm Evans, Relevant Circumstances and Maritime Delimitation (United Kingdom: Clarendon Press, 1989), 36.

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Accordingly, Article 56 (3) of UNCLOS provides that the rights set out in the EEZ with respect to the seabed and subsoil are to be exercised in accordance with Part VI on the continental shelf [emphasis added]. The provisions on submarine cables in Part V and Part VI, while not adopted in identical terms, essentially result in the same rights and obligations with respect to submarine cables, at least in areas within 200 nm of the coastline. In situations where a coastal State is entitled to a continental shelf beyond 200 nm (i.e. an “extended” or “outer” continental shelf), the continental shelf regime solely applies.47

Freedom to Lay Submarine Cables in the EEZ/Continental Shelf under UNCLOS UNCLOS affirms that all States have the freedom to lay submarine cables in the EEZ and continental shelf. In the EEZ, Article 58 provides: 1. In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention (emphasis added). In short, Article 87 provides that freedoms of the high seas include the “freedom to lay submarine cables and pipelines, subject to Part VI [on the continental shelf].”48 Part VI also reinforces this right on the continental shelf by stipulating in Article 79(1) that “all States are entitled to lay submarine cables and pipelines on the continental shelf in accordance with the provisions of this article.” The laying of submarine cables also includes the right to repair and maintain them, as these activities logically are “other internationally lawful uses of the sea related to these freedoms . . . such as those associated with the 47  The waters above the outer continental shelf are high seas, but Article 87(1)(c) recognizes that the freedom to lay cables in the high seas is subject to Part VI on the continental shelf. 48  The Virginia Commentary on UNCLOS notes that the high sea freedoms exercised in the EEZ by other States are the same as those incorporated from Article 87, provided that they are compatible with the other provisions of UNCLOS. The difference is that these freedoms are subject to measures related to the sovereign rights of the coastal State in the EEZ and they are not subject to such measures or those rights beyond that zone: See Myron Nordquist, Satya Nandan, Shabtai Rosenne, (eds), The United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (Leiden: Martinus Nijhoff, 1993), 565.

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o­ peration of . . . submarine cables” in the EEZ. With regard to the continental shelf, Article 79(1) does not explicitly refer to repair or maintenance, although the rest of Article 79 assumes that the right to lay submarine cables includes the right to maintain and repair them.49 Similarly, cable route surveys also are an “internationally lawful use of the sea related to the operation of submarine cables” as they are essential to the laying of cables. It is worthwhile to explore the obligations of “due regard” in more detail. First, States or companies conducting cable operations in the EEZ or continental shelf must have due regard for cables or pipelines already in position, and they must not prejudice the possibilities of repairing existing cables or pipelines.50 Second, such States (or companies or their agents) must have due regard to the rights and duties of the coastal State in its own EEZ51 and on the continental shelf, to the extent the latter overlaps with the EEZ. The rights and duties of the coastal State are enumerated in Article 56 and they also appear in other UNCLOS provisions, namely, rights over the exploration and exploitation of: living resources; nonliving resources; other economic resources, such as the production of energy from the water, currents, and winds; jurisdiction over artificial islands, installations, and structures; jurisdiction over marine scientific research; and more limited jurisdiction over the protection and preservation of the marine environment and the consequent duties that accompany such jurisdiction. Third, States conducting cable operations “shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this part.”52 This provision raises the question as to what extent may a coastal State regulate cable operations in the EEZ/ continental shelf.

Coastal States’ Rights to Regulate Cable Operations in the EEZ/ Continental Shelf under UNCLOS UNCLOS has substantive provisions on the type of regulations coastal states may adopt as well as procedural obligations that must be complied with if such regulations are adopted.53 First, Article 79(2) of UNCLOS states:

49  Article 79(2) of UNCLOS refers to the “laying or maintenance” of submarine cables and Article 79(5) refers to “repairing” existing cables. 50  Article 79(5), UNCLOS. 51  Article 58(3), UNCLOS. 52  Article 58(3), UNCLOS. 53  Tara Davenport, “Submarine Communications Cables and Law of the Sea: Problems in Law and Practice,” Ocean Development and International Law 43.3 (2012), 203.

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Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. Article 79(2) appears to distinguish between submarine cables and pipelines. It is only in respect of pipelines that a coastal State is permitted to impose reasonable measures for (1) the exploration of the continental shelf; (2) the exploitation of its natural resources and (3) the prevention, reduction and control of pollution from pipelines.54 In comparison, a coastal State can only subject cables to reasonable measures for the (1) exploration of the continental shelf and (2) the exploitation of its natural resources. This difference in how the two are treated appears to be in recognition of the belief that submarine cables do not cause pollution.55 Second, Article 79(3) states that the “delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.” Interestingly, in the 1956 International Law Commission Draft Articles, the equivalent article stated: The coastal State is required to permit the laying of submarine cables on the seabed of its continental shelf but in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil, it may impose conditions concerning the route to be followed.56 During the 1958 Geneva Conferences, a Venezuelan amendment for Article 70 would have expressly provided the coastal State with the right to regulate cable routes, but the proposal was rejected because it failed to provide any standards for the regulations to be made.57 At the Third United Nations Conference on 54  The provision for prevention, reduction and control of pollution from pipelines did not exist in the equivalent article (Article 4) of the 1958 Continental Shelf Convention, and was added during the negotiations of UNCLOS III. See Nordquist et al., United Nations Convention on the Law of the Sea: A Commentary, 912. 55  See generally Lionel Carter, Douglas Burnett and Tara Davenport, “The Relationship between Submarine Cables and the Marine Environment,” in Douglas Burnett, Robert Beckman and Tara Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (Netherlands: Martinus Nijhoff, 2014), 179–213. 56  Article 70, ILC Draft Articles With Commentaries in Yearbook of the International Law Commission, Volume II, Doc A/3159 (1956), 299. 57  Marjorie Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,” American Journal of International Law 52 (1958), 643.

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the Law of the Sea, which led to the adoption of UNCLOS, China similarly proposed that delineation of the course for laying submarine cables on the continental shelf by a foreign State be subject to the consent of the coastal State. This proposal was also rejected by the Conference.58 Thus, delineation of the course of submarine cables is not subject to the consent of the coastal State. It has been argued, however, that the coastal State can still impose conditions for the delineation of cable routes pursuant to the right to impose “reasonable measures” for the exploration of the continental shelf, and the exploitation of its natural resources as set out in Article 79(3).59 For example, the coastal State could require that the route avoid areas in which offshore exploration/exploitation is taking place, or areas that are intensively fished. Third, Article 79(4) provides that nothing in Part VI “affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea.” This provision reflects the fact that in its territorial sea and land territory, coastal States have sovereignty over submarine cables and can impose conditions for their operation. The purpose of the rule is to ensure that: The restrictions in article 79 on the right of a coastal State to regulate cables on the continental shelf [where it has sovereign rights, but not sovereignty] does not affect the more extensive rights of the coastal State to impose additional conditions on cables which enter its territory or territorial sea [where it has sovereignty].60 It has been argued that Article 79(4) allows a coastal State to impose additional conditions on its continental shelf if such cables enter its territorial sea, such as in the case of non-transiting cables. In other words, the freedom to lay cables only applies to cables that transit the continental shelf and . . . cables that land in the coastal State, and therefore require the coastal State’s permission to enter the territorial sea, can be subject to conditions the coastal State may impose for allowing the cable to enter its ­territory. 58  Nordquist et al., United Nations Convention on the Law of the Sea: A Commentary, 911. 59  Rainer Lagoni, Legal Aspects, 20. 60  Robert Beckman, “Submarine Cables—A Critically Important but Neglected Area of the Law of the Sea,” paper presented at the 7th International Conference of the International Society of International Law on Legal Regimes of Sea, Air, Space and Antarctica, New Delhi, 15–17 January 2010, 7, available at cil.nus.edu.sg/wp/wp-content/uploads/2010/01/ Beckman-PDF-ISIL-Submarine-Cables-rev-8-Jan-10.pdf.

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These conditions may thus cover the entire segment of the cable located on the continental shelf of the coastal State involved (or even area beyond).61 The counter-argument to this point is that such an interpretation would defeat the purpose of allowing the coastal State to subject the laying and repair of submarine cables on the continental shelf only to “reasonable measures” for the exploration of the continental shelf and the exploitation of its natural resources as provided for in Article 79(2).62 Apart from the substantive rights that coastal States have in relation to the regulation of submarine cables, UNCLOS also imposes certain procedural obligations on coastal States when exercising their rights to regulate submarine cables. First, Article 79 (2) requires these measures be “reasonable.” It is not clear what is meant by “reasonable,” as “no more definite criterion than that of reasonableness could be established for the measures which coastal states may take, for the reason that it was impossible to foresee all situations that might arise in the application of this article.”63 The second procedural obligation is that in the EEZ (and on the continental shelf to the extent it overlaps with the EEZ), a coastal State must have due regard for the rights and duties of other States, and shall act in a manner compatible with the provisions of UNCLOS.64 Third, on the continental shelf (and in the EEZ to the extent it overlaps with the continental shelf), a coastal State must not exercise its rights in a manner that will infringe or result in “any unjustifiable interference” with navigation and other rights and freedoms of other states, as provided for in UNCLOS.65

Submarine Communications Cables under the Jurisdiction of the Coastal State in the EEZ/Continental Shelf UNCLOS provides for an exception to the freedom to lay submarine cables in the EEZ and on the continental shelf. Under Article 79(4), submarine cables “used in connection with the exploration of its continental shelf or e­ xploitation of

61  Lionel Carter and Alfred H.A Soons, “Marine Scientific Research Cables,” in Submarine Cables: The Handbook of Law and Policy, eds. Douglas Burnett/Robert Beckman/Tara Davenport (The Netherlands: Martinus Nijhoff, 2014), 335. 62  Beckman, “Submarine Cables—A Critically Important but Neglected Area,” 7. 63  Statement by the US Representative during the Eight Session of the ILC cited in Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,” 642. 64  Article 56(2), UNCLOS. 65  Article 78(2), UNCLOS.

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its resources or the operations of artificial islands, installations and structures under its jurisdiction” are under the jurisdiction of the coastal State. The coastal State’s jurisdiction over submarine cables under Article 79(4) is a direct consequence of its sovereign rights over the resources of the continental shelf and EEZ, as well as over other activities for the economic exploitation and exploration of the zone (such as the production of energy from water, currents and winds),66 and its jurisdiction over the establishment and use of artificial islands, installations and structures used for such activities.67 This provision would apply to submarine communications and power cables used to provide communications for oil and gas platforms and wind farms. Territorial Seas Pursuant to their sovereignty over territorial seas,68 archipelagic waters69 and straits used for international navigation,70 coastal States, archipelagic States and strait States clearly have extensive authority to regulate ships engaged in cable operations, such as those vessels surveying cable routes and the laying, repairing and maintenance of such cables in these maritime zones. Coastal States will usually require the whole scope of permits, licenses and environmental conditions to be met before permission is given to deploy a cable in these maritime zones.71 With regard to archipelagic waters, there is an express obligation on archipelagic States to “respect existing submarine cables laid by other States and passing through its waters without making a landfall,” and to permit maintenance and replacement of such cables upon receiving due notice.72 The term “laid by other States” refers not only to cables laid by States, but also to those 66  Article 56(1)(a) and Article 77 of UNCLOS. 67  Article 56(2), Article 60 and Article 80 of UNCLOS. 68  Part II, UNCLOS. 69  Part IV, UNCLOS. 70  Part III, UNCLOS. 71   See, e.g., Keith Ford-Ramsden, Tara Davenport, “The Manufacture and Laying of Submarine Cables,” in Submarine Cables: The Handbook of Law and Policy, eds. Douglas Burnett, Robert Beckman, and Tara Davenport (Netherlands: Martinus Nijhoff Publishers, 2014), 140–146 in relation to the regulations imposed on communications cables in territorial waters. 72  Article 51(2) UNCLOS. This provision was first introduced at the negotiations of the Third UN Conference on the Law of the Sea to take into consideration the concerns of States that the introduction of the concept of an archipelagic State would unduly hinder access to existing submarine cables in waters previously not under the sovereignty of States. See Nordquist at al, United Nations Convention on the Law of the Sea 1982: A Commentary,

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laid by their nationals.73 Given the passage of time, this provision has little practical utility since cables existing at the time UNCLOS entered into force are likely to have been retired. New cables that plan to transit archipelagic waters should obtain permission of the archipelagic state.74 IV

The Legal Regime Governing Marine Data Collection Under UNCLOS

The term “marine data collection,” although not mentioned in UNCLOS and admittedly a term without “legal content,” has been employed by some U.S. government officials and American academics as “an umbrella term under which to consider the various collection activities.”75 These collection activities can be divided into five categories:76 (1) marine scientific research; (2) survey activities; (3) collection of marine meteorological data; (4) operational oceanography; and (5) exploration and exploitation of natural resources. This chapter focuses only on marine scientific research, collection of marine meteorological data and operational oceanography, as they relate to the issues of submarine cables used for marine data collection. Marine Scientific Research (MSR) In some ways, it is axiomatic why research in the ocean is important, however, a few points warrant note. First, as observed by Professor Soons, “among the most pressing needs for marine scientific research probably are those related to the preservation of the marine environment.”77 For example, ocean research facilitates understanding of the effect of known pollutants and identifies unrecognized ones, and it also provides means and methods for mitigating or 449. It only applies to existing cables, and the laying of new cables is dependent on the consent of the archipelagic State. See Churchill and Lowe, Law of the Sea, 126. 73  Nordquist et al., United Nations Convention on the Law of the Sea 1982, 474. 74  Burnett, Davenport and Beckman, “Overview of the International Legal Regime,” 76. 75  J. Ashley Roach, “Defining Scientific Research: Marine Data Collection,” in Law, Science and Ocean Management, eds. Myron Nordquist, Ronan Long, Tomas Heidar and John Norton Moore (Netherlands: Martinus Nijhoff Publishers, 2007), 542. 76  Note that Roach and Smith state that there are only four categories of marine data collection and includes the collection of marine meteorological data as part of operational oceanography: J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, Third Edition (Netherlands: Martinus Nijhoff Publishers, 2012), 413. 77  Alfred H.A Soons, Marine Scientific Research and the Law of the Sea (The Hague: TMC Asser Instituut, 1982), 14.

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removing pollutants from the sea.78 Second, the “rational management of the living resources of the sea depends increasingly on the availability of scientific information.”79 Third, research related to ocean currents and the interaction of the ocean with the atmosphere significantly enhances our understanding of climate and weather.80 Last, fundamental marine scientific research, regardless of its potential applications, has intrinsic value by adding to the sum of human knowledge about the world. And even the most abstract research nourishes teaching, which is the source of the capacity for further scientific work by future generations.81 Historically, the freedom of discovery, exploration and scientific research was considered a natural consequence of the principle of mare liberum, or freedom of the seas.82 Until the mid-twentieth century, because coastal State jurisdiction was limited, “marine scientists had retained a freedom of movement within the natural environment” and they “had little difficulty in collecting their data and samples and making their observations when and where they wished.”83 After World War II, however, there was a greater interest in marine research and how it could be utilized to further resource utilization and military purposes.84 This trend was accompanied by increasing coastal State regulation of marine scientific research, which was recognized in the 1958 Geneva Conventions on the High Seas and Continental Shelf, and UNCLOS. The Third United Nations Conference on the Law of the Sea that led to the adoption of UNCLOS “was faced with much stronger demands for controls over marine scientific research than the Geneva Conference had been.”85 The developing countries felt that the rights over resources granted to them under the EEZ regime would be undermined if they did not have control over the research that may be related to resource exploitation in those waters.86 Further, there was a deeply-held suspicion that the major maritime powers were often 78  Ibid. 79  Ibid. 80  Ibid., 15. 81  Ibid., 16. 82  Montserrat Gorina-Ysern, An International Regime for Marine Scientific Research (United States of America: Transnational Publishers, 2003), 211. 83  Soons, Marine Scientific Research, 1. 84  Churchill and Lowe, The Law of the Sea, 401. 85  Ibid., 403. 86  Ibid.

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conducting espionage under the guise of research.87 Unsurprisingly, the scientific community expressed great opposition to further restrictions on scientific research, which they felt was done for the benefit of all mankind.88 The developed countries were responsible for the majority of marine scientific research conducted at the time (as well as now), and they argued against further restriction. Arguably, the developed States lost this political battle.89 Definitions of Marine Scientific Research From a scientific perspective, research in the oceans encompasses several different scientific disciplines. Biology is concerned with the living organisms of the sea.90 Chemistry addresses the chemical properties of the seawater.91 Physics is concerned with the physical characteristics of seawater like optics, acoustics and density and all forms of motion in the ocean such as currents and tides. Geology and geophysics deals with the study of sediments and topography of the ocean floor as well as the deeper structure of the ocean floor and its physical properties.92 Meteorology is concerned with the interactions and mutual influence between the oceans and the atmosphere.93 Hydrography is concerned with mapping of the seafloor, depth soundings and other such aspects related to navigation of the ocean.94 Finally, oceanography concerns the holistic study of the marine environment i.e. “the scientific studies of ocean, its boundaries and bottom topography, its physics and chemistry and of its marine organisms including the interrelations and interactions.”95 Given the broad categories of research described above, it is arguably unsurprising that UNCLOS does not define marine scientific research. Obtaining agreement on a definition proved to be very difficult during negotiations. There remained “fundamental differences of opinion as to the question whether it would be possible at all to develop objective criteria which could be used to distinguish between marine scientific research and resource exploration.”96 Various definitions had been put forth throughout the negotiations of 87  Ibid. 88  Ibid. 89  Ibid. 90  Florian H.Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law, 12. 91  Ibid., 13. 92  Alfred Soons, Marine Scientific Research, 6. 93  Wegelein, Marine Scientific Research, 15. 94  Ibid. 95  Wegelein, Marine Scientific Research, 17. 96  Soons, Marine Scientific Research, 199.

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UNCLOS,97 with the Chairman of the Third Committee including the following definition: “Marine scientific research means any study or related experimental work designed to increase man’s knowledge of the marine environment.”98 At the fourth session of the conference in 1976, however, it was agreed during informal discussions to abandon the definition of marine scientific research, or at least not to consider the question at the time.99 Attempts by the United States to reintroduce the definition of “marine scientific research” were unsuccessful.100 Instead, negotiations focused on the rules that were to govern marine scientific research.101 Ultimately, negotiators felt that a definition of the term “marine scientific research” was not necessary, as the substantive provisions of UNCLOS clearly established the meaning intended.102 According to Professor Soons, marine scientific research has a clear ordinary meaning: Scientific research commonly being regarded as an investigation of a question, problem or phenomenon conducted according to the rules and principles of science, marine scientific research may be regarded as such investigation concerned with the (natural phenomena of the) marine environment.103 Roach and Smith observed that marine scientific research is the general term most often used to describe those activities undertaken in the ocean and coastal waters to expand scientific knowledge of the marine environment and its processes.104 High Seas Like submarine cables, the freedom to conduct marine scientific research is recognized as a freedom of the high seas, subject to Parts VI (Continental Shelf) and XIII (Marine Scientific Research).105 To the extent a coastal State has an extended continental shelf entitlement underneath the high seas, the 97  George K. Walker, Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (Netherlands: Martinus Nijhoff Publishers, 2012), 241–245. 98  Soons, Marine Scientific Research, 123. 99  Ibid., 123–124. 100  Ibid., 123. 101  Ibid. 102  Ibid., 124. 103  Ibid., 124. 104  Roach and Smith, Excessive Maritime Claims, 415. 105  Article 87(1)(f), UNCLOS. Also see generally Soons, Marine Scientific Research, 219–224.

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c­ ontinental shelf regime will apply, and the provisions on MSR on the continental shelf in Part XIII will apply. Of course, this freedom is not unlimited. It shall be exercised with due regard for the interests of other States in their exercise of the freedom of the high seas and due regard for the rights with respect to activities in the Area.106 UNCLOS provides that all States have the right to engage in research in the Area107 so long as it is “carried out exclusively for peaceful purposes and for the benefit of mankind as a whole, in accordance with Part XIII.108 States who carry out research in the Area are also required to “effectively disseminate the results of research and analysis when available, through the [International Seabed Authority] or other international channels when appropriate.”109 Exclusive Economic Zone/Continental Shelf In contrast to the freedom granted in respect of submarine cables, coastal States “have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention”110 and marine scientific research in these zones must be conducted with the consent of the coastal state.111 Yet developing countries wanted to ensure that any research related to the exploration and exploitation of natural resources was subject to an absolute consent regime. Other States were concerned that this rule would unduly impede the benefits that marine scientific research could bring. A consent regime was proposed for all categories of marine scientific research.112 Consistent with the objective of the negotiators of UNCLOS to find a compromise between two opposing camps, however, the Convention distinguished between so-called applied scientific research and pure scientific research.113 While neither term is mentioned in UNCLOS, both are understood ­generally. Applied research is research for which the coastal State may exercise their discretion to withhold consent.114 This category covers research projects that are of “direct significance for the exploration and exploitation of natural 106  Article 87(2), UNCLOS. 107  Article 256, UNCLOS. 108  Article 143(1), UNCLOS. 109  Article 143(3) (c), UNCLOS. 110  Article 246(1), UNCLOS. 111  Article 246(2), UNCLOS. 112  Soons, Marine Scientific Research, 160–161. 113  Ibid.; Churchill and Lowe, The Law of the Sea, 405–406. 114  Article 245(5), UNCLOS.

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resources;”115 involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment116 or the construction, operation or use of artificial islands, installations and structures referred to in Articles 60 and 80.”117 Pure research, on the other hand, is research that is carried out “exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind.”118 For pure research, consent must in ‘normal circumstances’ be given.119 Further, coastal States are required to “establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably.”120 States wishing to conduct both pure and applied research in other States’ EEZs or on their continental shelves are subject to a number of obligations. First, they have an obligation to provide certain information on the research project to the coastal State six months in advance, including the nature and objectives of the project, the method and means to be used, the area in which the project is to be conducted, the dates for the project, the name of the sponsoring institution and the extent to which the coastal State can participate in or be represented in the project.121 Second, they must ensure the right of the coastal State, if it so wishes, to participate or be represented in the marine scientific research project.122 Third, they must provide the coastal State at its request with preliminary reports as soon as practicable, with the final results and conclusions after the completion of the research,123 access to all data and samples from the marine scientific research project124 and if requested an assessment of such data, samples and research results.125 Fourth, they must ensure that the research results are made internationally available through appropriate national or international channels as soon as practicable, unless the results are of direct significance for the exploration and exportation of natural resources.126 Fifth, they must inform the coastal 115  Article 246(5)(a), UNCLOS. 116  Article 245(5)(b), UNCLOS. 117  Article 246(5)(c), UNCLOS. 118  Article 246(3), UNCLOS. 119  Article 246(3), UNCLOS. 120  Article 246(3), UNCLOS. 121  Article 248, UNCLOS. 122  Article 249(1)(a), UNCLOS. 123  Article 249(1)(b), UNCLOS. 124  Article 249(1)(c), UNCLOS. 125  Article 249(d), UNCLOS. 126  Articles 249(1)(e) and 249(2), UNCLOS.

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State immediately of any major change in the research program.127 Sixth, unless otherwise agreed, they must remove the scientific research installations or equipment once the research is completed.128 Failure to comply with these obligations entitles the coastal State to suspend the research or require its cessation.129 It should be noted that in the case of applied research, the list of conditions described above are without prejudice to the conditions that the coastal State may impose for applied research in the EEZ or continental shelf.130 For pure research, it would appear that the coastal state is not entitled to lay down any conditions other than those mentioned.131 Territorial Waters In the territorial sea, Article 245 provides that: Coastal States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea. Marine scientific research therein shall be conducted only with the express consent of and under the conditions set forth by the coastal State. By virtue of the fact that archipelagic States also have sovereignty over their archipelagic waters, they also have the authority to regulate marine scientific research akin to that outlined in Article 245. UNCLOS also explicitly provides that foreign vessels exercising the right of innocent passage in the territorial sea,132 and archipelagic sea lanes passage in archipelagic waters,133 cannot undertake research or survey activities. Deployment of Scientific Research Installations or Equipment Under Article 258, the deployment and use of any type of scientific research installations or equipment in any area of the marine environment shall be subject to the same conditions described above for the conduct of marine scientific research in any such area. UNCLOS does not define what is meant by 127  Article 249(1)(f), UNCLOS. 128  Article 249(1)(g), UNCLOS. 129  Article 253, UNCLOS. 130  Article 249(2), UNCLOS. 131  Article 246(1) and 249(2), UNCLOS. 132  Article 19(2)(j), UNCLOS. 133  Article 54, UNCLOS.

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“installations or equipment,” although the term “installation” is used in other parts of UNCLOS.134 The Virginia Commentary notes that the term “installation” was understood by the Drafting Committee during the negotiations of UNCLOS to include artificial islands and structures.135 Further, the phrase “any type” must be interpreted to include both mobile and fixed installations.136 Likewise “equipment” is also not defined although Wegelein notes that: The word equipment usually denotes items needed for a particular purpose; installation, in contrast, would denote a facility or a grouping of facilities, located in the same vicinity, for a particular function or ­purpose. The difference between installations and equipment would therefore appear to consist of a time and size element: while installations are intended to remain in place for an extended period of time or even permanent, equipment has a connotation of being quickly deployed and removed in the course of a single experiment; and installations may consist of a number of various parts with a variety of functions while equipment is only intended for one specific objective.137 It should be noted that Article 258 refers to scientific research installations and equipment generally—it covers both installations and equipment not only for marine scientific research but for other scientific research as well.138 It basically means that non-marine scientific research (i.e., research not related to the marine environment) that involves the deployment or the use of installations or equipment in the marine environment is subject to exactly the same regime as marine scientific research as described above.139 Essentially, in the territorial sea and archipelagic waters, the deployment and use of research installations and equipment will require the consent of the coastal State and such installations/equipment will be subject to the 134  For example, Article 60(1) provides that the coastal State has exclusive jurisdiction over “artificial islands, structures and installations.” Article 147 in Part XI on the Area refers to “installations” only. Articles 194(3)(c) and (d) in Part XII on the Marine Environment refer to “installations” and “devices” and Article 209(2) refers to “installations, structures and devices.” Articles 258–262 in Part XIII on Marine Scientific Research refers to “installation and equipment.” See Wegelein, Marine Scientific Research, 135–136. 135  Myron Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary Volume II, 584. 136  Wegelein, Marine Scientific Research, 137. 137  Ibid. 138  Soons, Marine Scientific Research, 230. 139  Ibid., 231.

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j­urisdiction of the coastal State.140 The deployment of research installations and equipment in the high seas is not subject to the consent of the coastal State and instead will be subject to the jurisdiction of the researching State.141 In the EEZ/continental shelf, the situation is not as straightforward. The deployment of research installations and equipment in these maritime zones would be subject to coastal State consent under Article 246 (1) and (2) of UNCLOS. The first question is whether it is subject to the consent regime for applied research or the consent regime for pure research. Professor Soons argues that when such installations and equipment are deployed for applied research, the coastal State may refuse consent in its discretion and if it is for pure research, the coastal State must grant consent in normal circumstances.142 However, it appears that if the deployment of research installations and equipment used for pure research involves the construction and operation of “artificial islands, installations or structures or structures referred to in Articles 60 and 80,” they will be subject to the discretionary powers of the coastal State reserved for applied research.143 Furthermore, the coastal State would have jurisdiction over such artificial islands, installations or structures.144 In this case, the exact type of research that these research installations and equipment are used for is irrelevant. On the other hand, where the research installations and equipment do not take the form of “artificial islands, installations or structures referred to in Articles 60 and 80,” and they are used for pure research, then the coastal State cannot normally withhold its consent.145 Examples of such equipment would be floating buoys and other floating objects. Ultimately, “there would appear to be no provision giving the coastal State jurisdiction over such installations and equipment once consent has been given.”146 Indeed, it is argued that the question of who would have jurisdiction over such objects is not clearly set out in UNCLOS and would therefore be subject to Article 59 as an unattributed right in the EEZ.147 140  Churchill and Lowe, The Law of the Sea, 413. 141  Soons, Marine Scientific Research, 231; Churchill and Lowe, The Law of the Sea, 414. 142  Soons, Marine Scientific Research, 231. 143  Churchill and Lowe, The Law of the Sea, 413. 144  Article 60(2) states that the coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures. 145  Churchill and Lowe, The Law of the Sea, 413. Conversely, if it is used for applied research, coastal States can withhold their consent. 146  Ibid. 147  Ibid., 414.

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Marine Meteorological Data During the negotiations of UNCLOS, the World Meteorological Organization (WMO) was very concerned that the marine scientific research regime would result in restrictions on its activities. The members of the WMO carried out “operational activities such as the collection of meteorological information from voluntary observing ships, boys, other ocean platforms, aircraft and meteorological satellites,” and “research activities, both meteorological and oceanographic.”148 Adequate marine meteorological data coverage of ocean areas including areas in the EEZ is indispensable for the issue of timely and accurate storm warnings for the safety of life at sea and the protection of life and property in coastal and offshore areas.149 Accordingly, the WMO adopted a resolution and then submitted it to the delegates at the UNCLOS negotiations that stated: . . . the legal provisions specified in the informal composite negotiating text which govern marine scientific research will not result in restrictions to operational meteorological and related oceanographic observation activities carried out in accordance with international programs such as World Weather and the integrated Global Ocean Station System.150 In response to this, in 1980 after the completion of the negotiations of the MSR articles, the Chairman all the Third Committee stated: . . . in his opinion, the provisions on marine scientific research would not create any difficulties and obstacles hindering adequate meteorological coverage from ocean areas, including areas within the exclusive economic zone, carried out both within the framework of existing international programs and by all vessels, since such activities had already been recognized as routine observations and data collecting which were not covered by Part XIII in the negotiating text. Furthermore, they were in the common interest of all countries and had undoubted universal significance.151 148   Resolution 16 (Cg-VIII) adopted by the World Meteorological Organization at its Eighth Congress at Geneva in April/May 1979, available at http://legal.un.org/ diplomaticconferences/lawofthesea-1982/docs/vol_XII/a_conf-62_80.pdf. 149  Ibid. 150  Ibid. 151   Oral Report of the Chairman of the Third Committee to the Third Committee at its 46th Meeting, 20 August 1980 (Official Records of the United Nations Third Conference on the

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Operational Oceanography Operational oceanography can be defined as an activity of systematic and longterm routine measurements of the seas and oceans and atmosphere, and their rapid interpretation and dissemination.152 It consists of the rapid transmission of observational data to data assimilation centers, which then use numerical forecasting models to process the data. The outputs from the models are used to “generate data products” which include “warnings (of coastal floods, ice and storm damage, harmful algal blooms and contaminants, etc.), electronic charts, optimum routes for ships, prediction of seasonal or annual primary productivity, ocean currents, ocean climate variability etc.153 As observed by Roach and Smith, operational oceanography allows countries to:

• monitor, understand and predict weather and climate; • describe and forecast the state of the ocean, including living resources; • improve management of marine and coastal ecosystems and resources; • mitigate damage from natural hazards and pollution; • protect life and property on coasts and at sea; and • enable scientific research.154 The data collection platforms and instruments used in operational oceanography vary. Data about the “lower atmosphere and sea surface is collected from ships, balloons, visual observations, aircraft and satellites, while data about the water is obtained from satellites, moored buoys, drifting buoys, profiling boats and XBTs (expendable bathythermographs).”155 In recent years, the use of these data collection instruments has been the subject of controversy, with some States considering them subject to the MSR regime, and others suggesting they fall under the rubric of marine meteorological data. Argo Floats are one example of such instruments. The Argo Project is the deployment of approximately 3,000 active freefloating ocean monitoring devices which are used to “collect a large database of ocean signals related to climate change and provide in situ satellite Law of the Sea Volume XIV, pages 102–103, 1982), Report of the Chairman of the Third Committee (UN Document A/CONF. 62/L.61, 25 August 1980, Official Records of the Third United Nations Conference on the Law of the Sea, Volume XIV, pages 133–134, 1982). 152   See “What is Operational Oceanography?,” EuroGOOS, http://www.eurogoos.org/ content/content.asp?menu=0090000_000000_000000. 153  Ibid. 154  Roach and Smith, Excessive Maritime Claims, 448. 155  Ibid., 443.

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o­ bservations of the Earth System as a whole, while protecting life and property, predicting climate variations and severe weather, collecting, storing, and distributing data and information freely to all interested users in near-real time.”156 The majority of leading research States, including the United States, view operational oceanography, including the Argo Project, as akin to marine meteorology and hence, expressly exempted from the MSR regime.157 Other States, such as Peru and Argentina, consider operational oceanography as a type of MSR, and therefore subject to coastal State consent.158 These States were also especially concerned that Argo Floats would be gathering important information relating to natural resources.159 However, it was argued that imposing the MSR regime onto Argo Floats was highly impractical: The scientific value of the measurements would be significantly impaired if drifters have to be retrieved before they enter foreign waters and not be rereleased before permission is obtained; conversely, the exact date of entry can usually not be predicted (as a revelation of the determinants is the purpose of the experiment to begin with), neither which foreign waters it may stray into.160 The Advisory Body of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (IOC/ABE-LOS)161 attempted to deal with this issue when it issued non-binding Guidelines for the Legal Regulation of Argo Profiling Float Deployments on the High Seas in 2008. The Guidelines, inter 156  Aurora Mateos and Montserrat Gorina-Ysern, “Climate Change and Guidelines for Argo Profiling Float Deployment on the High Seas,” American Society of International Law, Insights, 14.8 (10 April 2010), available at http://www.asil.org/insights100408.cfm. 157  J. Ashley Roach, “Defining Scientific Research: Marine Data Collection,” 562. 158  Mateos and Gorina-Ysern, “Climate Change and Guidelines.” 159  Ibid. 160  Wegelein, Marine Scientific Research, 116. 161   The Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO) was established in 1960 and is the UN Body for ocean science, ocean observatories, ocean data and information exchange. See IOC Website, available at http://ioc-unesco.org/. In 1997, the IOC Assembly set up a new standing subsidiary, the Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS). Each Member State of the IOC can appoint two members, preferably one with scientific expertise and one with legal expertise. See Alfred Soons, “The Legal Regime of Marine Scientific Research,” in Law, Science and Ocean Management, eds. Myron Nordquist, Ronan Long, Tomas Heidar and John Norton Moore (Netherlands: Martinus Nijhoff Publishers, 2007), 150–151.

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alia, require prior notification if Argo floats enter into the EEZ of IOC Member States and they also give coastal States some control over the public distribution of sensitive information. However, the Guidelines faced much opposition, and indeed caused so much controversy that some believed ABE-LOS should be disbanded.162 The debate about the legal regime applicable to operational oceanography has yet to be resolved. V

Scientific Applications of Submarine Communications Cables

Cabled Ocean Observatories Overview Ocean observatories can be described as “suites of instruments and sensors with long-term power supplies and permanent communications links that can feed data to scientific laboratories and the Internet.”163 They have been described as the “future of ocean science:”164 Measurements and models from the exploratory, mapping and sampling, phase of oceanography that began in the nineteenth century have resulted in growing recognition of the time-dependent complexity of processes that occur within the oceans. Future studies of the dynamics of the ocean and earth require new tools to complement traditional, shipbased, expeditionary science. As a result, the ocean sciences are entering a new stage in which scientists will observe the ocean as a system using in situ robotic instruments and sensor webs. Routine, adaptive measurement of episodic events is vital to improved understanding of dynamic natural phenomena that span large ranges of space and time. This emerging research paradigm will be enabled through the construction of innovative facilities called ocean observatories, which are the infrastructure that provides unprecedented amounts of power and twoway bandwidth to access and control instrument networks and platforms in the oceans. The real time information flow from ocean observatories and the ability to access archived data will lead to novel scientific insights and new discoveries. In addition, ocean observatories will create 162  See Mateos and Gorina-Ysern, “Climate Change and Guidelines.” 163  See Woods Hole Oceanographic Institution, Ocean Observatories, https://www.whoi .edu/main/ocean-observatories. 164  See “Why Build a Cabled Observatory?,” Monterey Bay Aquarium Research Institute, http://www.mbari.org/mars/general/why.html.

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e­ducation-outreach capabilities that will significantly impact public understanding of the ocean sciences.165 In recent years, ocean observatories have increased dramatically, and in 2012, there were estimated to be at least 190 coastal and deep-ocean observatories around the world.166 There are different types of observatories. At one end of the spectrum, there are modest oceanographic moorings or buoyed observatories that “measure a limited number of parameters such as water temperature, salinity and current velocities.”167 The mooring is essentially: . . . a bottom weight and subsurface buoy linked together by a line that supports instruments capable of recording information on internal data loggers or transmitting information back to shore via satellite as in the case of DART buoys.168 At the other end of the spectrum are complex cabled observatories that can “undertake multiple experiments as well as measuring physical, biological and chemical changes in the waters and seabed for up to twenty-five years.”169 Cabled observatories use both fiber optic communications cables and submarine power cables to transport data to shore in real time.170 Cabled observatories can provide much greater amounts of power and bandwidth when compared to buoyed observatories.171 Further, while cabled observatories are expensive ($10 million for a 50 km long, deep-water installation near a coastline or $150 m for a multi-node regional cabled observatory measuring 3000 km), for deep-water installations, cable observatories are equivalent in price to buoyed observatories when life cycle cost is taken into account.172

165  Alan D. Chave, Gary Waterworth, Andrew R. Maffei, and Gene Massion, “Cabled Ocean Observatory Systems,” Marine Technology Society Journal (2004), 31–43, available at http://www.whoi.edu/cms/files/87_121665.pdf. 166  Lionel Carter and Alfred Soons, “Marine Scientific Research Cables,” in Submarine Cables: The Handbook of Law and Policy, eds. Douglas Burnett, Robert Beckman and Tara Davenport (Netherlands: Martinus Nijhoff Publishers, 2014), 328. 167  Carter et al., Submarine Cables and the Oceans, 51. 168  Carter and Soons, “Marine Scientific Research Cables,” 329. 169  Ibid. 170  Ibid. 171  Chave et al., “Cabled Ocean Observatory Systems.” 172  Ibid.

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There are cabled observatories around the world, some operational and some in development.173 A paradigm example of a large-scale cabled observatory is NEPTUNE (North-East Pacific Time-series Undersea Network Experiments), Canada. NEPTUNE Canada is currently the largest operational observatory.174 It uses “812 km long fiber optic/power cable that interconnects five nodes occupying sites from the continental shelf at 20–100 m water depth to the abyssal plain in 2,660 m.”175 This positioning permits researchers to operate instruments remotely and receive data at their home laboratories anywhere on the globe in real time.176 NEPTUNE Canada has, among other things, enabled the deep-water detection of the 2010 Chilean tsunami and its refraction approach to the Vancouver Island margin.177 The Ocean Observatories Initiative (OOI) is another such large-scale project. It is funded by the National Science Foundation, and aims to construct a “networked infrastructure of science-driven sensor systems to measure the physical, chemical, geological and biological variables in the ocean and seafloor,” greater knowledge of which is “vital for improved detection and forecasting of environmental changes and their effects on biodiversity, coastal ecosystems and climate.”178 The OOI consists of several different scales of observatories, including a regional cabled observing platform, which “will wire a single region in the Northeast Pacific Ocean with a high speed optical and high power grid.”179 Legal and Policy Issues The more difficult issues relating to the use of these devices and instruments occur in the EEZ/continental shelf, and thus the discussion will focus on these maritime zones. The first question is what is the applicable legal regime for submarine cables that are transporting data (as opposed to collecting it), and that has been collected by other instruments/structures in the EEZ/continental shelf? The answer is far from clear and there are various options.

173  See Woods Hole Oceanographic Institution, Regional Cabled Observatories, https://www .whoi.edu/page.do?pid=24396. 174  See NEPTUNE Canada, www.neptunecanada.com. 175  Carter and Soons, “Marine Scientific Research Cables,” 329. 176  See Ocean Networks Canada, http://www.oceannetworks.ca/about-us. 177  Carter and Soons, “Marine Scientific Research Cables,” 331. 178  See Oceans Observatories Initiative, About, http://oceanobservatories.org/about/. 179  See Oceans Observatories Initiative, OOI Components, http://oceanobservatories.org/ design/ooi-components/.

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First, one could argue that the applicable legal regime for such cables is the submarine cable regime, and specifically that such cables are subject to the freedom to lay cables in the EEZ/continental shelf. As mentioned above, there is no definition of submarine cables, although they are generally understood to transmit data used for telecommunications.180 There is nothing per se in UNCLOS that provides that submarine cables used to transport oceanographic data would not fall under this regime. Indeed, Soons and Carter have argued that the “freedom to lay and maintain submarine cables transiting the continental shelf of a coastal State applies also to cables transporting oceanographic data collected elsewhere in the marine environment.”181 Second, one could also argue that such submarine cables are cables “constructed or used in connection with the . . . operations of artificial islands, installations and structures under its jurisdiction” under Article 79 (4). As mentioned above, observatories could be considered “research installations” (which are undefined under UNCLOS), and hence come under provision for “the deployment and use of any type of scientific research installations or equipment” pursuant to Article 258. Such observatories would thus be subject to the MSR Regime and would need coastal State consent in the EEZ/continental shelf.182 On this argument, the coastal States could regulate/impose conditions on submarine cables used for observatories. It should be noted that the basis of coastal State regulation in this case is not that submarine cables are MSR, but that they are servicing installations/structures that are used for MSR. Third, one could argue that submarine cables used for observatories fall under the MSR Regime. This argument is made on the basis that the cables themselves are either “installations” or “structures” pursuant to Article 246(5), and are hence subject to the coastal State’s discretionary consent. However, one could argue that UNCLOS clearly distinguishes between “submarine cables” on the one hand, and “installations” and “structures” on the other in various parts of UNCLOS, and this approach therefore implies that submarine cables cannot be considered “installations” or “structures.” Another possible 180  See discussion in Part III. 181  Carter and Soons, “Marine Scientific Research Cables,” 335. 182  Such ocean observatories would seem to fall under the “pure research” regime, and consent must be given in normal circumstances. However, as noted in Part IV, if such observatories are considered to fall within “artificial islands, installations and structures,” it would be considered applied research and subject to the discretionary consent of the coastal State regardless of the type of research being carried out. If, on the other hand, ocean observatories are considered “equipment,” it would be pure research which requires consent to be given in normal circumstances. The coastal State would also not have jurisdiction over such “equipment.”

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argument is that submarine cables could be considered to be “equipment” under Article 258 of UNCLOS.183 On the other hand, it must be borne in mind that submarine cables are not conducting MSR per se (they are not collecting data), but are merely transporting it. Therefore, cables normally would not be classified as MSR. Fourth, one could also take the view that observatories constitute operational oceanography that is specifically carved out from the MSR regime. On this view, the installation of the observatory would not be subject to coastal State consent and jurisdiction and hence, submarine cables would likewise not be considered MSR and the coastal State would have no legal basis to regulate. State practice in this regard appears to be inconsistent. For example, in the United States, the installation of fiber optic cables for the Monterey Accelerated Research System (MARS) observatory within the Monterey Bay National Marine Sanctuary faced a slew of regulatory obstacles by the administering agency, the National Oceanic and Atmospheric Administration (NOAA). First, following the terrorist attacks against the United States in 2001, the route of the cable had to be changed because of the security concerns of the U.S. Coast Guard.184 Second, the Monterey Bay National Marine Sanctuary had initially only required a minimal environmental assessment, which led the relevant stakeholders to believe that the permitting process would be very straightforward.185 Because of an issue with cable installation in another marine sanctuary186 in the United States, however, NOAA decided to prohibit all future cable installations in marine sanctuaries.187 These events led to the MARS Project having to “undergo one of the most demanding, expensive permitting processes in the history of cable installations, involving 24 months, $1 million, and

183  Anastasia Strati, Ministry of Foreign Affairs, Greece, “The Law –Existing Rules and New Challenges” ITU 2011, Green Standards Week Workshop on Submarine Cables for Ocean Monitoring and Disaster Warning: Science, Engineering, Business and Law (Rome, 9 Sept 2011) available at www.itu.int/dms_pub/itu-t/oth/06/5B/T065B0000050041PPTE.ppt. 184  Carter and Soons, “Marine Scientific Research Cables,” 337. 185  Monterey Bay Research Initiative, History of the MARS observatory, http://www.mbari .org/mars/general/history/history1.htm. 186  Tyco International had installed a telecommunications cable for a customer in the Olympic Coast National Marine Sanctuary, and one of the cables that was supposed to be buried in a trench was actually lying on the ocean floor, next to the empty trench; the situation could not be remedied because the owner had gone bankrupt. Ibid. 187  Ibid.

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16 permits from 16 different Federal, state, and county agencies.”188 While not explicitly clear, it would appear that the United States treated cables used for observatories as being under its jurisdiction, and thus subject to its regulation. The basis of such regulation is unclear. Is the legal basis for such regulation done pursuant to the rule for communications cables used for the operation of installations or structures, or is it MSR? On the other hand, others in the U.S. Government consider observatories as a form of operational oceanography and not subject to coastal State regulation.189 The outcome for the Monterey cable could have more to do with the fact that the location of the cabled observatory is in a marine sanctuary, which is subject to a higher degree of protection than other areas in the EEZ.190 At the very least, it appears there is a lack of coherence in the U.S. approach. On the other hand, the NEPTUNE Canada observatory was not subject to any legal requirement for permits or environmental impact assessments.191 However, before the NEPTUNE Observatory was built, there was an independent evaluation and a consultation with environmental regulators, indigenous peoples, fishers and other stakeholders.192 This approach allowed the relevant stakeholders to be aware of the benefits and potential detrimental impact of the NEPTUNE Observatory, and facilitated changes to the project that mitigated detrimental effects.193

Submarine Cables for Ocean/Climate Monitoring and Disaster Detection Lack of Monitoring on Deep Ocean and Seafloor Climate change has undoubtedly emerged as one of the most significant environmental problems of this generation. The ramifications of climate change are wide-ranging and serious, and include higher temperatures, rising

188  Ibid. See also National Ocean and Atmospheric Administration, Office of National Marine Sanctuaries, “Policy and Permit Guidance for Submarine Cable Projects,” available at http://sanctuaries.noaa.gov/library/national/cable_guidelines.pdf. 189  See discussion in Part IV on Operational Oceanography. 190  For example, the United States does not require consent to be given to conduct MSR in US EEZ unless the MSR is conducted within a national marine sanctuary or other marine protected area. See J. Ashley Roach and Robert Smith, Excessive Maritime Claims, 427. 191  Carter and Soons, “Marine Scientific Research Cables,” 337. 192  Ibid. 193  Ibid.

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sea-­levels, an increased risk of drought, fire and floods, stronger storms, and threats to both human life and animal life.194 The oceans plays a “major role in the longer changes in the climate system and changing patterns of ocean circulation set up much of the regional variability in climate observed on land.”195 The oceans also plays “an important role as a sink for the heat building up in earth’s system, it acts as an important sink for the increasing Carbon Dioxide resulting from fossil fuel burning and is responding to warming and glacier melting with a slow, inexorable rise in sea level.”196 Monitoring the temperature, currents, salinity, carbon content and flux of the oceans help scientists understand and monitor climate change.197 There are a wide variety of instruments to monitor the oceans, although they are limited to the surface and upper ocean.198 For example, satellites can only monitor surface quantities, such as surface height, wind stress and temperature.199 Research vessels are able to obtain detailed measurements of water temperature and composition at a certain depth but are spatially limited to a small segment of the sea and rarely on a regular schedule.200 Similarly, Argo Floats are only able to measure the temperature and salinity of the ocean above 2,000 m and cannot go below that.201 Essentially our knowledge of the deep ocean is limited, and oceanographers are hampered in monitoring waters at the deep ocean floor due to their vast extent and volume.202 The high pressure at abyssal depths and intricate topography of the seafloor means that there are very few appropriate instruments available.203

194  See The Nature Conservancy, Climate Change: Threats and Impacts, http://www.nature .org/ourinitiatives/urgentissues/global-warming-climate-change/threats-impacts/. 195   See Woods Hole Oceanographic Institution, Ocean and Climate Change Institute, http:// www.whoi.edu/occi. 196  Ibid. 197  National Oceanic and Atmospheric Administration, How NOAA monitors the Climate, http://www.noaa.gov/features/02_monitoring/climate.html. 198  Rhett Butler, Using Submarine Cables for Climate Monitoring and Disaster Warning: Strategy and Roadmap (International Telecommunications Union, 2012), 5, available at http://www.itu.int/dms_pub/itu-t/oth/4B/04/T4B040000150001PDFE.pdf. 199  Yuzhou You, Using Submarine Communications Networks to Monitor the Climate, ITU-T Technology Watch Report (November 2010), 1, available at http://www.itu.int/dms_pub/ itu-t/oth/23/01/T23010000110003PDFE.pdf. 200  Ibid. 201  Ibid. 202  Ibid. 203  Ibid.

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The same issue is prevalent in the detection of natural hazards, such as earthquakes and tsunamis. Tsunamigenic earthquakes are monitored either on land or by buoys at sea, and there are very few sensors on the seafloor near these earthquake zones.204 Traditional detection systems such as the DART (Deep-ocean Assessment and Reporting of Tsunamis Buoys) are located at the surface of the ocean and gather data from tethered pressure and temperature sensors located on the seabed.205 The information is transmitted to shore via satellite. These instruments were deployed in Indonesia after the giant tsunami of 2004. Failures of these buoys, however, coupled with vandalism and high maintenance costs, have undermined the effectiveness of such instruments.206 Submarine Communications for Deep Ocean Monitoring Soons and Carter have observed that “the need for improved detection of distant deep-water tsunami in areas of the ocean with few monitoring sites, plus a growing requirement for better information on the deep ocean’s response to global warming, have led researchers to seek new solutions.”207 A solution, which has been enthusiastically embraced by scientists, is the integration of submarine communications cables, an extensive network of which is already laid on the seafloor, with real-time global climate and disaster-monitoring systems. This fusion involves equipping submarine communications with scientific sensors for climate monitoring and disaster reduction.208 These scientific sensors could collect key measurements relevant to climate change and disaster detection such as temperature, pressure, salinity/conductivity, seismic, hydroacoustic and cable voltage.209 The scientific sensors would be placed within the repeaters found on submarine cables every 60 to 100 km.210 Repeaters equipped with scientific sensors have been described as “green repeaters.”211 One study notes, “[e]quipping each repeater with temperature, 204  Butler, Using Submarine Cables, 7. 205  Carter and Soons, “Marine Scientific Research Cables,” 326. 206  Ibid., 326–327. 207  Ibid., 327. 208  Stephen Lentz and Peter Phibbs, Using Submarine Cables for Climate Monitoring and Disaster Warning: Engineering Feasibility Study (International Telecommunications Union, 2012), available at http://www.itu.int/dms_pub/itu-t/oth/4B/04/T4B040000170001PDFE.pdf. 209  Butler, Using Submarine Cables, 8. 210  Repeaters are used to amplify the optical signals over long distance http://www.xtera .com/en-US/Solutions/Submarine/UnrepeateredCableSystems. Also see You, Using Submarine Communications Networks to Monitor the Climate, 4. 211  Lentz and Phibbs, Using Submarine Cables for Climate Monitoring and Disaster Warning: Engineering Feasibility Study, 1.

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depth and conductivity sensors would allow continuous time series data to be collected across entire ocean basins. Data from such a system could provide valuable insight into issues such as climate variation, tsunami propagation and sea level change.”212 There are three ways in which submarine cables can be integrated into real-time global climate and disaster monitoring systems. First, they can be attached to out-of-service cables. Cables usually have a life span of 20–25 years. A large quantity of first-generation fiber optic cables were retired as they became outdated, and before the end of their lifespan.213 Such cables could be re-activated purely for the collection of data for climate monitoring and disaster detection. In addition to using retired cables in-situ, retired cables could be moved to scientifically important locations such as the Southern Ocean, where there are few existing cables.214 Second, sensors and related components could be attached to in-service communications cables. A “slight modification of these repeaters—plugging in only one pressure sensor into their housing, for example—could turn the single purpose telecommunication network into multi-purpose, real-time global tsunami and sea-level rise monitoring network.”215 The repeaters on existing cables, however, have not been constructed in a way so as to maximize their full potential for climate monitoring/disaster detection and hence, there are limitations for scientific usage.216 The third option is the development of a new generation of multi-purpose cables. This approach entails redesigning the repeaters that are integrated with built-in sensors that would enable climate monitoring and disaster detection.217 Submarine cable technology has already developed such that the new type of repeater can be assembled into one cable body but with two separate functions without interfering with another.218 Kordahi notes: In the past, undersea cable networks focused on data transmission between landmasses. As the need for better communications and data 212  Ibid., 2–3. 213  You, Using Submarine Communications Networks to Monitor the Climate, 2. 214  Ibid., 3–4. 215  Yuzhou You, “Multipurpose Submarine Cable Repeaters: Required to Monitor Climate Change,” Submarine Telecoms Forum 54 (November 2010), 8, available at http://www .subtelforum.com/issues/STF_54.pdf. 216  Ibid., 4. 217  Ibid., 10. 218  Ibid.

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transfer involves, networks are being envisioned that can go beyond the single-purpose fiber and power management, incorporating layers of various individual networks supported by a single infrastructure. A cable that once transmitted only telecommunications data between continents could also relate data from various oral and gas platforms all from a scientific research institutes underwater observatory.219 The second and third options involve cables “that would transport commercial telecommunications traffic while also gathering and transmitting real-time data regarding ocean temperature, salinity, and water pressure by using scientific sensors.”220 These cables are considered dual-purpose submarine cables with telecommunications and marine data collection capabilities, and are referred to as “telecom-marine data cables.”221 In 2012, TE Subcom, a telecommunications company, Scripps Institution of Oceanography at University of California San Diego and NOAA’s Pacific Marine Environmental Laboratory announced that they were exploring a partnership to integrate scientific instruments with thousands of miles of seafloor communication cables across the Pacific Ocean.222 The data collected will be open and available to the global scientific community. The initial project will focus on a cable route spanning 12,950 km from Sydney to Auckland and across the Pacific Ocean to Los Angeles. Law and Policy Issues The law and policy issues for submarine cables used for climate/disaster monitoring arise primarily in the EEZ/continental shelf. The regimes for submarine cables, MSR and operational oceanography are the same in territorial waters (subject to coastal State jurisdiction) and in the high seas (not subject to coastal State jurisdiction). In the EEZ/continental shelf, on the other hand, the regimes come into direct conflict. With regard to the first option—the re-use of retired cables—the cables would be considered single purpose cables, only used for the collection and 219  Maurice E. Kordahi, “New Tools for Multilayered Undersea Telecommunication Networks,” Sea Technology Magazine 51.7 (2010). 220  Bressie, Using Submarine Cables for Climate Monitoring and Disaster Warning: Opportunities and Legal Challenges, 1. 221  Ibid., 1–2. 222  Mario Aguilera, “Cables Spanning Pacific Ocean Seafloor to Give Ocean Science a New Edge,” 27 February 2012, YC San Diego News Center, available at csdnews.ucsd.edu/press release/cables_spanning_pacific_ocean_seafloor_to_give_ocean_science_a_new_edge/.

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transport of oceanographic data. There are three possible classifications of such cables. First, these single purpose cables could be subject to the submarine cable regime and specifically the freedom to lay cables. That said, it has been argued that the collection of oceanographic data “cannot be interpreted as inherent to the traditional freedom of laying of submarine cables” or “as an international use of the seas associated with the operation of submarine cables,” as provided for in article 58(1) of UNCLOS with respect to the EEZ.”223 This situation is in contrast to cables used for observatories, which are only transporting oceanographic data and hence could conceivably be subject to the submarine cables regime. Second, these single purpose cables could be deemed as MSR. Carter and Soons argue that cables actually collecting oceanographic data on the continental shelf of the coastal State will be subject to the legal regime for MSR and hence, coastal State consent will have to be obtained before such cables can operate there.224 Such cables fall under the “deployment and use of any type of scientific research installations or equipment in any area of the marine environment” under Article 258 of UNCLOS. These cables could certainly be considered “pure research” because they are used “exclusively for peaceful purposes, and in order to increase scientific knowledge of the marine environment for the benefit of all mankind.” Carter and Soons, however, suggest that “their laying comes within the scope of the coastal states discretionary power to grant or withhold consent, since such cables could be regarded as “structures” as referred to in Article 246(5) because of their semi-permanent character” (i.e. applied research).225 On the other hand, if such cables are considered “research installations or equipment” that do not take the form of “artificial islands,” installations” or “structures” under Article 246(5), States should not normally withhold their consent to their deployment. Third, these single purpose cables could also be considered operational oceanography and hence not subject to the consent of the coastal State. In sum, the applicable regime is not clear, and this situation creates uncertainties for coastal State regulators and scientists alike.

223  Anastasia Strati, “The Law–Existing Rules and New Challenges.” 224  Carter and Soons, “Marine Scientific Research Cables,” 335. 225  Ibid.

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Because they “do not always fit neatly within the jurisdictional categories established in international law,”226 dual telecom-marine data cables create even more serious legal and regulatory issues. First, there is the issue of the applicable legal regime. Some commentators have argued that UNCLOS does not classify dual-purpose telecom-marine data cables definitively as MSR.227 The lack of agreement on the meaning of MSR, and the absence of any textual support that such dual-purpose cables are MSR, means that such cables cannot be definitively classified as MSR.228 Are such cables subject to the submarine cable regime because they also perform their traditional function of transporting regular telecommunications? In this regard, although submarine cables are not defined in UNCLOS, “there is also no textual or international-custom support for the view that submarine cable rights and freedoms extend to any and all functionality added or built into a cable beyond traditional telecommunications or to any device or equipment connected to or powered by submarine cables.”229 Lastly, could these cables be classified as operational oceanography not subject to the MSR regime? Again, because of the disagreement on whether operational oceanography is considered MSR, there is no clear definitive answer to this question. Cables used for marine data collection are in a legal limbo. This uncertainty, however, has policy implications for the cable industry, the scientific community and coastal States. First, the cable industry is rightly concerned that dual-purpose cables will be regulated by coastal States as MSR, and that this regulation erodes fundamental submarine cable rights and freedoms.230 This concern must be seen in the context of increasing regulation of submarine communications cables in the EEZ/coastal States including lengthy, complicated and opaque permitting requirements that undermine the integrity of the submarine cable network.231 The cable industry believes that dual-purpose cables pose an obstacle to an effective submarine cable system. 226  Bressie, Using Submarine Cables for Climate Monitoring and Disaster Warning: Opportunities and Legal Challenges, 2. 227  Ibid., 20. 228  Ibid. 229  Ibid., 21. 230  Ibid., 20. 231  For a more comprehensive discussion of the various permitting requirements imposed by some coastal States for the laying of cables in the EEZ/continental shelf, see Keith Ford-Ramsden and Tara Davenport, “The Manufacture and Laying of Submarine Cables,” 146–151.

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Second, there is also concern that using such dual-purpose cables may undermine the reliability of the communication network. For example, “the sensors integrated within the basic repeater design must meet standards for ruggedness for cable deployment and repair by ships.”232 Similarly, what will happen if the green repeaters are damaged? Will cable owners and operators have the obligation to repair them if the transmission of communications data is not affected?233 Third, the accessibility and availability of data collected by such cables raises another issue. Theoretically, the cable system owners own scientific sensors in the cable repeaters, and the data that comes from these sensors. At the same time, from a scientific point of view, the availability and accessibility of such data is critical, especially if it is used for climate and disaster monitoring. Indeed, under Article 249(e), States undertaking research in the EEZ/ continental shelf of the coastal State must ensure that such research results are made internationally available through appropriate national or international channels as soon as practicable. It has been suggested that “governments and international organizations will need to work with the cable system owners to determine a commercially equitable way to distribute the sensor data for societal benefit,”234 which in real terms is likely to be a difficult exercise. In addition, a major concern of coastal States is that such data will relate to the national security of the coastal State or to the exploration and exploitation of its natural resources.235 Cable owners will certainly want an exception to the accessibility and availability of the data, if it relates to these areas. In September 2011, the International Telecommunications Union (ITU), the Intergovernmental Oceanographic Commission of UNESCO and the World Meteorological Organization (WMO) conducted a workshop on “Submarine Cables for Ocean/Climate Monitoring and Disaster Warning: Science, Engineering, Business and Law.” The event resulted in the adoption of a call to action to establish a Joint Task Force composed of world renowned experts from science, engineering, business and law, to explore the potential of a submarine climate monitoring and disaster warning system.236 They have involved the cable industry and commissioned a report on the legal challenges that such cables face. In 2012, the ITU also issued a report titled, “Using Submarine Cables for Climate Monitoring and Disaster Warning: Strategy and Roadmap,” which 232  Butler, Using Submarine Cables, 12. 233  Ibid. 234  Ibid. 235  Anastasia Strati, “The Law–Existing Rules and New Challenges.” 236   See ITU, ITU/WMO/UNESCO IOC Joint Task Force, http://www.itu.int/en/ITU-T/ climatechange/task-force-sc/Pages/default.aspx.

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recommends that in order to eliminate concerns by submarine cable owners and cable companies about MSR restrictions within the EEZ/continental shelf, dual-purpose submarine communications cables should be confined to the high seas and outside of the continental shelf and EEZ, where both MSR and the laying of cables are recognized freedoms. The report also notes, however, that because “many scientific entities have focused activities within coastal waters and it would be beneficial to find a way for using submarine telecommunications cables to aid the scientific endeavors,” including dispensation of requirements by the coastal State. VI Conclusions: The Way Forward It is evident from the above discussion that the scientific application of submarine communications cables is mired in legal uncertainty. However, the critical question is whether these concerns should “be reasons for declining to pursue any deployment and operation of such cables, particularly in jurisdictions or maritime zones where deployment or operation raises few legal or regulatory issues.”237 Bressie argues that there will of course be hard cases where coastal States regulate dual-purpose cables as MSR—this will tend to occur in States that take a hardline on MSR in their EEZ and on their continental shelf. There will also, however, be easy cases, such as deployments in States that recognize the concept of operational oceanography or that do not regulate MSR in their EEZ/continental shelves, such as the United States.238 This approach, and the resolution of the ITU to begin with deployments in the high seas, appears to avoid the difficult questions. Nonetheless, persistent conflicts will inevitably take a toll on the overarching regime that UNCLOS established. More than thirty years after its adoption, questions are inevitably raised about the ability of UNCLOS to withstand new challenges brought on by scientific and technological developments. The issue of the lack of clear definitions of several critical terms has consistently reared its head, and has inevitably exacerbated conflicts between coastal States and user States.239 In particular, one cannot help but ask whether the ­negotiators erred in not defining marine scientific research. After all, the 237  Kent Bressie, Using Submarine Cables for Climate Monitoring and Disaster Warning: Opportunities and Legal Challenges, 2. 238  Ibid., 22–23. 239  Several issues have arisen because of the lack of definition of MSR. For example, several coastal States have argued that all forms of marine data collection, including all forms of surveys should be regulated as MSR. Another example is the Argo Floats described above.

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vagueness in the definition has arguably been used by coastal States to maximize their control over activities in sui generis maritime zones such as the EEZ and continental shelf, which have always been perceived in quasi-territorial terms.240 Not only does this situation accentuate the traditional dichotomy between all States and coastal States, it has had a detrimental effect on technological development that could genuinely “increase the scientific knowledge of the marine environment for the benefit of all mankind.” Given the vast disagreement that exists on the topic, an agreement on the definition of marine scientific research through a new convention, or some other agreement, is unlikely to be forthcoming anytime soon. Does UNCLOS itself contain mechanisms to resolve such issues? One solution may be to consider submarine communications cables used for marine data collection as one of those issues on which UNCLOS has not attributed rights or jurisdiction to the coastal State or to other States within the EEZ. Article 59 of UNCLOS provides that if a conflict arises between the interests of the coastal State and any other State in a situation of unattributed rights: the conflict 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. If there are rights that are not covered by the rights of either the coastal State or the rights of other States, there is no presumption in favor of either the coastal State or other States.241 Each case will have to be decided in view of the circumstances of the case and taking into account the criteria in Article 59.242 The Article does not refer to any specific procedure for resolution of the conflict, however, it has been suggested that it includes both negotiations as well as recourse to the dispute settlement procedures in Part XV.243 It is not entirely 240  Bernard Oxman, “The Territorial Temptation: A Siren Song at Sea,” American Journal of International Law 100 (2006), 830. 241  Churchill and Lowe, The Law of the Sea, 176. 242  The Virginia Commentary states that “Given the functional nature of the exclusive economic zone, where economic interests are the principal concern, this formula would favour the coastal State. On issues not involving the exploration for and exploitation of resources, where conflicts arise, the interests of other States or of the international community as a whole are to be taken into consideration:” Nordquist et al., United Nations Commentary on the Law of the Sea, 569. 243  Churchill and Lowe note that, essentially, Article 59 “means that there must first be an attempt at settlement by consensual means: if this is unsuccessful, the dispute must

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clear whether Article 59 will be effective in this situation. Although not explicitly acknowledged as such, the Advisory Body of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (IOC/ABE-LOS) and their Guidelines for the legal regulation of Argo Profiling Float Deployments on the High Seas was an attempt to implement Article 59 through negotiations. That effort was unsuccessful, however, in gaining widespread acceptance. The dispute settlement clauses in Part XV of UNCLOS present yet another option. Disputes concerning the interpretation or application of the provisions of UNCLOS with regard to MSR shall be settled in accordance with compulsory dispute settlement mechanisms in section 2 of Part XV, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of (i) the exercise by the coastal State of a right or discretion in accordance with article 246; or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253.244 Arguably, the requirement that a “dispute” has arisen between two States parties has not been met. International organizations245 and “entities other than State parties”246 have access to the dispute settlement mechanisms in UNCLOS, and either could bring a case to the International Tribunal for the Law of the Sea (ITLOS) on whether dual-purpose cables constitute a form of MSR. For example, the ITU or the WMO and a cable company could come to an agreement to refer a dispute to ITLOS, which may help clarify matters. An easier route would be to request an ITLOS advisory opinion. Under Article 138(1) of the Rules of ITLOS, ITLOS may “give an advisory opinion on a legal question if an international agreement related to the purposes of be referred to one of the judicial bodies listed in article 287, unless the dispute relates to military activities and one of the parties has made a declaration under article 298 exempting itself and settling such disputes by compulsory third-party means.” See Churchill and Lowe, The Law of the Sea, 176. Similarly, the Virginia Commentary also notes that the stipulation in Article 59 for conflicts on the rights and jurisdiction of States in the EEZ to be resolved on the basis of equity and in light of all relevant circumstances “serves as a guide for the diplomatic settlement of ‘conflicts’ as much as for the judicial settlement of disputes.” See Nordquist et al., United Nations Commentary on the Law of the Sea, 569. 244  Article 297(2), UNCLOS. 245   See Article 7, Annex IX of UNCLOS on Participation of International Organizations. 246   See Article 20(2) of Annex VI on the Statute of the International Tribunal on the Law of the Sea, which provides that “The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.”

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the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.”247 Article 138 does not limit the type of entities that could request an advisory opinion and both international organizations and non-State entities could request one, provided that there was an international agreement authorizing them to do so.248 Any of the relevant international organizations, such as the ITU, WMO, or the IOC, could request an advisory opinion on the status of such cables, and this rule could also go a long way toward clarifying the issue.249 Clearly, there are mechanisms that can be utilized to resolve the issues raised by submarine communications cables used for marine data collection. The only question is whether these issues become important enough that States, international organizations, the cable industry, and the scientific community have the political will to take action. Any action to resolve these issues has to involve all relevant stakeholders, or else it will run the risk of not being widely or uniformly accepted, which will just reinstate the status quo of an inconsistently implemented regime. Finally, when deciding what action to take, the relevant stakeholders may wish to bear in mind the historic function of the law of the sea—namely to protect and balance the “common interests inclusive and exclusive of all peoples in the use and enjoyment of the oceans, while rejecting all egocentric assertions of special interests in contravention of general community interest.”250 As it did for the nascent submarine communications cable technology in the 1980s, UNCLOS (and interpretations of UNCLOS) should aim to facilitate new scientific developments that have the potential to benefit mankind and not stymie them. 247  International Tribunal for the Law of the Sea, Rules of the Tribunal (as amended 17 March 2009), Article 138, available at http://www.itlos.org/fileadmin/itlos/documents/basic_ texts/Itlos_8_E_17_03_09.pdf. 248  Michael Becker, “Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion,” American Society of International Law, Insights 17.19 (23 August 2013), available at http://www.asil.org/insights/volume/17/issue/19/sustainable-fisheries-andobligations-flag-and-coastal-states-request#_edn7. 249  It should be noted that ITLOS’ power to issue advisory opinions is not contained in UNCLOS or the Statute of ITLOS but rather in its rules. ITLOS has not issued an advisory opinion under this power before, although in 2013, a request was made by the SubRegional Fisheries Commission for an advisory opinion, which is currently pending. Some have questioned the validity of the advisory function of ITLOS. See, Michael Becker, “Sustainable Fisheries and the Obligations of Flag and Coastal States.” 250  Myres McDougal and William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 1.

Chapter 9

Offshore Energy: Troubled Waters in the Eastern Mediterranean Sea Maria Gavouneli The Eastern Mediterranean Sea has always been to the forefront of history. Great civilizations thrived on its shores, the impact of which is still felt today and informs our understanding of the contemporary world. Throughout the centuries to the present, the region remains an avenue for the movement of people, either as large numbers of illegal immigrants who seek the opportunities of Fortress Europe and beyond, or as tourists who crave the sun and the sea. It remains one of the busiest crossroads for navigation, a strategic hub for the carriage of goods by sea and the deployment of naval forces. Ancient feuds survive and are vested in present-day rivalries. New sources of energy add to regional security concerns. This chapter explores the challenges created by the multiplicity of legal rules and regimes applicable in the Eastern Mediterranean Sea, keeping in mind the jurisdictional problems that arise in such a geographically compact area. I

A Multitude of Challenges

The extreme diversity of the region, that includes nearly 20 States of varying social and economic features and situated at opposite stages of development and political (in)stability, is further accentuated by the diversity of the relevant legal regimes and the multiplicity of the applicable legal rules and regulations. The multiple uses of the regional maritime domain, with navigation, fishing and recreation claiming equal precedence, need to be taken into account for an optimum regulatory balance; the overall regulatory framework applicable in the Eastern Mediterranean is the result of a very complicated balancing exercise between conflicting uses and overlapping jurisdictional claims. The resulting patchwork has two characteristics, one part of a global trend and the

* Assistant Professor of International Law, Faculty of Law, National & Kapodistrian University of Athens.

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other specific to the area. First, whereas in the past the prevalent uses of the seas, i.e. navigation and fishing, run in parallel, there is an increasing tendency to fence off particular areas dedicated to a specific single use, i.e. specially protected areas or safety zones around offshore oil rigs, gas platforms or windmills. Second, the trend towards exclusivity of use in specific areas may prove to be especially problematic in the Eastern Mediterranean, since the area is so crowded.1 Indeed, there is one point off the west coast of the Peloponnese where adjacent, overlapping and conflicting maritime claims come together in an elaborate millefeuille construction. 1 A Multitude of Sources The multiplicity of regulatory systems is particularly evident in the energy ­sector. Oil and gas exploration and exploitation necessitates the construction and use of offshore installations, subject to one legal regime,2 and pipelines, subject to a different, and somewhat older legal regime.3 Windmills are the principal alternative source of energy at sea; newer contraptions are designed to utilize wave power, sea currents or the difference in the salinity of coastal waters to produce electrical power. A common characteristic in the offshore oil and gas sector is the need for extensive spatial requirements to be commercially effective. The presence of wind-farms or other power-generation facilities at sea raises safety concerns for other users of the oceans and inevitably tempts coastal states to cordon off such areas. This type of exclusivity of use interferes with the enjoyment of other uses of the seas and thus further aggravates the balance of interests in the marine area under the principle of “due regard” to the rights of other users who access the

1  Faraj Abdullah Ahnish, The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea (Oxford: Oxford University Press, 1993); Tullio Treves, “The High Seas as Potential Exclusive Economic Zones in the Mediterranean,” in Perspectives of International law in the 21st Century: Liber Amicorum Professor Christian Dominicé in Honour of His 80th Birthday, eds. Marcelo Cohen, Robert Kolb, Djacoba Liva Tehindrazanarivelo (Leiden; Boston: Martinus Nijhoff, 2012), 175–189. 2  United Nations Convention on the Law of the Sea, adopted 10 December 1982, UNTS 1833 (entered into force 16 November 1994) (UNCLOS), Articles 60 and 80. See also Maria Gavouneli, Pollution from Offshore Installations (London; Boston: Graham and Trotman/ Martinus Nijhoff, 1995); Seline Trevisanut, “L’enlèvement et la Gestion des Plates-Formes et Installations Offshore Abandonnées ou Désaffectées,” in Droit de la Mer et Émergences Environnementales = Law of the Sea and Environmental Emergencies, eds. Gemma Andreone, Andrea Caliguri and Giuseppe Cataldi, (Naples: Editoriale Scientifica, 2012), 193–217. 3  Articles 79 and 112 UNCLOS.

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same areas. Cables are necessary to transfer the energy to the on-shore grid and make it commercially available.4 Indeed, it is often not appreciated that offshore energy-generation requires a network of pipelines and cables in the high seas and in areas within national jurisdiction. The popular assumption remains that this essential network would remain unobtrusive and somehow hidden in the sands, perhaps because the original regulation of such activities goes back to the 1884 Paris Convention for the Protection of Submarine Telegraph Cables.5 Present-day pipelines are often huge structures, with multiple chambers that allow for the transfer of gas, electricity and telecommunications cables in the equivalent of a single massive multi-lane highway situated at the bottom of the seas. Their presence raises important safety concerns,6 and they present new environmental challenges yet to be addressed.7 2 A Multitude of Concerns The proliferation of sources poses the question of accommodating them all: These issues fall within the definition of “due regard” to other uses of the seas, as set out in article 58(3) of the United Nations Convention on the Law of the Sea (UNCLOS) on the Exclusive Economic Zone (EEZ) and article 87(2) on the high seas. Major trade routes pass through the Mediterranean Sea and consequently freedom of navigation remains a primary concern, not only for peaceful uses of the seas but also for military purposes. The regulation of fisheries in one of the oldest fishing grounds in the world is a perennial problem. The European Union is making a sustained effort to contain illegal, unregulated and unreported (IUU) fishing, but its occasionally heavy-handed intervention in the context of the Common Fishing Policy8 does not always bear fruit. There 4  Wayne F. Nielsen and Tara Davenport, “Submarine Cables and Offshore Energy,” in Submarine Cables: The Handbook of Law and Policy, eds. Douglas R. Burnett, Robert C. Beckman and Tara M. Davenport (Leiden; Boston: Martinus Nijhoff, 2014), 351–73. 5  Signed on March 14, 1884 and entered into force on May 1, 1888, USTS 380. See also Louis Savadogo, “Le Régime International des Câbles Sous-Marins,” Journal de Droit International 140 (2013): 45–82. 6  Stuart Kaye, “International Measures to Protect Oil Platforms, Pipelines and Submarine Cables from Attack,” Tulane Maritime Law Journal 31 (2007): 377–423. 7  Scott Coffen-Smout and Glen J. Herbert, “Submarine Cables: A Challenge for Ocean Management, Marine Policy 24 (2000): 441–448; Tara Davenport, “Submarine Communications Cables and the Law of the Sea,” Ocean Development and International Law 43 (2012): 201–242. 8  The latest, widely acclaimed, edition is set out in Regulation (EU) No. 1380/2013 of the European Parliament and of the Council of December 11, 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and­

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is a strong possibility that types of fish mentioned in Homer will not be around for future generations. The European fisheries policy is particularly important because, through a comprehensive network of bilateral agreements, its influence extends well beyond European waters.9 It has not managed to resolve the jurisdictional conundrum of high seas fisheries,10 however, and tension between regional fisheries arrangements11 on the one hand and the conventional limits of pacta tertiis on the other, remain.12 Tourism is the heavy industry of the area. Its marine manifestations entail a massive seasonal movement of people, holiday-makers and service-­providers alike, and put an excessive burden on amenities and infrastructure. These pressures necessitate a new approach to marine regulation that goes beyond the seashore to include the coastal area as a whole—a tool known as “integrated coastal zone management.”13 In the Mediterranean Sea one of the first repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, Official Journal of the European Union L 354/22, December 28, 2013. It is worth remembering that fisheries jurisdiction is an exclusive jurisdiction of the European Union, completely taken out of the hands of the constituent member-States; article 3 of the Treaty on the Functioning of the European Union, Official Journal of the European Union C 326, pp. 47–390, October 26, 2012. 9  Nienke van der Burgt, The Contribution of International Fisheries Law to Human Development: An Analysis of Multilateral and ACP-EU Fisheries Instruments (Leiden; Boston: Martinus Nijhoff, 2013); Alice M.M. Miller, Simon R. Bush and Arthur P.J. Mol, “Power Europe: EU and the Illegal, Unreported and Unregulated Tuna Fisheries Regulation in the West and Central Pacific Ocean,” Marine Policy 45 (2014): 138–145. 10  Martin Tsamenyi and Quentin Hanich, Fisheries Jurisdiction under the Law of the Sea Convention: Rights and Obligations in Maritime Zones under the Sovereignty of Coastal States, in The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas, ed. David Freestone (Leiden; Boston: Martinus Nijhoff, 2013), 109–119. 11  Kim Hyun Jung, “The Return to mare clausum through Regional Fisheries Management Organizations?” Ocean Development and International Law 44 (2013): 205–218. See also ITLOS Case no. 21, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), 2 April 2015; text available at www.itlos.org (last visited: April 17, 2015). 12  Erik Franckx, “Pacta tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea,” Tulane Journal of International and Comparative Law 8 (2000): 49–81; Rosemary Rayfuse, Non-flag State Enforcement in High Seas Fisheries (Leiden; Boston: Martinus Nijhoff, 2004). 13  Defined as a “dynamic process for the sustainable management and use of coastal zones, taking into account at the same time the fragility of coastal ecosystems and landscapes, the diversity of activities and uses, their interactions, the maritime orientation of certain

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such comprehensive instruments, the Protocol on Integrated Coastal Zone Management (ICZM Protocol),14 has moved beyond the traditional allocation of State jurisdiction at sea. The Protocol applies seaward, as well as landward, along the coast, up to the limit designated by each State party. To counterbalance the constant burden of navigation, fishing and tourism on the Mediterranean environment, the protection system of the Barcelona Convention has also developed one of the first mechanisms for the creation and management of marine protected areas (MPAs). The 1995 Barcelona Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean15 is further evidence of the seaward expansion of the coastal States. The 1995 Protocol permits creation of Specially Protected Areas of Mediterranean Importance (SPAMI), even in the high seas. An application for SPAMI is made jointly by neighbouring States parties where the proposed area is wholly or partially on the high seas, or where “the limits of national sovereignty or jurisdiction have not yet been defined.”16 The provision proved to be largely inapplicable. The compelled cooperation required in the submission process is too bland an instrument for the finesse required in this troublesome area of the world. As a result of this situation, the possibility of high-seas SPAMIs remains elusive, the only example being the Pelagos Sanctuary for

activities and uses and their impact on both the marine and land parts” in article 2(f) of the ICZM Protocol, below. 14  The ICZM Protocol was signed in Madrid on January 21, 2008 by the State parties to the Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and entered into force on March 24, 2011; text available on www.unepmap.org (last visited: June 15, 2014); see also Maria Gavouneli, “Mediterranean Challenges: Between Old Problems and New Solutions,” The International Journal of Marine and Coastal Law 23 (2008): 477–497. 15  The SPA and Biodiversity Protocol was adopted on June 10, 1995 and entered into force on December 12, 1999. It was a new distinct instrument and not an amendment of the previous 1982 Geneva SPA Protocol, which continues in force; for the text and more see www .unepmap.org (last visited: June 15, 2014). 16  Article 9 paragraph 2(b) and (c) of the SPA and Biodiversity Protocol. For an overview see Tullio Scovazzi, “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations,” The International Journal of Marine and Coastal Law 19 (2004): 1–17; Nilufer Oral, “Protection of Vulnerable Marine Ecosystems in Areas beyond National Jurisdiction: Can International Law Meet the Challenge?” in Unresolved Issues and New Challenges to the Law of the Sea: Time before and Time after, eds. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (Leiden; Boston: Martinus Nijhoff, 2006), 85–108.

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Mediterranean Marine Mammals created in 1999 by a treaty among France, Italy and Monaco. The area subsequently was registered on the SPAMI list.17 More recently, the Barcelona Protocol Secretariat undertook a preliminary study to identify “priority conservation areas on the open seas, including the deep sea, that could contain sites that could be candidates for the SPAMI list,” to kick-start this rather dormant procedure.18 Inspiration for a breakthrough may be sought in the very complicated, but ultimately very successful procedure undertaken by Portugal within the context of the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, whereby the Altair Sea Mount was recognized as a high seas MPA first, and then as a protected area within national jurisdiction on the basis of the Portuguese claim to an extended continental shelf that is pending before the UN Commission on the Limits of the Continental Shelf (CLCS).19 Such a multi-prong approach that separates protective regimes over the waters and the underlying continental shelf is one way forward for the Mediterranean Sea as well20—especially where offshore energy projects are concerned.21 Closely related to environmental protection concerns, but with an important commercial parameter of its own, is the presence of resources, such as the microorganisms living in and around mud volcanoes and gas hydrates in some of the deepest recesses of the Eastern Mediterranean. These organisms are present in many volcanic fields in the area, and harbouring an immense variety of biodiversity.22 The basins, not fully explored and certainly not exploited 17  For the background see Tullio Scovazzi, “The Mediterranean Marine Mammals Sanctuary: The Signature of an Amendment Establishing a Sanctuary for Marine Mammals,” The International Journal of Marine and Coastal Law 16 (2001): 132–141. 18  UNEP, Identification of potential sites in open seas including the deep sea that may satisfy SPAMI criteria, UNEP(DEPI)/MED WG.348/3 rev.1, May 20, 2010; Draft approach to facilitate the preparation of joint proposals for inclusion in the SPAMI List in accordance with Article 9 of the SPA/BD Protocol, UNEP(DEPI)MED WG.359/CRP.2, April 20, 2011. 19  Marta Chantal Ribeiro, “The ‘Rainbow’: The First National Marine Protected Area Proposed under the High Seas,” The International Journal of Marine and Coastal Law 25 (2010): 183–207. 20  The argument being further developed in Anastasia Strati, Ελληνικές θαλάσσιες ζώνες και οριοθέτηση με γειτονικά κράτη [= Greek Maritime Zones and Delimitation with Neighbouring States] (Athens: Nomiki Vivliothiki, 2012), 61–63 [in Greek]. 21  Alexander Proelss, “Pipelines and Protected Sea Areas,” in Shipping Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea—Legal Implications and Liabilities, eds. Richard Caddell and D. Rhidian Thomas (Whitney, Oxon: Lawtext Publishing, 2013), 276–292. 22  V. Lykousis et al., “Mud Volcanoes and Gas Hydrates in the Anaximander Mountains,” Marine and Petroleum Geology 26 (2009): 854–872.

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to this day, are mostly straddling the boundary lines of the existing jurisdictional zones. The role these resources may play in the future adds another layer of uncertainty to the already convoluted make-up of the area. It becomes evident that the multiplicity of these concerns is not easily managed on the basis of a “due regard” test that simply tries to accommodate a bilateral balance of interests. Wider considerations need to be taken aboard, especially with a view to achieve a stable, long-term result that would ensure the sustainability. The notion of sustainability is barely present in UNCLOS, but it should be a greater part of the law of the sea today. The conservation and management of marine resources, a State obligation enshrined in UNCLOS, cannot be construed without the precepts of the Convention on Biological Diversity in mind, even though there is a decade in time and a generation in environmental conventional arrangements between them.23 The same is true with climate change considerations: The Mediterranean Sea is not expected to suffer any major coastal change in the foreseeable future, but there is no question that important changes in weather patterns and an aggravated risk of desertification could impact its delicate natural, bio-political and even economic balance. As a result of this threat, the legal principles relating to climate change24 necessarily inform our understanding and practical implementation of the law of the sea.25 3 A Multitude of Legal Regimes The necessity to integrate climate change concerns in the implementation of the law of the sea in order to ensure its continued effectiveness and relevance is simply an example of the synergies required. This is particularly true in the energy field, where in addition to the law of the sea provisions a­ pplicable on 23  Alan Boyle, “Further Development in the 1982 Convention on the Law of the Sea: Mechanisms for Change,” in The Law of the Sea: Progress and Prospects, eds. David Freestone, Richard Barnes and David M. Ong (Oxford: Oxford University Press, 2006), 40–62; Andrew Long, “Developing Linkages to Preserve Biodiversity,” Yearbook of International Environmental Law 21 (2012): 41–80; Rosemary Rayfuse, “Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction,” in ed. Freestone, The 1982 Law of the Sea Convention, supra note 10, 99–107. 24  For the most recent attempt at codification see International Law Association, Declaration of Legal Principles relating to Climate Change, Report of the 76th Conference, Washington, DC, 2014, available at www.ila-hq.org (last visited: June 15, 2014). 25  Alan Boyle, “Law of the Sea Perspectives on Climate Change,” in ed. Freestone, The 1982 Law of the Sea Convention, supra note 10, 157–164; Rosemary Rayfuse, “Climate Change and the Law of the Sea,” in International Law in the Era of Climate Change, eds. Rosemary Rayfuse and Shirley V. Scott (Cheltenham, Glos: Edward Elgar Publishing, 2012), 147–174.

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energy facilities at sea, there are a host of other legal regimes equally and concurrently relevant. The most important among them is international investment law. In the Mediterranean Sea, many offshore energy projects are transboundary cooperative projects that span jurisdictions and create challenges for stakeholders. Any such investment project requires specific arrangements in at least three major areas: protection of investors; dispute avoidance techniques, so as to diffuse as early as possible any problem arising in the life of the project; and expedited settlement of dispute settlements, so that the parties may not be bogged down in long legal battles. The most prominent tool to this end is currently the Energy Charter Treaty (ECT).26 The ECT is based on the first international instrument concluded after the end of the Cold War: the European Energy Charter.27 The ECT brings together all the major players in the energy field and covers all stages of an energy project, from the early days of investment negotiations to non-­ discriminatory conditions for trade in energy material, products and energyrelated equipment; to reliable transboundary energy transit flows through grids and pipelines; to the promotion of energy efficiency, thus minimizing the environmental impact of energy production and use; and finally, to the resolution of disputes between States and between the investor and the State. The ECT applies to all and any areas under the jurisdiction of the States parties,28 and thus applies to offshore energy-production facilities as well. In a lengthy Article 18, the ECT reassures the parties that the treaty covers the 26  Concluded in December 1994, it entered into force in April 1998; text available at www.encharter.org (last visited: June 15, 2014); Matthew Happold and Thomas Roe, “The Energy Charter Treaty,” in International Investment Law: The Sources of Rights and Obligations, eds. Tarcisio Gazzini and Eric De Brabandere (Leiden; Boston: Martinus Nijhoff, 2012), 69–97. Its provisional application to signatories before it came into force for all parties gave rise to significant doctrinal discussion and served as a basis for the adjudication of numerous cases; Mahnoush Arsajani and W. Michael Reisman, “Provisional Application of Treaties in International Law: The Energy Charter Treaty Awards,” in The Law of Treaties beyond the Vienna Convention, ed. Enzo Canizzaro (New York: Oxford University Press, 2011), 86–102. 27  Concluding Document of The Hague Conference on the European Energy Charter, concluded in 1991; 62 signatories to date, including the United States, Canada and the European Communities; text available at www.encharter.org (last visited: June 15, 2014). 28  Article 1 paragraph 10(a)–(b) reads: “‘Area’ means with respect to a State that is a Contracting Party: (a) the territory under its sovereignty, it being understood that territory includes land, internal waters and the territorial sea; and (b) subject to and in accordance with the international law of the sea: the sea, sea-bed and its subsoil with regard to which that Contracting Party exercises sovereign rights and jurisdiction.”

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trade and investment aspects of the bargain, but not questions relating to sovereignty over natural resources. In this regard, States maintain the sole power “to decide the geographical areas . . . to be made available for exploration and development of its energy resources, the optimalization of their recovery, and the rate at which they may be depleted or otherwise exploited.”29 Nonetheless, they “undertake to facilitate access to energy resources, inter alia, by allocating in a non-discriminatory manner on the basis of published criteria authorizations, licences, concessions and contracts to prospect and explore for or to exploit or extract energy resources.”30 Reflecting the scope of application of the treaty, which covers the whole life-cycle of the energy sector,31 the ECT provides for different types of dispute resolution, dependent upon the nature of the problem. As expected, the most popular among them is arbitration—the mechanism available for investor-host State disputes. There are three possible fora: in the context of the International Centre for the Settlement of Investment Disputes (ICSID), under the rules of the UN Commission on International Trade Law (UNCITRAL), or an application to the Arbitration Institute of the Stockholm Chamber of Commerce.32 Although it is quite clear that the original thinking at the time of the conclusion of the ECT reflected questions of oil and gas exploration and exploitation with their concomitant pipelines, it is evident that the treaty applies to all energy-related investments, including renewable sources of energy. Out of the 66 investment arbitrations listed until April 2015 in the Energy Charter Secretariat website, 23 cases—all commenced since 2011—refer to disputes arising from changes affecting the renewable energy sector. The traditional method of state-to-state arbitration is also available as the general method of settlement for “disputes concerning the application or interpretation of [the] Treaty,” with the exception of competition and environmental issues.33 Sovereign questions pertaining to the allocation of oil and gas exploration areas or the licensing of offshore renewable energy facilities may be premised on an underlying dispute over the particular maritime area. 29  Article 18 paragraph 3 ECT. 30  Article 18 paragraph 4 ECT. 31  Yulia Selivanova, “The Energy Charter and the International Energy Governance,” European Yearbook of International Economic Law 18 (2012): 307–342. 32  Article 26 ECT; Thomas Roe, Matthew Happold and James Dingemans, eds., Settlement of Disputes under the Energy Charter Treaty (Cambridge, UK; New York: Cambridge University Press, 2011); Kaj Hobér, “Investment Arbitration and the Energy Charter Treaty,” Journal of International Dispute Settlement 1 (2010): 153–190. 33  Article 27 ECT.

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Would Article 27 ECT arbitration with its specific characteristics (viz., ad hoc arbitration under the UNCITRAL arbitration rules with the Permanent Court of Arbitration serving as seat and secretariat) provide an additional venue for the resolution of delimitation disputes, especially when there is no consent forthcoming for an application to the International Court of Justice, the International Tribunal on the Law of the Sea or other ad hoc adjudication?34 In fact, the inter-State dispute settlement mechanism appears to have been invoked only once to date and the case was settled amicably at an early stage. It is a rare occasion for parties to a major project to rely on a generic treaty, even such a dedicated one as the Energy Charter Treaty. In the vast majority of cases, investments are carried out within the context of a specific Bilateral Investment Treat (BIT).35 All BITs apply one or the other paradigm with adjustments according to the specifications of the parties concerned.36 In the Eastern Mediterranean area, BITs would cover energy investments, especially on the southern coastal States that are not parties to the ECT, thus providing the necessary security of law.37 Alternatively, a major energy project with both land and offshore elements usually constitutes the subject-matter of a specific agreement, which involves the States concerned, private investors, State-owned enterprises, international banks and international development banking institutions (such as the European Bank for Reconstruction and Development—EBRD), and even 34  Thus Anastasios Gourgourinis, Delimitation of Maritime Zones and Inter-State Dispute Settlement under the ECT, Presentation at the Tenth Nafplion International Law Seminar, 29 May–1 June 2014 (on file with the author) [in Greek]. See also Youri van Logchem, “Submarine Telecommunication Cables in Disputed Maritime Areas,” Ocean Development and International Law 45 (2014): 107–122. 35  Michele Potestà, “State-to-State Dispute Settlement Pursuant to Bilateral Investment Treaties: Is There Potential?” in International Courts and the Development of International Law: Essays in honour of Tullio Treves, eds. Nerina Boschiero et al., (The Hague: T.M.C. Asser Press, 2013), 753–768; Tarcisio Gazzini, “Bilateral Investment Treaties,” in eds. Gazzini and De Brabandere, International Investment Law, supra note 26, 99–132. 36  Kenneth J. Vandevelde, Bilateral Investment Treaties: History, Policy and Interpretation (New York: Oxford University Press, 2010). 37  Pieter Bekker and Akiko Ogawa, “The Impact of Bilateral Investment Treaty (BIT) Proliferation on Demand for Investment Insurance: Reassessing Political Risk Insurance after the BIT,” International Centre for Settlement of Investment Disputes Review—Foreign Investment Law Journal 28 (2013): 314–350; Santiago Montt, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Oxford: Hart Publishing, 2012); Mathias Audit and Mathias Forteau, “Investment Arbitration without BIT: Toward a Foreign Investment Customary-Based Arbitration?” Journal of International Arbitration 29 (2012): 581–604.

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domestic construction companies. The Nord Stream, a pipeline with both land and underwater elements transporting gas from Russia to Germany and States beyond, is a typical example. It crosses the territorial waters and EEZs of Russia, Denmark, Germany and the EEZ of Sweden, and is administered by a commercial company headquartered in Zug, Switzerland.38 The solutions that were devised to address problems encountered during its construction39 and operation,40 not least in the maritime area, serve as a blueprint for major such projects currently carried out in the Eastern Mediterranean, such as the TransAdriatic Pipeline (TAP), which would transfer Azeri gas coming through the Trans-Anatolian Pipeline (TANAP) across Turkey to Greece and Albania, across the Adriatic Sea to land on southern Italy.41 Although the interface between law of the sea and investment law is complex, the confluence between environmental obligations and the possible uses of the maritime space is even more interlinked.42 All energy projects placed and operated in the marine environment are subject to the same procedural obligations applicable to all infrastructure works. The environmental impact obligation set out in Article 206 in the Law of the Sea Convention is at best timid, but the obligation to conduct an environmental impact assessment (EIA) before any such activity is undertaken appears in all environmental conventions and is now considered a customary obligation.43 The specific content of such an EIA is best set forth in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context,44 as well as the newly 38  For an overview of the project see www.nord-stream.com (last visited: June 15, 2014). 39  Sergei Vinogradov, “Challenges of Nord Stream: Streamlining International Legal Frameworks and Regimes in Submarine Pipelines,” German Yearbook of International Law 52 (2010): 241–292. 40  Anna Marhold, “In Too Deep: Russia, the Energy Charter Treaty and Nord Stream Gas Pipeline,” Baltic Yearbook of International Law 12 (2012): 305–315; Richard Happ, “The Nord Stream Pipeline: Settlement of Disputes under the Energy Charter Treaty?” German Yearbook of International Law 52 (2010): 341–354. 41  For an overview of the project see www.trans-adriatic-pipeline.com (last visited: June 15, 2014). 42  Seline Trevisanut, “Foreign Investments in the Offshore Energy Industry: Investment Protection v. Energy Security v. Protection of the Marine Environment,” in Foreign Investment, International Law and Common Concerns, eds. Tullio Treves, Francesco Seatzu and Seline Trevisanut (Abingdon, Oxon; New York: Routledge, 2014), 247–264. 43  International Court of Justice, Case concerning Pulp Mills on the River Uruguay, (Argentina v. Uruguay), ICJ Reports 2010, paragraph 204; Ilias Plakokefalos, “The Pulp Mills Case,” The International Journal of Marine and Coastal Law 26 (2011): 169–183. 44  The Espoo Convention was adopted in February 1991 and came into force on September 10, 1997; text available at www.unece.org/env/eia (last visited: June 15, 2014). N. Craik, The

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revamped Directive 2014/52/EU,45 which significantly updates the pioneer Directive 85/337/EC by linking it directly with the placement and safety requirements of offshore platforms and their environmental impact.46 The obligation to consult all affected parties is also deeply entrenched in environmental law culture,47 as well as the right of access to environmental information and justice. These norms are best reflected in the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.48 Most of these instruments are part of the day-to-day domestic administrative reality of European Mediterranean States, but they do not bind most of the non-European neighbours in the Eastern Mediterranean. Once again, the reality in the field is more complicated. Almost all of these States have preferential treatment agreements with the European Union, which effectively guarantee that all such procedures would be exported for projects with any EU financial contribution. Moreover, the Mediterranean Integrated Coastal Zone Management (ICZM) Protocol provides for a State obligation to involve all stakeholders, including the wider public in the decision-making and ­decision-implementing process;49 to provide information in an adequate, timely and effective manner;50 further reinforced with an express right of

45 

46  47  48  49  50 

International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge: Cambridge University Press, 2008); K. Bastmeijer and T. Koivurova, Theory and Practice of Transboundary Environmental Impact Assessment (Leiden; Boston: Martinus Nijhoff, 2008); E. Olufemi, “Environmental Impact Assessment,” in Research Handbook on International Environmental Law, eds. M. Fitzmaurice, D. Ong and P. Merkouris, (Cheltenham, Glos: Edward Elgar Publishing, 2010), 227–242. Directive 2014/52/EU of the European Parliament and of the Council of April 16, 2014, amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ L. 124, 1–18, April 25, 2014, text available at www.eur-lex.europa.eu (last visited on June 15, 2014). Directive 200/92/EU was the codification of all the amendments brought onto the venerable Directive 85/33/EC after the adoption of the Espoo Convention (Directive 97/11/EC), the public participation provisions of the Aarhus Convention (Directive 2003/35/EC) and provisions made for projects related to the transport, capture and storage of carbon dioxide (CO2) (Directive 2009/31/EC). Preambular paragraph 12 of Directive 2014/52/EU. Michelle Portman, “Involving the Public in the Impact Assessment of Offshore Renewable Energy Facilities,” Marine Policy 13 (2009): 332–338. Adopted on June 25, 1998, it came into force on October 30, 2001; for the text and the story so far see www.unece.org/env/pp (last visited: June 15, 2014). Article 14 paragraph 1 of the ICZM Protocol; see supra note 13. Article 14 paragraph 2 of the ICZM Protocol.

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recourse to available administrative and legal resources.51 The tripartite formation corresponds to the three pillars of the Aarhus Convention: for the citizens of some of the countries in this area, this half-baked access to an administrative authority, and not necessarily to a court of law, may be their only chance to seek redress.52 Important though this preventive aspect of procedural obligations may be, it does not cover the whole aspect of environmental protection related to the energy sector. Environmental concerns are also present in instruments as diverse in nature as technical specifications for the building of pipelines,53 or a new comprehensive regime on the operation of offshore platforms. Directive 2013/30/EU on safety of offshore oil and gas operations is the first attempt at an international instrument that covers the complete life-cycle of offshore platforms, from placement and the licensing of operations to decommissioning.54 The common characteristic of these sets of rules, each of a different regulatory nature, is that they purport to address global concerns through normcreation at the regional level. Almost all the instruments adopted within the context of the UN Economic Commission for Europe contain an open clause, which allows for participation by all UN members. This provision effectively converts a regional convention into a global instrument and it has also been used to other environmental instruments, such as the 1991 Espoo EIA Convention and its 2003 Kyiv Protocol on Strategic Environmental Assessment.55 This structure applies to other EU instruments as well. Indeed, part of the negotiations in turning the originally proposed Regulation on safety of 51  Article 14 paragraph 3 of the ICZM Protocol. 52  Gavouneli, “Mediterranean Challenges,” supra note 14, at 484–485. 53  UN Economic Commission for Europe, Safety Guidelines and Good Practices for Pipelines. Convention on the Transboundary Effects of Industrial Accidents, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 2008; available at www.unece.org/environmental-policy/treaties/industrial-accidents/­publications/ official-publications/2008/safety-guidelines-and-good-practices-for-pipelines/ envteiapubspipelines.html (last visited: June 15, 2014). 54  Directive 2013/30 EU of the European Parliament and of the Council of June 12, 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC, OJ L. 178, 66–106, June 28, 2013; available at www.eur-lex.europa.eu (last visited on June 15, 2014). 55  For the Espoo Convention, supra note 44. The SEA Protocol was adopted in May 2003 and entered into force on July 11, 2010; text available at www.unece.org/env/eia/sea_­protocol (last visited: June 15, 2014). It was preceded by Directive 2001/42/EC of the European Parliament and of the Council of June 27, 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ L. 197, 30–37, July 21, 2001; available at www.eur-lex.europa.eu (last visited on June 15, 2014).

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o­ ffshore oil and gas prospection, exploration and production activities into a Directive, thereby allowing significantly more leeway to EU member-States, was a commitment by the internationally-active European energy companies to expand the common standards applicable in EU waters to all their operations worldwide.56 Added to the very significant geographical scope of the Directive, which affects also offshore operations in Norway, Iceland and Lichtenstein, members of the European Economic Area (EEA), as well as in the parties to the Energy Community of South-East Europe,57 the end-result offers the definite international regulation in the field to date. Such instruments complement the traditional marine pollution conventions, which remain applicable in the Mediterranean Sea to the extent that they cover energy-generating operations—typically, when the platform is seagoing rather than when it is stationary. There is not, however, a comprehensive global instrument on pollution from offshore installations and assorted facilities. The only effective international instrument is once again a regional one: The Madrid Protocol for the Protection of the Mediterranean Sea against Pollution resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Sub-soil, which entered into force recently after a long gestation58 and only after the European Union decided to legislate in the field. The challenge of dealing with a multitude of regimes applicable on energy installations at sea is compounded by numerous national laws. The dualist dichotomy between domestic regulations and international legal obligations is leveraged with the addition of the European Union law. Such interference does not only refer to the allocation of competences between the member 56  Maria Gavouneli, “Offshore Installations: A Comprehensive Regime?” MEPIELAN e-bulletin, 4 (April 2013): available at www.mepielan-ebulletin.gr/default.aspx?pid=18an dCategoryId=4&ArticleId=137&Article=Offshore-Installations-A-Compehensive-Regime (last visited: June 15, 2014). 57  Created by the Treaty establishing the Energy Community, concluded in Athens on October 25, 2005 and entered into force on July 1, 2006, it brings together the European Commission with Albania, Croatia, the Former Yugoslav Republic of Macedonia, Kosovo, Moldova and Ukraine with Turkey and Armenia as observers; for the story so far see www.energy-community.org (last visited: June 15, 2014). Carsten Nowak, “The Energy Community of South East Europe,” European Yearbook of International Economic Law (Berlin: Springer-Verlag, 2012), 405–441. 58  The Madrid Protocol for the protection of the Mediterranean Sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil, October 14, 1995, entered into force March 24, 2011, www.unepmap.org (last visited: June 15, 2014).

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States and the European Union—relationship that is often unclear and complicated. For example, decisions on fisheries and marine biological resources have been wholly transferred to the EU level. Energy production regulation, however, remains in principle with national regulators to the extent that the European Commission does regulate the energy market, and through it all activities related to the provision of related services. Although this relationship is the most obvious competence interplay, there is a much more interesting cross-fertilization between international law on the one hand and European Union instruments on the other. Solutions first attempted at the Union level are exported through regional instruments to the rest of the continent, and sometimes the world, whereas innovative but rather soft approaches occasionally found in international conventions acquire a formidable machinery of implementation by their inclusion or conversion in EU documents. The continued give-and-take between these two legal orders reinforces an aspiration of the international community: international regulation that applies seamlessly beyond political boundaries, but in full compliance with national laws. There is no hierarchical order in this common universe; rather the member States are confronted with a fairly typical case of conflicting obligations.59 Thus, in the most recent example, the agreements concluded by a number of EU members and associated States with the Russian Federation for the construction and operation of South Stream—a major pipeline project running under the Black Sea to Bulgaria, Serbia (whence it would branch out to Bosnia-Herzegovina and Croatia), Slovenia, and then Hungary and Italy—were reviewed by the European Commission. The parties concerned were ordered in no uncertain terms by the European Commission to redraft their already concluded agreements,60 so as to conform to the European energy legislation or face a non-compliance procedure before the European Court of Justice.61 As a result, the Russian Federation aborted the project in December 2014. 59  Emmanuel Roucounas, “Engagements Parallèles et Contradictoires,” Recueil des Cours de l’Académie de Droit International de La Haye 206 (1987-VI): 9–288. 60  Intergovernmental Agreements (IGAs) were concluded with Bulgaria on January 18, 2008, with Serbia on January 25, 2008, with Hungary on February 28, 2008, with Greece on April 29, 2008, with Slovenia on November 14, 2009, with Croatia on March 2, 2010 and with Austria on April 24, 2010. For the story so far see EurActiv.com, www.euractiv.com/­ sections/global-europe/renzi-leads-belated-effort-support-south-stream-302684, June 10, 2014 (last visited: June 15, 2014). 61  Cf. Nikos Lavranos, “Member States’ Bilateral Investment Treaties (BITs): Lost in Transition?” Hague Yearbook of International Law 24 (2011): 281–311.

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A Multitude of Solutions

The complexity of the regulatory regime allows for the existence and concurrent application of a multitude of available tools to address the necessary prerequisites for any possible solution. The fundamental question relates to the allocation of State jurisdiction in the areas where energy projects will be constructed and operated, and the concomitant apportionment of responsibility and liability for any possible mishap.62 A number of supplementary questions arise within this broad framework. As all energy projects have a spatial element, the delimitation of the marine area, especially the continental shelf, constitutes the minimum first step. This is especially true in the restrained basins of Eastern Mediterranean region, where the confined sea space prevents coastal States from enjoying the maximum jurisdictional claims permitted in UNCLOS and customary law.63 Is the proclamation of an EEZ a necessary component of the solution offered in this context? There is no doubt that the existence of the sovereign rights of the coastal State on the continental shelf would suffice as a jurisdictional basis for energy projects. Sovereign rights acquired as part of the EEZ jurisdiction reinforce the powers of the coastal State, but they are not necessary for energy development. Furthermore, jurisdictional powers of the coastal State to protect and preserve the marine environment further enhance the package deal of UNCLOS. This understanding is reflected in the reality in the field: most Mediterranean States would first embark on formal or more frequently informal consultations on the establishment of the fundamental points of an eventual delimitation agreement, to be complemented with the full armour of a (functional) EEZ once the prospect of tangible returns on the investment made becomes real. 1 A Multitude of Good Practices It is perhaps inevitable in view of the history of the Eastern Mediterranean region that the first delimitation efforts were carried out on the western side of the basin. The 1977 Agreement between Greece and Italy on the delimitation of the continental shelf in the Ionian Sea is one of the oldest such agreements (Map 9.1). Broadly based on the principle of equidistance, the delimitation line 62  Enrico Milano and Irini Papanicolopulu, “State Responsibility in Disputed Areas on Land and at Sea,” Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 71 (2011): 587–640. 63  Andrew Filis and Rafael Leal-Arcas, “Legal Aspects of Inter-State Maritime Delimitation in the Eastern Mediterranean Basin,” Oil, Gas and Energy Law 2013, available at www.ogel .org (last visited: June 16, 2014).

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Map 9.1 Agreement between the Hellenic Republic and the Italian Republic on the Delimitation of the Zones of the Continental Shelf Belonging to Each of the Two States, 1977; in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, Vol. VI, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2011), 4432 (with kind permission).

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makes adjustments in order to accommodate the presence of small groups of islands on the Greek side, and the existence of straight baselines on the Italian side. The agreement was reached, even though Italian legislation on straight baselines came into force after the conclusion of the delimitation agreement. The final delimitation line has not been influenced by the existence of a 12-mile territorial zone on the Italian side as opposed to six miles on the Greek side.64 It is widely expected that a possible EEZ delimitation line would follow along the same lines although, as a matter of principle, Italy does not consider automatic the extension of continental shelf boundary onto an EEZ delimitation line. Italy’s position probably relates to problems in respect of the delimitation line with Tunisia. Interestingly, although Italy has declared a 24-miles ecological zone,65 it does not apply in the Adriatic and the Ionian Seas. The Cyprus-Egypt Agreement on the delimitation of the Exclusive Economic Zone is an excellent example of a successful regional delimitation (Map 9.2).66 The Agreement is based roughly on the equidistance principle with minor adjustments,67 and it stopped just short of the tri-point where a possible Greek 64  Tullio Scovazzi and G. Francalanci, “Report: Greece-Italy,” in International Maritime Boundaries, eds. J.I. Charney and L.M. Alexander, Vol. II, American Society of International Law (The Hague: Kluwer Law International, 1993), 1591–1600; and “Addendum,” in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, Vol. VI, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2011), 4431–4432; Theodore Katsoufros, Η ελληνο-ιταλική συμφωνία της 24ης Μαϊου 1977 γα την οριοθέτηση της υφαλοκρηπίδας του Ιονίου και οι ενδεχόμενες επιπτώσεις της στο Αιγαίο [=The HellenicItalian Agreement of May 24, 1977 on the delimitation of the continental shelf of the Ionian Sea and its possible repercussions for the Aegean], Armenopoulos (1980), 135–152 [in Greek]. 65  Legge no. 61 di febbraio 2006, “Istituzione di Zone di Protezione Ecologica Oltre il Limite Esterno del Mare Territorial,” Gazzetta Ufficiale no. 52 del 3 marzo 2006; available at www.parlamento.it/parlam/leggi/06061l.htm (last visited: June 16, 2014). Tullio Scovazzi, “La Zone de Protection Écologique Italienne dans le Contexte Confus des Zones Côtières Méditerranéennes,” Annuaire de Droit de la Mer 10 (2005): 209–222; Giuseppe Cataldi, “L’Italia e la Delimitazione degli Spazi Marini. Osservazioni Sulla Prassi Recente di Estensione della Giuristizione Costiera nel Mediterraneo,” Rivista di Diritto Internationale 87 (2004): 621–642. 66  Concluded in Cairo on February 17, 2003, it entered into force on March 7, 2004; text available at www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ EGY-CYP2003EZ.pdf (last visited: June 15, 2014). Emmanouella Doussis, “L’Accord du 17 Février 2003 entre Chypre et l’Égypte sur la Délimitation de Leurs Zones Économiques Exclusives: Bref Commentaire,” Annuaire de droit de la mer 9 (2004): 143–155; Irini Papanicolopulu, Il Confine Marino. Unità o Pluralità? (Milan: Giuffré, 2005), at 255–257. 67  Tullio Scovazzi, “Maritime Delimitations in the Mediterranean Sea,” in Cursos Euromediterráneos Bancaja de Derecho Internacional, eds. Jorge Cardona Lloréns, Amparo

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Map 9.2 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone, 2003; in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2005), 3923 (with kind permission).

EEZ would meet overlapping claims by a Turkish EEZ. It also contains an arbitration clause for the settlement of disputes, effectively in observation of Article 287 of UNCLOS, which binds both parties. Its coming into force necessitated the retroactive declaration of the EEZ of the Republic of Cyprus;68 interestingly enough, neither the delimitation Agreement nor any other instrument refers to the delimitation of the continental shelf, which remains forgotten and neglected. It came as no surprise that the Agreement provoked the vociferous objections of Turkey.69 In spite of that reaction, however, the parties complemented Sanjosé Gil and Ruth Abril Stoffels, Vols VIII/IX (Valencia: Tirant lo Blanch, 2009), 349–504. 68  Promulgated by Law 64(I)/2004, Official Gazette of the Republic Annex I, no. 3831 of April 5, 2004; text available at www.cygazette.com (last visited: June 15, 2014). 69  Note No. 2004/Turkuno DT/4739, March 2, 2004, from the Permanent Mission of Turkey to the United Nations, Law of the Sea Bulletin 54 (2004): 127; Statement dated December 28, 2004 of the Position of the Government of the Republic of Cyprus with respect to the Information Note by Turkey concerning the latter’s objection to the Agreement

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their accord with the conclusion on May 4, 2006 of a joint utilization agreement under the obligation to cooperate that is in Article 2 of the Delimitation Agreement. The same pattern was followed in the 2010 Cyprus-Israel Agreement on the delimitation of the Exclusive Economic Zone (Map 9.3),70 which was the third agreement in which Cyprus attempted to tidy-up its maritime borders with one very significant difference. There is an express reference made to UNCLOS in the preambular paragraphs in spite of the fact that Israel is not a party to the Convention. The delimitation line is again based on the equidistance principle but the final demarcation of tri-points is to be amended with the consent of all the parties concerned. This provision is a natural reflection of the fact that, as the third in the series, this agreement covers the intervening space between the Lebanese and the Egyptian border, although Lebanon acutely refutes the point. In contrast to the previous two agreements, the third has no arbitration clause but rather a reference to the settlement of arising disputes by diplomatic means in a spirit of understanding and cooperation. Provision is also being made for a subsequent joint exploitation agreement, in a direct affirmation of an obligation to cooperate. Turkish objections to this Agreement were accentuated by the intervening difficulties in its relationship with Israel. Amid a long list of objections,71 the main argument concentrates on the continued power of the Republic of Cyprus to represent the whole of the country, and consequently to decide on the delimitation of its maritime zones and the allocation of its natural resources. That reaction was complemented by an attempt to conclude a delimitation agreement of the continental shelf with the ‘Turkish Republic of Northern Cyprus’ (TRNC) and register the geographical coordinates of the Turkish continental shelf with the Secretary-General of the United Nations. The “agreement” was signed on September 21, 2011 and ratified by Turkey on June 29, 2012 by Law 6344/2012. The coordinates were not finally published in the Law of the Sea Bulletin, due to the strong objections of Greece and Cyprus. Nevertheless, the attempt indicates an acceptance by Turkey, a non party to between the Republic of Cyprus and the Arab Republic of Egypt on the delimitation of the Exclusive Economic Zone of February 17, 2003, Law of the Sea Bulletin 57 (2005): 124. 70  Adopted on December 17, 2010, it entered into force on February 25, 2011; Law of the Sea Bulletin 75 (2011): 27. 71  Erik Franckx and Marco Benatar, “Turkish Objections to Exclusive Economic Zone Agreements Concluded by Cyprus,” in Reconceptualising the Rule of Law in Global Governance, Resources, Investment and Trade, eds. Photini Pazartzis and Maria Gavouneli (Oxford: Hart Publishing, 2015) [forthcoming].

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Map 9.3 Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus on the Delimitation of the Exclusive Economic Zone, 2010; in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2012), 9 (with kind permission).

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the Law of the Sea Convention, of the procedures established therein, and in particular the obligation under article 84 paragraph 2 LOSC to give due publicity to charts or lists of geographical coordinates regarding continental shelf delimitation.72 2 A Multitude of Recalcitrant Cases These best practices reinforce the importance of having the right time and set of circumstances in order for an agreement to become viable in the toxic international political environment of the Eastern Mediterranean region. The second Cyprus delimitation treaty, the Agreement between the Government of the Republic of Lebanon and the Government of the Cypriot Republic delimiting the Exclusive Economic Zone (Map 9.4), is but a copy of the Cyprus-Egypt Agreement.73 And yet, whereas the latter has already matured into a joint exploitation accord, complete with a confidentiality agreement as to its specifics, the former founders in the rough waters of internal politics. The Lebanon Delimitation Agreement was concluded on January 17, 2007 and ratified by Cyprus in November 2007. With broad agreement on the principle of equidistance firmly in place, the parties disagree on the starting point of the delimitation line. The 2007 Agreement purposefully stopped just short of the tri-partite points,74 with Cyprus, Lebanon and Syria in the north, and with Cyprus, Lebanon and Israel in the south. The gap was intended to set aside any possibility of mutual recognition between Lebanon and Israel, even through an agreement on a technical point with a third party. In July and October 2010 Lebanon deposited with the UN General-Secretary charts and lists of coordinates of the southern boundary, which differed significantly from those set out in the Agreement and effectively overlapped with the area claimed by Israel. Lebanon claimed that the point indicated in the Cyprus Agreement was a temporary solution, valid until such time as a final starting point was decided. When the Cyprus-Israel Agreement was concluded in December 2010, Lebanon objected forcefully. In July 2011, Israel submitted to 72  Nikolaos Ioannidis, “The Continental Shelf Delimitation Agreement between Turkey and ‘TRNC’,” EJIL Talk!, May 26, 2014, available at www.ejiltalk.org/the-continental-shelfdelimitation-agreement-between-turkey-and-trnc (last visited: June 16, 2014). 73  Tullio Scovazzi, Irini Papanicolopulu and Giampiero Francalanci, “Cyprus-Lebanon: Agreement between the Government of the Republic of Lebanon and the Government of the Cypriot Republic delimiting the Exclusive Economic Zone,” in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, supra note 64, 4445–4454. 74  Coalter G. Lathrop, “Tripoint Issues in Maritime Boundary Delimitation,” in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, Vol. V, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2005), 3305–3375.

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Map 9.4 Agreement between the Government of the Republic of Lebanon and the Government of the Cypriot Republic delimiting the Exclusive Economic Zone,” in International Maritime Boundaries, eds. D.A. Colson and R.W. Smith, Vol. VI, American Society of International Law (Leiden; Boston: Martinus Nijhoff, 2011) 4451 (with kind permission).

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the UN its own set of coordinates on the basis of the Cyprus Agreement,75 and the situation further deteriorated. By late 2011, however, an attempt was made to put together a bilateral Expert Commission to inquire into the issue.76 This is not the only case gone awry in the Mediterranean context. The archetypal unfinished business is the 2009 delimitation agreement concluded between Greece and Albania.77 Signed with pomp and circumstance on April 27, 2009 at Tirana, essentially it constitutes a continental shelf delimitation agreement with a built-in mechanism for automatic extension so as to delimit any future maritime zones that might be proclaimed. In terms of content, it remains true to the principle of equidistance with slight adjustments being made due to the presence of islands on either side. Albania has a territorial sea of 12 nm, compared to the 6 nm territorial sea on the Greek side. Consequently, the median line delineates on the one hand the Albanian territorial waters and on the other the Greek continental shelf (and potential territorial waters).78 On April, 15 2010, however, the Albanian Constitutional Court unanimously held, upon an application by the Socialist Party then in opposition, that the Prime Minister, the Minister of Foreign Affairs and the chief negotiator lacked the relevant authorization to negotiate and bind their country and thus the Agreement was unconstitutional. Whatever the constitutional argument, however, it is quite clear under international law that domestic-law deficiencies (even assuming that they do exist) cannot impact upon the validity of a duly signed international convention. Moreover, lack of full negotiating powers 75  List of geographical coordinates for the delimitation of the northern limit of the Territorial Sea and Exclusive Economic Zone of the State of Israel in WGS84, communication from the Permanent Mission of Israel to the United nations dated July 12, 2011 to the Secretariat of the United Nations, available at www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/isr_eez_northenlimit2011.pdf (last visited: July 16, 2014). 76  Martin Wählisch, “Israel-Lebanon Offshore Oil and Gas Dispute—Rule of international Maritime Law,” ASIL Insights, 15 (last visited: December 5, 2011), available at www.asil.org/ insights/volume/15/issue/31/israel-lebanon-offshore-oil-gas-dispute-rules-internationalmaritime; E.S. Abu Gosh and Rafael Leal-Arcas, “Gas and Oil Explorations in the Levant Basin: The case of Lebanon and Israel,” Oil, Gas and Energy Law 3 (2013), available at www .ogel.org/article.asp?key=3366 (both last visited: June 16, 2014); Strati, Greek Maritime Zones, supra note 20, 109–118. 77  Agreement between the Hellenic Republic and the Republic of Albania on the delimitation of their respective continental shelf areas and other maritime zones to which they are entitled under international law, in eds. Colson and Smith, International Maritime Boundaries, supra note 64, 4470–4476. 78  Strati, Greek Maritime Zones, supra note 20, 135–144.

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is not among the conditions the Vienna Convention on the Law of Treaties (VCLT) would recognize as affecting the validity of a concluded agreement. A number of comments as to the content of the treaty were simply used to buttress the original erroneous assumption of nullity.79 Still, both parties continue to be bound by the obligation under Article 18 VCLT to respect the object and purpose of the treaty pending its ratification and entry into force. In both instances, the negotiated agreements fell victim to problems of national politics rather than irregularities or deficiencies inherent in their ­content. The difficulties easily may be addressed on the expert level, but the policy reversal required for them to come to fruition remains a political gamble, depending on circumstances beyond energy considerations. 3 A Multitude of Loose Ends The final tally of the delimitation in the Eastern Mediterranean illustrates the difficulties encountered in the area. Cyprus has undertaken a consistent effort to clarify its boundaries—and came up with two important, functioning agreements: one with Egypt, and the other with Israel; a moribund one with Lebanon, the resolution of which depends mostly on the ups and downs of the Lebanese-Israeli relationship; an open wound in its relationship with Turkey, which threatens its existence; and a void along the Syrian coast, which is devoured by its civil war and the dissolution of the State as was known for a century and more. Greece has its own difficulties. With only one long-standing delimitation agreement—with Italy—it faces challenges to enforce an agreement with Albania and conclude an agreement with Turkey. Both efforts are directly linked to the general political atmosphere within and between the States ­concerned. Consequently, these efforts may suffer the same fate as the convoluted neighbourhood relations. The greatest stumbling block in the Eastern basin is the impact Kastellorizo and its small ring of islands has on delimitation. This issue influences not only the Greek-Turkish negotiations, but also informs any agreement between Greece and Cyprus and between Greece and Egypt.80 The practical aspect of the delimitation exercise that needs to be carried out there is further ­accentuated by the proposed Eastern Mediterranean Sea Pipeline, scheduled 79  For a complete run-down see Kyriaki Noussia, “The Decision of the Albanian Supreme Court Annulling the 2009 Maritime Delimitation Agreement between Albania and Greece,” The International Journal of Marine and Coastal Law 25 (2010): 601–608. 80  For the second tripartite summit in April 2015, see http://in-cyprus.com/nicosia-declaration-after-tripartite-summit (last visited: May 14, 2015).

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to carry natural gas from the deposits found in the EEZs of Cyprus and Israel through Crete and mainland Greece to Italy and the rest of Europe through the IGI-Poseidon pipeline. Although already included in the Projects of Common Interest (PCI) list, compiled by the European Commission, the project remains at a very early stage. An international tender for a study on the technical and financial feasibility of the project was announced in June 2014.81 Once again the western front appears easier to negotiate than the eastern one but it is not without its problems. Croatia and Slovenia have long-standing disputes in the Adriatic Sea, which although long buried under the common front of Yugoslavia flared into existence once the countries became independent in 1991. In 2007, the two States agreed to submit their dispute to arbitration, but Slovenia had second thoughts about the project. Eventually, the settlement of the dispute was linked to the accession of Croatia to the European Union and the parties concluded an arbitration agreement under the watchful eye of the European Commission in 2009. With the procedure on-going,82 the parties continued to bicker. In April 2014, Croatia launched its own offshore licensing round83 to loud protests by Slovenia. The European Commission intervened to draw attention to the stand-still clause of Article 10 of the Arbitration Agreement, which stipulates that the “Parties must refrain from any action or statement, which might intensify the dispute or jeopardize the work of the Arbitral Tribunal.”84 Croatia and Montenegro have open issues on the Bay of Kotor and the Prevlaka Peninsula. It is understood that the two parties agreed in March 2008 to submit their dispute to the International Court of Justice, but no compromise is forthcoming.85 There is no doubt that the energy boom in the Eastern Mediterranean Sea has caused both intense interest in the area and a major flare-up in h ­ istorical disputes. The shifting of political tectonic plates through uneven political pro81  See www.neurope.eu/article/eu-eyes-east-med-gas-south-stream-alternative, March 11, 2014 (last visited: June 16, 2014). 82  Territorial and Maritime Arbitration between Croatia and Slovenia, www.pca-cpa.org (last visited: June 16, 2014). Giuseppe Cataldi, “Prospects for the Judicial Settlement of the Dispute between Croatia and Slovenia over Piran Bay,” in International Courts, eds. Boschiero et al., supra note 35, 257–268. 83  See www.naturalgaseurope.com/croatia-international-tender-in-adriatic-sea, April 2, 2014 (last visited: June 16, 2014). 84  Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia, concluded in Stockholm on November 4, 2009; text available at www.esiweb.org/pdf/croatia_slovenia_arbitration-agreement_2009.pdf (last visited June 16, 2014). 85  Strati, Greek Maritime Zones, supra note 20, 89.

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cesses, civil wars, and the eventual rearrangement of borders in the area aggravate the situation. These factors are all the more reason to strengthen the rule of law, clarify the confluence of international law rules applicable on the many layers of the problem, and achieve sustainable solutions. The situation underscores that settlement of disputes presents tangible advantages, and prevarication undermines everyone’s interest. The stakes are high, but the outcome would be of historical importance.

Chapter 10

International Legal Challenges Concerning Marine Scientific Research in the Era of Climate Change Alexander Proelss I

Introduction: Climate Engineering and International Law

In recent years, “climate engineering” (CE), or, alternatively, “geoengineering,” collective terms referring to large-scale technical interventions into the Earth’s climate system, have attracted widespread attention. Technologies covered by this concept aim at contributing to the fulfillment of the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC) of May 9, 19921 to “achieve [. . .] stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.2 The debate on these technologies initially originated from the field of natural sciences, but has increasingly been taken up by State governments, international organizations and non-governmental organizations (NGOs). It was fostered by the failure of the community of States to agree on stricter and globally applicable emission reduction standards following the expiration of the commitment period of the 1997 Kyoto Protocol on December 31, 2012.3 As is well-known, the 17th Conference of the Parties (COP) to the UNFCCC held in Durban in 2011 could only agree on an interim continuation of the Kyoto Protocol of those State parties continuously willing to be bound by its terms, and, on a mandate for negotiating the terms of a comprehensive post-Kyoto treaty until 2015 that will become globally effective by 2020. This delay is frequently held to jeopardize the two degree Celsius target referred to by the Copenhagen Accord.4

* Dr. Alexander Proelss, Professor of Public Law, in particular Public International Law and European Law. The author is Director of the Institute of Environmental and Technology Law (IUTR) of Trier University, Germany. 1  1771 U.N.T.S. 107. 2  Id., Article 2. 3  I .L.M. 37 (1998), 32. 4  See UN Doc. FCCC/CP/2009/L.7 of 18 December 2009, para. 1.

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According to a preliminary definition provided by the parties to the Convention on Biological Diversity of June 5, 1992 (CBD),5 geoengineering comprises “technologies that deliberately reduce solar insolation or increase carbon sequestration from the atmosphere on a large scale that may affect biodiversity (excluding carbon capture and storage from fossil fuels when it captures carbon dioxide before it is released into the atmosphere)”.6 This concept thus covers two categories of manipulation of the global climate ­system: (1) through interventions in the global carbon cycle (e.g., carbon dioxide removal—CDR), and (2) by shielding solar radiation (e.g., solar radiation management—SRM). Concerning marine climate engineering, most of the technologies that are presently debated aim at an increase of oceanic carbon uptake in upper seawater layers.7 This could be done (1) by fertilizing the water with iron to stimulate algal growth and intensify the biological carbon pump in areas of the ocean where algal growth is limited due to a lack of nutrients or trace elements such as nitrate or iron (ocean iron fertilization), (2) by way of dissolution of calcium-containing material (e.g., silicates and limestone), or through electrolytic removal of hydrochloric acid in special water treatment facilities (increasing ocean alkalinity), or (3) by the deployment of flap-valve operated ocean pipes that pump up cold deep seawater into less fertile waters at the surface (ocean upwelling). All of these CE methods intervene in the global carbon cycle and are thus qualified as CDR technologies. In contrast, another marine CE technology presently discussed, the modification of marine stratus clouds, is to be attributed to the category of SRM, as it aims at shielding solar radiation. According to this technology, sea salt particles are emitted by unmanned ships in order to increase aerosol salt concentrations as a means of changing the albedo in marine boundary layer clouds. It has been estimated that a global total of 23 m3 of seawater per second would have to be atomized to achieve the desired effect of increasing the backscattering of shortwave radiation.8 Against this background, large fleets of ships 5  1760 U.N.T.S. 143. 6  The definition is contained in a footnote to Decision X/33 on Biological Diversity and Climate Change adopted by the 10th Conference of the Parties (COP) to the CBD, available at http://www.cbd.int/decision/cop/?id=12299. 7  A detailed assessment of the scientific background and prospects of feasibility of these technologies is provided by Wilfried Rickels et al., Large-Scale Intentional Interventions into the Climate System? Assessing the Climate Engineering Debate (Kiel, 2011), 39–49. The study is available at http://www.kiel-earth-institute.de/scoping-report-climate-engineering.html. 8   See John Latham et al., “Global Temperature Stabilization via Controlled Albedo Enhancement of Low-level Maritime Clouds,” Philosophical Transactions of the Royal Society A, 366 (2008): 3969–3987.

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would be needed to distribute the sea salt aerosols in as uniform a manner as possible.9 It is important to note that all of the aforementioned technologies are characterized by a high degree of scientific uncertainty concerning their feasibility as well as their potential negative impacts on the environment. For example, modeling studies suggest that the redistribution of warm and cold water achieved by the deployment of pipes in ocean upwelling may lead to a disturbance of the global energy budget. The turning-off of the pumps could result in a rapid warming with average global temperatures that are higher than those in simulations in which artificial upwelling was not used.10 Concerning ocean iron fertilization, potential adverse environmental effects range from increased acidification of the seabed ecosystems, impacts on the food chain of the ocean, and changes in marine trace gas emissions that may lead to potential changes in the ozone layer.11 Taking into account that notwithstanding these risks, a future deployment of CE cannot be ruled out in light of the partial deadlock in international climate negotiations, scientific research for assessing the feasibility and effects of these CE technologies arguably becomes necessary prior to their implementation. Furthermore, taking into account the potential negative impacts on the environment, it is beyond controversy that any field research or implementation of marine CE technologies involves serious legal challenges. Due to the largely transboundary and potentially global character of CE, and keeping in mind that the feasibility of some of the technologies concerned is limited to areas beyond the limits of national jurisdiction such as the high seas, the legality of the respective technologies must be examined in accordance with public international law. Consequently, States are, according to the principle of prevention,12 obliged to select the most environmentally sound available technology when making recourse to technologies with the potential to damage the environment, and to respect the interests of other States and

9  Stephen Salter/Graham Sortino/John Latham, “Sea-going Hardware for the Cloud Albedo Method of Reversing Global Warming,” Philosophical Transactions of the Royal Society A, 366 (2008): 3989–4006. 10  Andreas Oschlies, “Climate Engineering by Artificial Ocean Upwelling: Channeling the Sorcerer’s Apprentice,” Geophysical Research Letters, 37 (2010), doi:10.1029/2009GL041961. 11  Rickels et al., Large-Scale Intentional Interventions, 48 with further references. 12   The principle of prevention has been considered as binding under customary international law by the International Court of Justice (ICJ); see ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, 14, para. 101. In contrast to the precautionary principle, it does not aim at risk management but at preventing environmental harm.

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those of the global commons.13 The procedural dimension of the due diligence requirement that forms the core of the principle of prevention also becomes manifest in the duty of States involved in activities that may result in adverse environmental impacts to inform, notify and negotiate (with) those States that are potentially affected by the conduct in question.14 However, apart from the general rules and principles of customary international law (whose relevance vis-à-vis CE cannot be assessed here in detail),15 public international law does currently not contain norms that were specifically developed and comprehensively made applicable to the research and deployment of CE. No international treaty has ever been adopted with the intention of regulating such activities.16 This does not mean, though, that 13  See Commentary to Article 3 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, para. 7, reprinted in: Yearbook of the ILC, 2001/II-2, 154. See also ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, 14, para. 228. 14  ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, 14, paras. 80 et seq. 15  A brief survey is given by Alexander Proelss, “Geoengineering and International Law,” Security and Peace, 30 (2012): 205–211; see also id., “Das Urteil des Internationalen Gerichtshofs im Pulp Mills-Fall und seine Bedeutung für die Entwicklung des Umweltvölkerrechts,” in: Matthias Ruffert (ed.), Liber Amicorum Meinhard Schröder (Berlin, 2012): 611–625, at 616 et seq. 16  The sole partial exception is the case of ocean iron fertilization, with regard to which the States parties to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of November 13, 1972 (I.L.M. 11 [1972], 1294) and the Protocol thereto of November 7, 1996 (I.L.M. 36 [1997], 7) have established an informal regime for the regulation of ocean iron fertilization experiments. In 2013, Australia, Nigeria and the Republic of Korea proposed an amendment to the London Protocol in order to extend its scope to the regulation of placement of matter for ocean fertilization and other marine geoengineering activities. This proposal was adopted by consensus in October 2013 but has yet to enter into force. It aims at providing a legally binding mechanism to regulate the placement of matter for ocean iron fertilization while at the same time “future-proofing” the Protocol so as to enable regulation of other marine geoengineering activities that fall within its scope. Article 1 No. 5bis contains the first definition of the term “marine geoengineering” that has been introduced into a binding international treaty. It should be noted, though, that the amendment, should it enter into force one day, will not automatically render the London Protocol applicable to all marine geoengineering techniques. Rather, its applicability will depend on a decision by the States parties to include the activity in question in the new Annex 4 to the Protocol. The equally new Annex 5 transforms the informal Assessment Framework (concerning ocean iron fertilization) into a legally binding text. For a recent treatment of the subject, see Sherry Broder and Marcus Haward, “The International Legal Regimes Governing Ocean Iron

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e­ xisting t­ reaties would not be applicable to CE activities. In many instances, multilateral environmental agreements such as, e.g., the UNFCCC and the CBD are drafted in comparatively broad terms, or they contain general principles and rules that then ought to be implemented and substantiated on the regional or domestic level (‘framework approach’). This often allows the rules contained in the agreement concerned, or in several agreements that are applicable in parallel respectively,17 to be applied to new phenomena that were unknown at the time the treaty was negotiated. It is particularly noteworthy that one of the two strategies provided by Article 3(3) of the Kyoto Protocol that serve to operationalize the general objective of the UNFCCC to stabilize the atmospheric concentrations of greenhouse gases at a level to prevent dangerous disruptions of the climate system, is defined as a “process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere” (Article 1 No. 8 UNFCCC). If applied to CE, it cannot be doubted that that definition indeed covers CDR technologies as they pursue the objective of removing greenhouse gases from the atmosphere. Existing climate protection law thus cannot, as far as CDR technologies are concerned, be interpreted as establishing a categorical or even partial prohibition of CE. A recent decision taken by the COP to the CBD arguably demonstrates that the same conclusion may be drawn with regard to the conservation of ­biodiversity. While the parties to the Convention stressed that no climaterelated geo-engineering activities that may affect biodiversity should take place “until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts”,18 it accepted that an exception may be made for “small scale scientific research studies that would be conducted in a controlled setting in accordance with Article 3 of the Convention, and only if they are justified by the need to gather specific scientific data and are subject to a thorough prior assessment of the potential impacts on the environment”.19 Notwithstanding the fact that ­decisions of the Fertilization,” in Regions, Institutions, and Law of the Sea: Studies in Ocean Governance, eds. Harry N. Scheiber and Jin-Hyun Paik (Leiden/Boston: Brill/Nijhoff, 2013). 17  For example, taking into account the potential negative impacts, marine CE will usually have to be assessed against the requirements of the United Nations Convention for the Law of the Sea of December 10, 1982 (LOS Convention ‒ 1833 U.N.T.S. 397), the UNFCCC, the CBD and, as the case may be, the London Convention and Protocol. 18  Decision X/33 on Biological Diversity and Climate Change adopted by the 10th Conference of the Parties (COP) to the CBD, available at http://www.cbd.int/decision/cop/?id=12299, para. 8 lit. w. 19  Ibid.

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COP to the CBD are not formally binding in terms of law,20 the aforementioned statement suggests that CE may, depending on the circumstances, be considered as lawful under international biodiversity conservation law, provided that the actions concerned can be qualified as scientific research. It is perhaps not without relevance that the duty to thoroughly assess the potential impacts on the environment to which the COP also referred in its decision fully reflects the present state of customary international law.21 In light of the fact that the CBD is generally applicable in areas both within and beyond the limits of national jurisdiction (cf. Article 4), the recent clarification made by the COP is also meaningful with regard to marine CE technologies. All the more, the question begs to be asked how these technologies are to be assessed on the basis of the international law of the sea. II

Marine Climate Engineering under the LOS Convention

The compatibility of marine CE with the requirements of the international law of the sea cannot be analyzed categorically. Rather, the assessment ought to differentiate between the specific technologies, depending on: (1) the mode of operation of the technology concerned, (2) the objectives pursued with it, (3) the area where the technology is deployed, and (4) the environmental risks involved in the technology. For example, as far as the legality of ocean iron fertilization in areas beyond the limits of national jurisdiction is concerned, the central question to be addressed is whether the introduction of iron into the marine environment can be considered as a placement of matter for a purpose other than the mere disposal thereof that is not contrary to the aims of the pertinent agreements.22 If this question would have to be answered in the affirmative, ocean iron fertilization would not constitute dumping in terms of the LOS Convention23 and the London Convention/Protocol24 and would, thus, not be subjected to the specific regulatory mechanisms established by these a­ greements. Whether or not such a positive answer can be given is not 20  See Kerstin Güssow et al., “Ocean Iron Fertilization: Why further Research is Needed,” Marine Policy 34 (2010): 911–918, at 915. 21  I CJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, 14, para. 204. 22  See Rosemary Rayfuse/Mark Lawrence/Kristina Gjerde, “Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Sea Uses,” International Journal of Marine and Coastal Law 23 (2008): 297–326, at 312–317; Güssow et al., “Ocean Iron Fertilization,” at 914 et seq. 23  Cf. Article 1 (5)(b)(ii) and Article 210 LOS Convention. 24  Cf. Article III(1)(b)(ii) London Convention and Article 1(4) No. 2.2 London Protocol.

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fully clear, though, as it cannot be ruled out according to the present state of science that ocean fertilization has potentially damaging effects on human health, living resources or marine species.25 1 Ocean Upwelling under the LOS Convention As has recently been demonstrated in a publication co-authored by this author,26 the deployment of oceanic pipes (e.g., for use in ocean upwelling) gives rise to completely different legal questions, including (1) issues of jurisdiction, (2) deployment requirements, and (3) removal requirements. a) Issues of Jurisdiction and Deployment Requirements Concerning the first set of questions, Part XIII, section 4 of the LOS Convention contains five articles (Arts. 258 to 262) dealing with scientific research­

Figure 10.1

Image of the deployment of the single pump.27

25  See only Richard Lampitt et al., “Ocean Fertilization: A Potential Means of Geo­ engineering?,” Philosophical Transactions Of The Royal Society A 366 (2008): 3919–3945. 26   Alexander Proelss/Chang Hong, “Ocean Upwelling and International Law,” Ocean Development and International Law 343 (2012): 371–385. 27  Angelicque White et al., “An Open Ocean Trial of Controlled Upwelling Using Wave Pump Technology,” Journal of Atmospheric and Oceanic Technology, 27 (2010): 385–396, at 389. In most instances, oceanic pipes are attached to free-floating surface buoys. A valve that opens and closes at opposite phases of a wave cycle is installed at the bottom end of each pipe. The plastic tubes attached to the buoys can be up to 300 m long or even more.

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installations or equipment in the marine environment that are potentially applicable to oceanic pipes. However, their qualification as installations or equipment in terms of these provisions presupposes that their deployment would constitute marine scientific research (MSR). In the absence of an authoritative legal definition contained in the LOS Convention, MSR shall, for the purposes of the present contribution, be understood as any study and experimental work designed to increase human knowledge of the seabed or the subsoil, the water column, or the atmosphere directly above the water.28 Upwelling pipes are primarily envisaged to enhance biological production, sequester atmospheric CO 2 and lower the sea surface temperature. Given these purposes, it seems difficult to regard ocean upwelling as MSR in terms of the aforementioned working definition, since upwelling’s primary goal of CDR, as well as the development of fisheries, is not to increase human knowledge of the marine environment. Having said that, obtaining knowledge of the marine environment constitutes the initial stage of both kinds of activities, as seawater temperature, density, ingredient of nutrients and water currents are investigated at the proposed sites. Thus, it is submitted that while the deployment of upwelling pipes for CDR or enhancement of fishery production on a large and/ or commercial scale cannot be regarded as MSR, assessing the preconditions for ocean upwelling as well as testing artificial pipes meets the requirements of that concept. Given that ocean pipes used for artificial upwelling are comparatively small objects made of plastic whose life span is likely to expire within weeks after deployment,29 an application of the relevant criteria of size, duration and function30 leads to the conclusion that ocean upwelling pipes, as long as their use has not entered the commercial deployment phase, are to be considered as MSR equipment. Consequently, while the right to establish safety zones only exists in respect of scientific research installations,31 Article 261 LOS Convention emphasizes the general requirement of non-interference with shipping routes, which is also applicable to equipment. This provision clearly 28  Alfred A.H. Soons, Marine Scientific Research and the Law of the Sea (The Hague, 1982): 124. See also UNCLOS, Off. Rec., Vol. VI, 89 (A/CONF.13/42). Cf. Edward Duncan Brown, The International Law of the Sea, Vol. I (Dartmouth, 1994): 418 et seq. 29  Angelicque White et al., “Wave Pump Technology,” at 390. 30  Soons, Marine Scientific Research, 235; see also Katharina Bork, Der Rechtsstatus von unbemannten ozeanographischen Messplattformen im internationalen Seerecht (Baden-Baden, 2011): 66–67; Florian H. Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and other Platforms in International Law (The Hague, 2005): 138. 31  See LOS Convention, Article 260.

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corresponds with Article 240 (c) according to which MSR is not to unjustifiably interfere with other legitimate uses of the sea compatible with the Convention. Furthermore, Article 262 LOS Convention provides that installations or equipment are to bear identification markings indicating the State of registry or international organization to which they belong, and warning signals. This suggests that scientific research installations and equipment, similar to vessels, have to be registered with a State or an international organization.32 Concerning jurisdiction over upwelling pipes in the territorial sea, the coastal State is generally free to deploy such devices. This freedom is not unlimited, though, as the coastal State is, if the pipes are used for MSR, obliged to adhere to the general rules and principles contained in Arts. 238–241 LOS Convention as well as those codified in Arts. 260–262 LOS Convention. Furthermore, according to Article 24(1) LOS Convention, the coastal State “shall not hamper the innocent passage of foreign ships through the territorial sea [. . .]”, which is why the deployment of ocean pipes, irrespective of their purpose, ought not to interfere with the right of innocent passage of other States. Having said this, it has been submitted that the coastal State is, based on Article 21(1)(b) and (g) LOS Convention, entitled to request foreign ships to avoid certain areas of its territorial sea where ocean pipes have been deployed, provided that this measure does not make innocent passage impossible, or hamper innocent passage in an unjustifiable manner respectively.33 In contrast, other States do not have the right to deploy ocean pipes in a foreign territorial sea without the coastal State’s permission, no matter for what the pipes are actually used (cf. Article 245 LOS Convention). Similar to the situation in the internal waters, the jurisdiction of the coastal State thus enjoys priority over the jurisdiction of the State of registry of the installations or equipment. The situation is more complicated in the Exclusive Economic Zone (EEZ), where the coastal State enjoys sovereign rights, inter alia, for the purpose of “exploring and exploiting, conserving and managing the natural resources” and for the “economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds” (Article 56(1)(a) LOS Convention). The fact that testing and deploying ocean upwelling pipes involves some kind of exploration of ocean energy and living organisms provokes the question whether this suffices to conclude that the sovereign rights of the coastal State are affected. Arguably, a closer examination of Article 56(1)(a) LOS Convention (“for the purpose of”) reveals that the purpose of the deployment, rather than the means, must be regarded as the decisive factor 32  See Wegelein, Marine Scientific Research, 148–150. 33  Proelss/Chang, “Ocean Upwelling,” at 375 et seq.

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for assessing whether or not the sovereign rights or jurisdiction of the coastal State are affected. Having said that, Article 56(1)(b)(i) and (ii) LOS Convention clarifies that the coastal State also has jurisdiction with regard to the establishment and use of installations and structures on the one hand and in respect of MSR on the other. Concerning these basis of jurisdiction, the criteria mentioned above governing the differentiation between installations and equipment in the context of MSR as provided for in Article 258–262 LOS Convention (size, duration of deployment, function) are applicable also to Articles 56 and 60,34 which is why ocean pipes used in upwelling cannot be qualified as “installations” or “structures.” Ocean pipes are comparatively small objects with an average diameter of one meter, whose life span is likely to expire within weeks after deployment, and their single function is to pump cold, nutrient-rich water to the ocean surface. The coastal State is thus not entitled to exercise jurisdiction over these objects on the basis of Article 56(1)(b)(i) in conjunction with Article 60 LOS Convention. Rather, its jurisdiction stems from Article 56(i)(b)(ii) in conjunction with Article 246 LOS Convention. Consequently, while the coastal State has the right to regulate, authorize and conduct the deployment of ocean pipes used for MSR in its EEZ or on its continental shelf (cf. Article 246(1) LOS Convention), its scope of discretion concerning the decision to grant consent to third State activities is limited by Article 246(3) LOS Convention. This limitation applies if and to the extent to which the deployment of ocean pipes is not of direct significance for the exploration and exploitation of natural resources, or touches upon any other of the motives mentioned in Article 246(5) of the LOS Convention. However, if ocean pipes are deployed for the purpose of CDR following the initial MSR stage, the sovereign rights and jurisdiction of the coastal State in terms of Article 56 LOS Convention are not affected. The fact that ocean upwelling is also not included in the rights of third States according to Article 58(1) LOS Convention renders Article 59 LOS Convention applicable to ocean upwelling. Article 59 LOS Convention covers economic uses other than those mentioned in Article 56(1) and Article 58(1), as well as other non-­ economic uses of the EEZ, such as, e.g., the operation of ocean data acquisition systems.35 Given that Article 59 LOS Convention constitutes a mere conflict rule instead of assigning sovereign rights or jurisdiction to any of the groups of States concerned, activities covered by its terms are, in absence of a user 34  See Proelss/Chang, “Ocean Upwelling,” at 376 et seq.; Bork, Rechtsstatus, 66 et seq. 35  Robin R. Churchill/A. Vaughan Lowe, The Law of the Sea (Manchester, 1999): 414; see also Bork, Rechtsstatus, 105–106.

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conflict, generally to be considered as lawful. Consequently, the deployment of ocean pipes for the purpose of CE in a State’s EEZ is not subject to the jurisdiction of either the coastal State or third States, and it ought to be done in a way that takes due regard to the interests of other States. Furthermore, the State deploying the pipes is entitled to regulate their emplacement and operation, and it is the addressee of the rules governing State responsibility and liability in case damage occurs. Finally, Article 87(1) LOS Convention clarifies that irrespective of the purpose pursued with these devices, all States are generally free to deploy ocean upwelling pipes in the high seas, as long as the deployment is exercised under the conditions laid down in the LOS Convention and by other rules of international law. Similar to the situation in the EEZ (cf. Article 59 LOS Convention),36 this freedom ought to be exercised with due regard for the interests of other States in their exercise of their rights under the LOS Convention (cf. Articles 56(2), 59, 87(2) LOS Convention). In this respect, it has been submitted that the most realistic and transparent way for avoiding potential conflicts between the deployment of ocean upwelling pipes and other legitimate maritime activities such as, say, shipping, ought to be seen in the development of non-binding guidelines for the deployment of ocean pipes, and that in light of the fact that ocean upwelling is at least related to MSR, or constitutes MSR respectively, the Advisory Board of Experts on the Law of the Sea (ABE-LOS) of the UNESCO’s Intergovernmental Oceanographic Commission (IOC) could constitute a competent forum for the drafting of such guidelines.37 b) Removal Requirements It remains to be observed what is required from the employing State if ocean pipes float (or perhaps “straddle”) into an area under another State’s jurisdiction, or, if the purpose pursued with the deployed devices has been achieved. Concerning the first issue, as the entry into a foreign State’s EEZ or territorial sea could affect that State’s sovereign rights or jurisdiction, or sovereignty respectively, avoidance of unauthorized and unheralded entrance of upwelling 36  It is a matter of controversy whether the regime of the EEZ, as far as the resolution of user conflicts is concerned, is based on the notion of a shift of emphasis in favour of the coastal State; see David Joseph Attard, The Exclusive Economic Zone in International Law (Oxford, 1987): 63, at 73–75; Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of user Conflicts Revisited,” Ocean Yearbook, 26 (2012): 87–112, at 91–109. 37  See Proelss/Chang, “Ocean Upwelling,” at 380.

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pipes into an area under another State’s jurisdiction should be a priority followed by the emplacing State. Having said this, the international law of the sea remains silent on how this objective can be met, and whether the employing State as well as the affected State are subject to legal obligations and rights in such a situation. It has been submitted that the Draft Convention on the Legal Status of Ocean Data Acquisition Systems, Aids and Devices (ODAS)38 explicitly sets forth conditions on the recovery and return of ODAS and could thus serve as a model for guidelines specifically dealing with ocean upwelling pipes.39 This text aims at obliging a coastal State to inform the State of registry about ODAS found in areas within its jurisdiction, and to either return the ODAS or permit the owner or operator to recover it. In contrast, ODAS that have entered the internal or territorial waters of a State would not need to be returned. It should be noted, though, that the Draft Convention has virtually remained untouched since 1993, and no indications exist whatsoever that this “treaty ruin” could ever enter into force. With regard to removal requirements coming into effect after the objectives pursued with the upwelling pipes have been achieved, the obligations arising from Part XII LOS Convention deserve particular attention. Given that the pipes are introduced into the marine environment “for a purpose other than the mere disposal thereof” (Article 1(1) No. 5 (b)(ii) LOS Convention), the deployment of such objects cannot be regarded as “dumping” in terms of Article 209 in conjunction with Article 1(1) No. 5 LOS Convention. Despite this, it is submitted that Articles 60(3), 248(d) and 249(1)(g) LOS Convention are specific expressions of the general notion that manmade objects intentionally introduced into the marine environment have to be removed once the objective pursued with them has been achieved, or abandoned due to expiry of their life span respectively.40 This submission is reinforced by the fact that ­abandonment of disused or damaged pipes ought to be regarded, comparable to plastic garbage, as pollution of the marine environment in terms of Article 1(1) No. 4 LOS Convention. 2 Marine Stratus Cloud Modification and International Law Concerning the second marine CE technology addressed above, the compatibility of marine stratus cloud modification with the international law of the 38  The text of the 1993 Ocean Data Acquisition Systems, Aids and Devices (ODAS) Draft Convention is available at unesdoc.unesco.org/images/0009/000979/097992eb.pdf. 39  Proelss/Chang, “Ocean Upwelling,” at 380. 40  Proelss/Chang, “Ocean Upwelling,” at 380 et seq.

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sea has so far not been dealt with in legal literature. Admittedly, given that the potential impacts of this technology will mainly affect the atmosphere, or the ozone layer respectively, injecting sea salt particles from ships to increase aerosol concentrations is primarily not a law of the sea problem. Rather, the legality of marine stratus cloud modification is to be assessed on the basis of the Vienna Convention for the Protection of the Ozone Layer of March 22, 198541 and the Convention on Long-Range Transboundary Air Pollution of November 13, 1979 (CLRTAP).42 This assessment cannot be undertaken here.43 Having said that, the international law of the sea is, indeed, affected by the need for large fleets of unmanned ships to distribute the sea salt aerosols. In this respect, it is submitted that the deployment of vessels for the purpose of marine cloud modification in a foreign State’s internal waters and territorial sea requires that State’s approval. While in the territorial sea, one could prima facie consider to regard the deployment of such vessels as an exercise of the right of innocent passage, it should be noted that according to Article 18(2) LOS Convention, “passage” can only be deemed to have taken place when it is continuous and without interruption. The CE technology relevant here is not limited to mere passage, but instead, due to the fact that seawater will be injected into the atmosphere to stimulate cloud modification, requires vessels to remain for longer periods of time at particular and appropriate locations in the territorial sea. Although Article 18(2) LOS Convention acknowledges that passage can include stopping and anchoring, this can only take place as part of “ordinary navigation” or when necessary due to force majeure, distress or when assisting another ship. Judged against this definition, traversing the coast, or using a foreign State’s territorial sea respectively, for the purpose of marine cloud modification does arguably not constitute passage in the sense of the LOS Convention. Even if one would consider the deployment of cloud ­modification vessels as passage in terms of Article 18 LOS Convention, foreign States may only rely on the right of innocent passage if the transit of their ships is innocent and does not disturb the peace, security or public order in the coastal State (cf. Article 19(1) LOS Convention). Article 19(2) LOS Convention clarifies that activities such as research and surveying (sub-part j) and other activities not directly related to transit (sub-part l) cannot be considered as 41   I .L.M. 26 (1987), 1529. 42  1302 U.N.T.S. 217. 43  An initial survey is provided by Rex J. Zedalis, “Climate Change and the National Academy of Sciencesʼ Idea of Geoengineering: One American Academy’s Perspective on First Considering the Text of Existing International Agreements,” European Energy and Environmental Law Review (2010): 18–32, at 21–23.

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innocent. Consequently, marine stratus cloud modification in a foreign territorial sea requires authorization of the coastal State even if it is conducted for research purposes. Concerning the EEZ, the coastal State would be entitled to request authorization for foreign marine stratus cloud modification activities if the vessels to be used would have to be regarded as being operated for purposes of MSR (cf. Article 56(1)(b)(ii) in conjunction with Article 246 LOS Convention). According to the working definition suggested above, MSR can be understood as any study and experimental work designed to increase human knowledge of the seabed or the subsoil, the water column, or the atmosphere directly above the water. As the introduction of seawater particles in order to modify marine clouds affects layers of the atmosphere at a height of 1 to 2 km above the earth surface, the deployment of vessels necessary for this technology, even when performed on an exploratory basis, cannot be qualified as MSR. For this reason, the coastal State’s jurisdiction in terms of Article 56(1)(b)(ii) in conjunction with Article 246 LOS Convention is not affected. However, it must not be concluded from the foregoing that any CE operation conducted by ships of a third State would automatically be permissible in a foreign EEZ. Whether or not third States are to be considered as being privileged rather depends on whether the activity concerned is in sufficiently close connection with the freedoms of navigation, overflight or laying of submarine pipelines and cables mentioned in Article 58(1) LOS Convention. This could be argued because cloud modification activities at sea must be carried out using ships. Having said that, navigation only constitutes the means by which marine stratus cloud modification shall be performed. In contrast, the CE activity itself is the dominant feature, i.e., the injection of saltwater aerosols into the air. It is doubtful whether a sufficiently close connection with the freedom of navigation in terms of Article 58(1) LOS can be seen in such a situation. Even in regard to military activities, for which the freedoms of navigation and overflight play a significantly stronger role than in the situation described above, it remains disputed whether Article 58(1) LOS Convention is applicable. Furthermore, it is relevant that the results of marine stratus cloud modification activities are not intended to serve navigation. As cloud modification activities are thus not included among the sovereign rights or jurisdiction of the coastal State and are also not covered by the freedom of navigation enjoyed by third States, the equity clause contained in Article 59 UNCLOS again becomes applicable.44 That marine cloud modification activities in a coastal State’s own EEZ as well as in a foreign EEZ can be 44  See also Bork, Rechtsstatus, 105.

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permissible provided that the customary duty of due regard is respected, is supported by the wording of that provision. Article 59 LOS Convention states that the interests of the international community must be respected as a whole. It is submitted that these interests include the prevention of adverse consequences of climate change. On the other hand, it must be ensured through specific navigational standards that international shipping is not significantly disrupted as a consequence of CE operation. Article 211(5) LOS Convention, which subjects coastal State measures for the prevention of pollution from foreign ships in its EEZ to the approval of the International Maritime Organization (IMO), indicates that the IMO would have to be considered as the appropriate forum also for ensuring safety in maritime navigation in light of marine stratus cloud modification activities. Finally, cloud modification activities undertaken on the high seas would, similar to the case of ocean upwelling, have to be considered as being covered by the freedoms of the high seas. Article 87 LOS Convention makes clear, however, that the freedoms of the high seas are to be “exercised under the conditions laid down by this Convention and by other rules of international law.” In addition to the freedom of navigation of other States, the provisions of Part XII LOS Convention are particularly relevant in this context. The influence of cloud modification activities on ocean circulation as well as the risk of marine pollution posed by non-seawater condensation nuclei45 have been considered low until now, but have not been sufficiently researched. Thus, a potential conflict can be seen between the objectives pursued by the CE method to counteract climate change and the potential hazards of this activity for specific areas of the environment. How such conflicts of objectives can be resolved is a matter for future research.46 III Conclusion The example of marine stratus cloud modification shows that the question of legality of the new technologies examined here goes well beyond the scope of the international law of the sea and touches upon central aspects of public international law in general. Even if individual CE technologies should turn out to be compatible with the LOS Convention and other international 45  Cloud condensation nuclei are small particles of about 0.2 µm (approximately 1/100th of the size of a cloud droplet) about which cloud droplets coalesce. 46  See Alexander Proelss, “International Environmental Law and the Challenge of Climate Change,” German Yearbook of International Law, 53 (2010): 65–88, at 81–84.

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a­ greements devoted to the protection of the marine environment, this does not automatically render their research or deployment lawful under other pertinent treaties, or, the principles of customary international law respectively. The multidimensional nature of the issue becomes particularly manifest when taking into account the cautious statements made by the COP to the CBD on the one hand, and, the limited approach on which the UNFCCC is based on the other. In light of the potentially adverse environmental effects of marine stratus cloud modification as well as its qualification as SRM, there is thus a good case to argue that this technology, if deployed on a broader scale, cannot be justified under international law as it stands today. Despite this, CE is just one manifestation of the fact that technological progress is amongst the primary reasons that pose considerable challenges to the international law of the sea. While the LOS Convention was, according to its preamble, concluded in a spirit to “settle [. . .] all issues relating to the law of the sea” and thus provides a legal framework that has been envisaged to be applicable also to modern developments, the examples of ocean iron fertilization, ocean upwelling and marine stratus cloud modification demonstrate that there is a clear need in the “post-codification era” (Tullio Treves) to substantiate the general requirements contained in the Convention by way of establishing specific sub-regimes. Whether this need is best accommodated by way of negotiating binding international agreements or by way of adoption of soft-law guidelines cannot be answered here in a definite manner. It should be noted, though, that recent years have shown that effective ocean governance does not necessarily require binding law. Within the legal framework established by the LOS Convention, rules of deployment and other guideline documents have quite often turned out to constitute functioning regimes and as such have helped to avoid the burdensome negotiation of a new treaty that might have ultimately turned out as lacking sufficient support of the international community. It remains to be seen whether this conclusion will hold true with regard to marine issues in the era of climate change.

Chapter 11

‘Idle Iron’ versus ‘Rigs-to-Reefs’: Surviving Conflicting Policy Mandates in the Gulf of Mexico Richard J. McLaughlin Introduction This chapter examines current international and domestic laws and regulations relating to the removal of unused or abandoned offshore structures and their reuse as artificial reefs. It explains how the federal government recently found itself whipsawed by contending stakeholder groups, and describes the steps that the government is taking to ameliorate the policy dilemma that currently exists. Since production began in 1947, more than 40,000 exploratory and commercially producing wells have been drilled on the Outer Continental Shelf of the Gulf of Mexico. With nearly 3,500 currently existing structures and 33,000 miles of pipelines, the Gulf of Mexico continues to be the most extensively developed offshore production area in the world.1 Offshore fields in other oceans are also expanding rapidly, most notably in the Middle East and in newly discovered fields in ocean areas off East and South Asia, Western Africa, Brazil and in the Arctic Ocean. The number of active offshore oil rigs in the world has expanded from 540 in 2011 to an estimated 619 by the end of 2013.2 Given the relatively long history of drilling in many offshore areas, hundreds of oil rigs have either already reached the end of their useful lives or will within the next 5–20 years. Over time, the operating cost of a particular offshore * Endowed Chair for Coastal and Marine Policy and Law; Harte Research Institute for Gulf of Mexico Studies, Texas A&M University—Corpus Christi. J.S.D. 1997, School of Law (Boalt Hall), University of California at Berkeley; L.L.M. 1987, University of Washington; J.D. 1985, Tulane University; B.A. 1978, Humboldt State University. The author would like to thank Elena Kobrinski for her research assistance. Financial support was provided by the Harte Research Institute and the National Oceanic and Atmospheric Administration’s Environmental Cooperative Science Center under grant number NA11SEC4810001. 1  Mark J. Kaiser, “The Louisiana Artificial Reef Program,” Marine Policy 30 (2006), 605. 2   Luke Pachymuthu & Manash Goswami, “What jobs offer the highest pay?,” Reuters News Service, Oct. 15, 2012, available at http://www.reuters.com/article/2012/10/15/usoil-rigs-idUSBRE89D0GK20121015.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004299610_013

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s­ tructure exceeds the revenue brought in by the hydrocarbon. When this point is reached, a decision may be made to shut-in production and to abandon or decommission the structure. Drilling platforms generally consist of two major parts. First, there is an above-water deck to hold the drilling and processing equipment, crew’s quarters, and heliport. This deck is supported by a tubular steel structure called a template or jacket that extends to the seafloor. Offshore structures may also include additional equipment on the seabed itself, such as wellheads, risers, pipelines, and cables. When these structures have outlived their useful lives, they begin to fatigue and the risk of damage increases. Older abandoned structures pose hazards to navigation, commercial fishing, and the quality of the marine environment. This risk increases substantially during storms. Concurrently, offshore platforms have been recognized as de facto artificial reefs for many decades. Soon after they are installed, marine structures begin to host a large assortment of sessile invertebrates such as barnacles, bryozoans, hydroids, mussels, oysters, corals and sponges. These organisms in turn attract mobile invertebrates and fish species. In the United States, federal and state governments have enacted formal policies beginning with the National Fishing Enhancement Act of 1984 to “promote and facilitate responsible and effective efforts to establish artificial reefs . . . constructed or placed for the purpose of enhancing fishery resources and commercial and recreational opportunities.”3 As a consequence of these policies over 400 oil and gas structures have been left on the seabed and converted into artificial reefs in the Gulf of Mexico (see Figure 11.1). Notwithstanding their value as artificial reefs, extensive damage to existing offshore structures caused by a series of strong hurricanes, coupled with public concern over potential oil spills in the shadow of the massive Macondo spill in 2010, recently prompted the U.S. Department of the Interior to accelerate the removal of abandoned offshore installations in the Gulf of Mexico. These newly released regulatory changes, known as the “Idle Iron” policy, have brought government regulators into conflict with coastal communities that rely on existing offshore structures for recreational fishing, diving and other purposes. Coalitions of influential stakeholders have placed pressure on the federal government to rescind or modify its idle iron policies.

3  National Fishing Enhancement Act of 1984, P.L. 98–623, Tit. 2 (Nov. 8, 1984), 33 U.S.C. 2101 et seq.

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Figure 11.1

1

Rigs-to-reef locations in the Gulf of Mexico.4

International Regulation of Abandoned Offshore Structures and Rigs to Reefs

International concern regarding the hazards to navigation and other marine uses that potentially could be caused by abandoned offshore structures was first expressed during negotiations of the 1958 Convention on the Continental Shelf (1958 Convention). The treaty was ratified by the United States and 53 other States.5 Article 5(5) of the 1958 Convention specifically requires that “any installations which are abandoned or disused must be entirely removed.”6 Since it was adopted in 1958, this preference for total removal and a clean sea floor has served as a primary governing principal of offshore installations. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Dumping Convention or LDC), also 4  Les Dauterive, “Rigs-to-Reefs Policy, Progress, and Perspective,” Dept. of the Interior, Minerals Management Service, Gulf of Mexico OCS Region, OCS Report/MMS 2000-073 (Oct. 2000), fig. 3. 5  Convention on the Continental Shelf, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 (opened for signature Apr. 29, 1958, entered into force June 11, 1964). 6  Ibid (italics added).

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governs the deliberate disposal at sea of offshore platforms.7 Under the LDC, offshore installations and structures can be disposed of at sea only under authority of a general permit.8 A permit is granted only after a full risk and environmental impact assessment is completed. Importantly, the placement of structures on the seabed for purposes other than disposal, including conversion to an artificial reef, are not classified as dumping under the LDC.9 Language similar to the 1958 Convention calling for the removal of abandoned or disused structures on the seabed, but with slightly more flexibility, is contained in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Article 60(3) provides that all nations shall remove from their exclusive economic zones and continental shelves all abandoned or disused installations or structures taking into account any generally accepted international standards established by the International Maritime Organization (IMO).10 The U.S. is not a party to UNCLOS, but it has claimed that most of the Convention, including Article 60, represents international customary law.11 Pursuant to the mandate contained in UNCLOS, in 1989 the IMO adopted Final Guidelines and Standards (IMO Guidelines) for the removal and disposal of offshore platforms to assist coastal States in implementing national programs to deal with abandoned offshore installations.12 The IMO Guidelines

7  International Legal Material, Vol. 11 (1972), 1302. 8  Ibid., Art. 4(1)(c). 9  There is a 1996 Protocol to the LDC that entered into force on March 24, 2006 that currently has 41 States Parties (the United States is not a party). However, the 1996 Protocol also does not classify converting a rig to a reef as dumping. 10  United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 3 (opened for signature 10 December 1982, entered into force 16 November 1994). Article 60(3) reads as follows: “Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means of giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other states. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.” It is important to note that Article 60(3) only governs offshore structures in the Exclusive Economic Zone or Continental Shelf. Coastal States have sovereignty in their internal waters, archipelagic waters and territorial sea. 11  Restatement (Third) of Foreign Relations Law of the United States (1987), Part 5, 5. 12  International Maritime Organization, “Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive

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reiterate the general principal that coastal States have an obligation to remove abandoned and disused offshore structures.13 However, they also explicitly allow non-removal and partial removal on a case by case basis depending on the impact on surface or sub-surface navigation, commercial fisheries, military activities, pollution of the marine environment, dangers associated with removing the structure, assignment of liability, and other uses of the sea.14 It

Economic Zone,” 16th Ass. Res. A672, MSC 57/27/Add.2 (Oct. 1989), Annex 31. The Guidelines and standards are also reprinted as an appendix in George C. Kasoulides, “Removal of Offshore Platforms and the Development of International Standards,” Marine Policy 13 (1989), 263–65. 13  Ibid., 1.1. See Richard J. McLaughlin, “Coastal State Discretion, U.S. Policy, and the New IMO Guidelines for the Disposal of Offshore Structures: Has Article 5(5) of the 1958 Continental Shelf Convention Been ‘Entirely Removed?,’ ” Territorial Sea Journal 1 (1991), 250–55 (describes the history of the IMO negotiations and the positions of affected States Parties). 14  Ibid., 2.1. Additional obligations with respect to installations or structures that are not entirely removed include: “3.3 Removal should be performed in such a way as to cause no significant adverse effects upon navigation or the marine environment. Installations should continue to be marked in accordance with IALA recommendations prior to the completion of any partial or complete removal that may be required. Details of the position and dimensions of any installations remaining after the removal operations should be promptly passed to the relevant national authorities and to one of the world charting hydrographic authorities. The means of removal or partial removal should not cause a significant adverse effect on living resources of the marine environment, especially threatened and endangered species.  3.6 Any abandoned or disused installation or structure, or part thereof, which projects above the surface of the sea should be adequately maintained to prevent structural failure. In cases of partial removal referred to in paragraphs 3.4.2 or 3.5, an unobstructed water column sufficient to ensure safety of navigation, but not less than 55 m, should be provided above any partially removed installation or structure which does not project above the surface of the sea.  3.8 The coastal State should ensure that the position, surveyed depth and dimensions of material from any installation or structure which has not been entirely removed from the sea-bed are indicated on nautical charts and that any remains are, where necessary, properly marked with aids to navigation. The coastal State should also ensure that advance notice of at least 120 days is issued to advise mariners and appropriate hydrographic services of the change in the status of the installation or structure.  3.9 Prior to giving consent to the partial removal of any installation or structure, the coastal State should satisfy itself that any remaining materials will remain on location on the sea-bed and not move under the influence of waves, tides, currents, storms or other foreseeable natural causes so as to cause a hazard to navigation.

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is important to note that although the IMO Guidelines are not mandatory and are only recommended for consideration by IMO member States, they have been very influential in the development of domestic legislation regulating abandoned offshore structures, including those in the United States.15 Enforcement of International and Domestic Laws Some commentators, including this author, suggested when the Final IMO Guidelines were released that the new case by case approach may lead some nations to selectively implement the removal requirement.16 This was especially true for developing States with national oil companies (NOC) where the costs of implementation are borne by the nation itself. Governments, through NOCs, are both operators and regulators and have direct or indirect disincentives to comply with international standards.17 This concern, in some cases, was justified.18 Even in developed nations like the United States, strong regulations requiring removal of abandoned offshore structures and installations were not being strictly enforced. The Federal Outer Continental Shelf Lands Act (OCSLA) and its implementing regulations establish an obligation for operators to decommission seafloor obstructions, such as  3.10 The coastal State should identify the party responsible for maintaining the aids to navigation if they are deemed necessary to mark the position of any obstruction to navigation, and for monitoring the condition of remaining material. The coastal State should also ensure that the responsible party conducts periodic monitoring, as necessary, to ensure continued compliance with these guidelines and standards.  3.11 The coastal State should ensure that legal title to installations and structures which have not been entirely removed from the sea-bed is unambiguous and that responsibility for maintenance and the financial ability to assume liability for future damages are clearly established.” 15  See McLaughlin, “Coastal State Discretion,” supra note 13. See also Zhiguo Gao, “Current Issues of International Law of Offshore Abandonment, With Special Reference to the United Kingdom,” Ocean Development and International Law 28 (1997), 59, 62. 16  See also Gao, supra note 15. 17  Youna Lyons, “Abandoned Offshore Installations in Southeast Asia and the Opportunity for Rigs-to-Reefs,” National University of Singapore Centre for International Law Working Paper (2012), 2–3 (describing how nations in Southeast Asia implement international laws relating to obsolete offshore installations). 18   See “Decommissioning Thought-Leaders Share Insight Into Latest Asia-Pacific Developments,” 5th Annual Offshore Decommissioning Training Workshop, Asia Pacific, available at http://uk.decomworld.com/fc_nei_decomlz/lz.aspx?p1=05506541S4232&CC= &p=1&cID=0&cValue=1 (a third of the estimated 1,700 offshore facilities in the broader Asia-Pacific region need to be decommissioned but have not been due to a lack of regulation and political will from national oil companies and governments).

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offshore platforms, within one year of lease termination, or prior to the end of the lease if either the operator or the federal government deems the structure unsafe, obsolete, or no longer useful for operations.19 Whether or not the government strictly enforced these removal requirements was of minor concern to the public in the years prior to the massive Macondo explosion and oil spill on April 20, 2010.20 Shortly after the spill, however, public scrutiny and concern was exacerbated when investigative journalists reported that 3,500 offshore wells in the Gulf had been designated as “temporarily abandoned” by the Federal government. According to these published reports: Regulations for temporarily abandoned wells require oil companies to present plans to reuse or permanently plug such wells within a year, but the [Associated Press] found that the rule is routinely circumvented, and that more than 1,000 wells have lingered in that unfinished condition for more than a decade. About three-quarters of temporarily abandoned wells have been left in that status for more than a year, and many since the 1950s and 1960s—even though sealing procedures for temporary abandonment are not as stringent as those for permanent closures.21 In the aftermath of the devastating Macondo spill, the Minerals Management Service (MMS) of the U.S. Department of the Interior, the federal agency in charge of regulating offshore hydrocarbon production, was reorganized into the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE). A moratorium on offshore drilling was enacted so that new rules could be developed to avoid future oil spill disasters. In addition to the Macondo spill, there were several severe storms and hurricanes between 2004 and 2008 in the Gulf of Mexico that prompted a reexamination of existing policy. These severe weather events damaged active and inactive oil and gas infrastructure in the Gulf of Mexico. Inactive wells and platforms are especially susceptible to adverse effects of severe weather. Inactive platforms may shift and topple during storms, potentially causing significant environmental and safety problems, including release of hydrocarbons 19  43 U.S.C. 1134(a) and implementing regulations at 30 C.F.R. 25.1725(a) (2013). 20  In fact, large numbers of removals have occurred. During the past six decades over 2200 structures have been decommissioned and removed from the Gulf of Mexico. Kaiser, supra note 1, at 607. 21  Associated Press, “27,000 Abandoned Oil and Gas Wells in the Gulf of Mexico Ignored by Government, Industry,” New Orleans Times-Picayune, July 7, 2010, available at http://www .nola.com/news/gulf-oil-spill/index.ssf/2010/07/27000_abandoned_oil_and_gas_we.html.

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into the surrounding waters, damage to operating infrastructure, and creation of new navigation hazards.22 After the moratorium had expired, BSEE, which took over the regulation from the former MMS, instituted a series of reforms, including a revised policy on decommissioned offshore structures. Idle Iron Policy An important element of the wide-ranging revision of safety and environmental rules includes a new BSEE approach to address offshore structures, known as the “Idle Iron” policy.23 The purpose of the Idle Iron policy is to assure the public that, unlike in the past, the Federal government will more assertively regulate wells and platforms that are “no longer useful for operations.” In the news release explaining the new approach, BSEE provided the following explanation: As part of our sustained effort to improve the safety of energy production on the Outer Continental Shelf and strengthen environmental protections, we are notifying offshore operators of their legal responsibility to decommission and dismantle their facilities when production is completed. . . . As infrastructure continues to age, the risk of damage increases. That risk increases substantially during storm season. This initiative is the product of careful thought and analysis and requires that these wells, platforms and pipelines are plugged and dismantled correctly and in a timely manner to substantially reduce such hazards.24 The new notice clarifies that BSEE will now order wells that are not useful (defined as those that have not produced for five years) as of October 2010 to be plugged by October 2013. Any well that becomes idle subsequent to October 2010 must be plugged within 3 years. Importantly, the notice also orders any platform considered “idle” as of October 2010 to be decommissioned by

22  B SEE Press Release, “BSEE Revises ‘Rigs to Reefs’ Policy,” June 26, 2013, available at http:// www.bsee.gov/BSEE-Newsroom/Press-Releases/2013/Press06262013. 23  “Decommissioning Guidance for Wells and Platforms,” BSEE Published Notice to Lessee (NTL) 2010-G05 (Oct. 2010). 24   Department of the Interior Press Release, “Interior Department Issues ‘Idle Iron’ Guidance,” Sept. 15, 2010, available at http://www.doi.gov/news/pressreleases/InteriorDepartment-Issues-Idle-Iron-Guidance.cfm. See also BSEE, “Decommissioning and Rigs to Reefs in the Gulf of Mexico FAQ,” last accessed Jan. 20, 2014, http://www.bsee.gov/ Exploration-and-Production/Decomissioning/FAQ.

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October 2015. Any platform that becomes idle after October 2010 must be decommissioned within 5 years.25 The Idle Iron policy has been a windfall for businesses that specialize in decommissioning and removal of seabed debris. More than 813 platforms and other structures will have to be decommissioned over the next five years; this work represents $3 billion in revenue to the niche industry.26 Because the Gulf of Mexico is one of the older production areas, operators in other parts of the world are looking at what happens there as a model for how to proceed when decommissioning is mandated elsewhere.27 Although the new Idle Iron policy brings the United States into better compliance with international legal standards, such as those described previously,28 and its own domestic law, the new policy of accelerating decommissioning of offshore structures has created a complex set of legal, scientific, and policy issues that has divided stakeholders and triggered a serious political debate. At the heart of the debate is how the Idle Iron policy will affect existing offshore platforms, especially those in close proximity to population centers, which are important for recreational fishing and diving interests, and that serve as de facto artificial reefs. The issue also has implications, especially in shallower waters, for the growing use of obsolete rigs in state and federal artificial-reef programs. Rigs-to-Reefs Programs in the Gulf of Mexico and the Effect of Idle Iron Policy Using obsolete offshore structures for artificial reefs, a practice known as “rigs-to-reefs,” has been occurring in the Gulf of Mexico for over two decades. Recently, the State of California has enacted legislation authorizing the practice in that state’s waters.29 All five states that border the Gulf of Mexico have active artificial reef programs. Due to the proximity of offshore platforms,

25  B SEE, “Decommissioning FAQ,” supra note 24. 26  Aaron Levitt, “Make a Big Play in ‘Idle Iron’: These Companies are Set to Profit from New Regulation,” InvestorPlace, May 13, 2013, available at http://investorplace.com/2013/03/ make-a-big-play-in-idle-iron. 27  “Feds Create Boom Times for Decommissioning Companies,” World Oil, Apr. 2012, available at http://www.worldoil.com/April-2012-Feds-create-boom-times-for-decommissioningcompanies.html. 28  The international legal standards are described supra in the text surrounding notes 5–15; U.S. compliance is described supra in the text surrounding notes 16–22. 29  California Marine Resources Act, Cal. Fish & Game Code § 6601 (West 2010).

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­ owever, only Louisiana and Texas rely heavily on oil and gas structures for h reef material.30 When Congress passed the National Fishing Enhancement Act of 1984 (NFEA), it mandated that the Federal government work with interested states and other support groups to develop a long-term plan for siting, constructing, permitting, installing, monitoring, managing and maintaining artificial reefs located in State waters, as well as on the adjacent Outer Continental Shelf in federal waters.31 State agencies are generally responsible for structures in state waters, although the Federal government retains jurisdiction for purposes of navigational safety and environmental protection, The Department of the Interior, through its agencies BOEM and BSEE, is responsible for structures in Federal waters. BSEE requires lessees to “remove a platform or other facility associated with a terminated lease, right-of-use and easement, or pipeline row within one year after termination date.”32 The agency will waive these requirements for the purpose of converting a subsea structure to an artificial reef, provided that: (1) the structure does not jeopardize future mineral and energy development opportunities; (2) the artificial reef complies with the U.S. Army Corps of Engineers’ permit requirements, BSEE Engineering Standards, Coast Guard navigational safety requirements, and the National Artificial Reef Plan; and (3) an adjoining state formally accepts liability for the structure. The broad intent of the NFEA was to consolidate disparate local and state laws and to develop a National Artificial Reef Plan to serve as a guide for state artificial reef programs. It also created a framework to encourage individual states to take the lead in creating their own rigs-to-reefs plans and to establish legal and institutional mechanisms to transfer ownership and liability of platforms from federal oil and gas lessees to the states. The states of Louisiana and Texas enacted rigs-to-reef statutes in 1986 and 1989 respectively. Since the enactment of these laws, Louisiana has converted to reefs and accepted lia­ bility for 302 rigs, and Texas 103.33 30  Kaiser, supra note 1. 31   See National Fishing Enhancement Act of 1984, supra note 3. Texas and the Gulf-facing coast of Florida have been recognized as having state water claims extending to 3 marine leagues or 9 nautical miles based on historical claims. The other states have state water claims extending to 3 nautical miles. Activities in areas beyond state waters are located on the Federal Continental Shelf and are governed by federal rather than state law. See Donna R. Christie and Richard G. Hildreth, Coastal and Ocean Management Law (West Group, 2d ed. 1999), 124–26. 32  O CSLA regulations, supra note 19. 33  B SEE, “Decommissioning FAQ,” supra note 24.

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There are three methods to convert decommissioned rigs into artificial reefs (see Figure 11.2). First a partial platform can be left in place, and for navigational safety purposes, cutting it at levels of no less than 85 feet below the waterline. Second, a platform can be toppled in place. Third, a platform can be towed and placed in a designated reefing area. There are 11 designated reefing areas in the Gulf of Mexico.34 Reefed rigs can be as close as a few miles from shore, or as far as 100 miles offshore, and they generally rest in 50 to over 300 feet of water. A major incentive to donate and accept platforms as artificial reefs comes from the fact that reefing can often lower the cost of decommissioning below the cost of removing the platform and bringing it ashore for disposal.35 The standard practice is for the donor to provide payment to the state of at least 50 percent of the realized savings to the donor. This framework allows the state to use that funding for maintenance, liability exposure, and marine conservation purposes, while still providing the donor with savings in comparison to disposing of the rig ashore. Once an operator willing to donate a rig has been identified, the state rigsto-reefs program leads the effort to acquire the requisite Federal permits and authorizations from the U.S. Army Corps of Engineers, U.S. Coast Guard, and BSEE. The state also negotiates a material donation agreement with the operator that specifies all requirements associated with the donation, including the detailed procedure leading to the shift of liability from the operator to the state rigs-to-reefs program. The process of acquiring Federal permits and negotiating the material donation agreement is lengthy and complex, and can take up to 2–3 years to complete.36 The use of structures as artificial reefs may create significant benefits by providing habitat for fish and other marine life. For example, researchers report fish densities to be 20–50 times higher at artificial reefs created by oil and gas platforms than in nearby open water areas.37 Despite the general understanding that reefed platforms create rich marine habitats, no definitive answer has yet to be provided for the essential ecological question of whether artificial reefs facilitate actual increases in fish biomass or merely cause fish

34  Ibid. 35  See Kaiser, supra note 1 (provides an excellent discussion of the factors that impact the cost of converting a rig to a reef). 36  A detailed description of Texas’ Rigs-to-Reefs Program may be found in the Texas Artificial Reef Plan. Texas Parks and Wildlife Department, “Texas Artificial Reef Fishery Management Plan,” Fishery Management Plan Series No. 3, PWD-PL-3400–332–12/90, available at http:// www.tpwd.state.tx.us/publications/pwdpubs/media/pwd_pl_v3400_0332.pdf. 37  Dauterive, supra note 4, 2.

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Figure 11.2 The three methods for converting decommissioned rigs into artificial reefs.38

to aggregate near the reef, with no net increase in reproduction or survival.39 Researchers are actively pursuing studies to address the production versus attraction hypotheses.40 Nevertheless, it is recognized that the use of rigs-toreefs in deeper waters, and in situations where reef degradation is extreme, likely will be useful in rejuvenating reef communities to some degree.41 Stakeholders carry strong attitudes both in favor and against rigs-to-reefs programs. What was once a black-and-white tension between operators who wanted to leave the platforms in place, and environmentalists who wanted them taken out, has morphed into multiple shades of grey.42 Four constituent groups tend to support rigs-to-reefs. Recreational anglers and scuba divers see 38  Dauterive, supra note 4, figs. 4–6. 39  Kara K. McQueen-Borden, “Will the Rigs-to-Reefs Experiment be Based on the ‘Best Scientific Information Available’?,” Tulane Law Review 87(5–6) (2013), 1281 (good discussion of the existing knowledge gap concerning the effectiveness of rigs as artificial reefs). 40  Ibid., 1286–90 (summarizes many of these studies). 41  Peter I. Macreadie, Ashley M. Fowler, and David J. Booth, “Rigs to Reefs: Will the Deep Sea Benefit from Artificial Habitat?,” Frontiers in Ecology and Environment 9(8) (2011), 455–461. 42  See “Decommissioning Thought-Leaders,” supra note 18.

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the reefs as enhancing fishing and diving opportunities. Some environmental advocates believe that removing platforms is environmentally disruptive and destroys important hard-surface and benthic habitat. They also welcome additional funds being generated for marine conservation efforts as a result of ­savings from partial versus complete removal. Finally, offshore industry interests support the fact that rigs-to-reefs conversions are sometimes substantially less expensive than complete removal.43 Opposition to rigs-to-reefs primarily comes from two groups. First, there is a different set of environmental advocates who are skeptical of the environmental benefits of partial removal, and concerned that contamination and liability issues will remain after the rig is converted to a reef. They are also frustrated that platform operators will not be required to absorb the complete cost of full removal and seabed clean up that they originally agreed to fund. Second, commercial fishermen are generally opposed to the effort because rigs-to-reefs structures obstruct some areas where they seek to fish, and also pose concerns about crew safety and the loss of gear due to sea bottom snags.44 Idle Iron policies have exacerbated competition and conflict between many of these stakeholders over the proper handling of non-producing oil and gas rigs in the Gulf of Mexico. Because it generally takes at least several years to complete the process of donating a decommissioned rig to a state rigs-toreefs program, many potential donations have been removed and taken to shore rather than left in place as potential reef sites. Accelerating removals of existing structures as a result of the Idle Iron policy has triggered a politically active coalition of coastal communities, commercial and recreational fishing and diving interests, environmental organizations, and some oil companies, to oppose Idle Iron policies.45 In response to this intense political pressure, a number of Gulf Coast legislators have joined together to ask for a temporary moratorium on all decommissioning actions, and have introduced legislation to make it easier to leave offshore structures in place to serve as artificial reefs.46 It is unclear whether 43  Sean B. Hecht, “California’s New Rigs-to-Reefs Law,” UCLA Institute of the Environment and Sustainability, Southern California Environmental Report Card: Fall 2010, available at http://www.environment.ucla.edu/reportcard/article.asp?parentid=9389. 44  Ibid. 45  See Coastal Conservation Association, “Articles About Rigs to Reefs,” last accessed Jan. 20, 2014, http://www.joincca.org/issues/5 (collection of newspaper articles and video reports in opposition to Idle Iron policies). 46  S.96, 113 Cong., 1st Sess. (Jan. 23, 2013). See also “Congressmen Want Moratorium on Decommissioning Gulf Infrastructure,” Natural Gas Week, Mar. 4, 2013, available at http:// www.energyintel.com/Pages/ArticleSummary/798667/Congressmen-Want-Moratoriumon-Decommissioning-Gulf-Infrastructure.

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this proposed legislation will be enacted. However, BSEE was sufficiently concerned about the complaints from these influential constituent groups that it held a series of rigs-to-reefs fact-finding workshops during the spring and early summer of 2013. In response to the comments received at these workshops, BSEE signaled its intention to provide a more flexible and transparent approach for evaluating platform-removal applications. The new approach is outlined in an Interim Policy Document (IPD) published on June 26, 2013.47 BSEE Interim Policy Document According to the IPD, “BSEE supports and encourages the reuse of obsolete oil and gas structures as artificial reefs. . . .”48 The document provides modifications of previous procedures to make it easier for structures to be donated to an approved state artificial reef program. For example, a departure from the strict time requirements for removal is granted “to allow for the processing and approval of BSEE permits and/or other State/Federal program requirements needed to reef the structure.”49 It also provides more latitude in placement of reef sites, including reducing the previously required five-mile buffer zone between designated reefing areas and certain restrictions to reefing in place.50 Finally, it places some restrictions on the use of explosives by prohibiting their use if “they will cause harm to established artificial reef sites and/or natural biological/topographic features, such as Flower Garden Banks and Pinnacles.” In other circumstances, a case-by-case approval of explosive-severance tools is required.51 In response to feedback from affected stakeholders, BSEE is also increasing staff to more effectively deal with the increased pace of removals and reefing proposals from states as well as developing a web-based geographical information mapping tool that identifies the locations and status of every platform in the Gulf of Mexico.52 This marine spatial mapping tool is especially important in interacting with stakeholders so that they are aware of which structures are subject to the Idle Iron removal requirements, and which may be best candidates for reefing.53 In addition to layers of geographic information that include 47  B SEE, Interim Policy Document, “ ‘Rigs-to-Reefs’ Policy,” IPD No: 2013–07, available at http://www.bsee.gov/uploadedFiles/BSEE/BSEE_Newsroom/Press_Releases/2013/Rigs% 20to%20Reefs%20IPD%20-%20June%202013.pdf. 48  Ibid, ¶ 5A. 49  Ibid, ¶ 5B. 50  Ibid, ¶ 5D(3)(a)(b). Personal communication with BSEE official D. Leedy, Sept. 4, 2013. 51  B SEE, Interim Policy, supra note 47, ¶ 5D(5)(a)(b). 52  See Coastal Conservation Association, “Policy Shift Favors Artificial Reefing,” June 27, 2013, available at http://www.joincca.org/articles/618. 53  A beta version of BSEE’s Rigs-to-Reefs Artificial Reef Planning Tool was made available for a period of time during the last few months of 2013 but has since been taken down.

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locations and current status of platforms, artificial reefs, critical habitat, shipping fairways, pipelines, oil and natural gas wells, and bathymetry, the site also provides stakeholders with an opportunity to send personal comments and relevant information regarding specific structures to BSEE officials to assist them in properly managing the removal and reefing process.54 Conclusion By adopting the Idle Iron policy in late 2010 and accelerating the removal of offshore oil and gas structures that have reached the end of their useful lives, the United States has enhanced compliance with its international and domestic legal obligations, as well as reduced some of the public’s concerns regarding future Macondo-type oil spills. The policy failed, however, to properly implement its well-intentioned process. Many stakeholders were not adequately informed about the likely consequences of accelerated removals or adequately involved in the program’s creation. Sufficient thought was not given to the political reaction from the expanded use of explosives and their damaging effect on red snapper populations. Recent efforts by BSEE in its Interim Policy Document to provide additional flexibility to allow states to negotiate potential rigs-to-reefs arrangements will help to ameliorate the legislative efforts to slow down or stop implementation of the Idle Iron policy. Moreover, creation of an effective marine spatial mapping tool to better inform stakeholders and allow them to have a greater role in future platform removal decisions will greatly reduce the rancor and uncertainty that currently exists, especially throughout Gulf of Mexico coastal communities. Similar coastal and marine spatial planning efforts should be encouraged and integrated into all major ocean-related policy changes or management plans.

BSEE has reported that it is having problems keeping the data in the web-based mapping tool up to date and is working on an interagency agreement to resolve this problem. As of October 7, 2014, the site was not available to the public. BSEE has received funding to move forward on the mapping tool and will soon put out a contract to build the final site and to automate updates of maps. Personal email communication with David Smith of BSEE on October 6, 2014. 54  Ibid.

Part 5 Regional Issues: The Arctic and the South China Sea

∵

Chapter 12

Dividing and Managing Increasingly International Waters: Delimiting the Bering Sea, Strait and Beyond Clive Schofield Introduction The Bering Sea and the Strait of the same name provide the point of entry and egress between the Pacific and Arctic Oceans.1 As a consequence of significant and sustained alterations in the Arctic environment these maritime spaces are, in turn, experiencing major changes, exemplified in particular by dramatic reductions in both the extent and thickness of sea ice cover (Figure 12.1). As the environment warms, the retreat of sea ice is driving an expansion of political and economic activity, including increasing navigation in Arctic sea lanes. Of special note in this regard is that all vessel shipping that traverses Arctic routes between the Atlantic and Pacific Oceans must pass through the Bering Sea and Strait. This chapter focuses on environmental changes and increasing navigation in the Arctic, and particularly, maritime jurisdiction and boundary delimitation in the Bering Sea, Bering Strait and northward into the Arctic Ocean. Ostensibly, * Professor and Director of Research, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong (UOW) and Challenge Leader, Sustaining Coastal and Marine Zones, UOW Global Challenges Program. Address: ANCORS, University of Wollongong, Wollongong, NSW 2522, Australia. E-mail: [email protected]. Professor Schofield is the recipient of an Australian Research Council Future Fellowship (FT100100990). 1  The Bering Sea and Strait are named for Captain Vitus Jonassen Bering, a Danish surveyor and explorer in the service of the Russian Navy who mounted two expeditions (the First and Second Kamchatka Expeditions principally of 1728 and 1741) to the extreme northeast of the Asian continent and northwest of the American continent. Captain Bering established that Siberia and Alaska were not one physically connected land mass. See, for example, United Kingdom Hydrographic Office (UKHO), Bering Sea and Strait Pilot (Admiralty Sailing Directions, 7th ed. 2009), 19 and 22. See also Arctic Council, Arctic Marine Shipping Assessment 2009 Report (April 2009), 42, available at http://www.pame.is/images/03_ Projects/AMSA/AMSA_2009_report/AMSA_2009_Report_2nd_print.pdf (hereinafter “AMSA Report 2009”).

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maritime delimitation issues were addressed through an agreement between the United States and the United Soviet Socialist States (U.S.S.R.) concluded in 1990. Even though the terms of the agreement are observed by both the United States and Russia, the Duma has not ratified the treaty. Discussion of delimitation issues is prefaced by an overview of the maritime geographical setting, physical changes in the Arctic marine environment, and recent developments with respect to shipping activity via the Arctic Ocean and Bering Sea. The United States-Soviet maritime dispute in the region, which predated the 1990 agreement is also explored, with particular reference to its technical aspects relating to types of straight lines to be defined. The 1990 agreement that addressed these issues is reviewed, with key challenges faced and overcome in its negotiation being noted. Innovative aspects are highlighted and subsequent developments and analogous practice outlined. In light of the increasing intensity of maritime activities evident in the area, including increasing maritime traffic in Arctic sea routes and through the Bering Straits, it is concluded that the Russia-U.S. maritime boundary and bilateral cooperation, will become more important.

Geographical Context

The northern limit of the Bering Sea has been defined as the Arctic Circle between Siberia (Russia) and Alaska (United States), which is coincident with the southern limit of the Chukchi Sea to the north.2 The Bering Sea includes all the narrow waters between the coasts of Kamchatka (Russia) to the west and Alaska (United States) to the east, with its southern limit being along a line running from Kabuch Point on the Alaskan Peninsula “through the Aleutian Islands to the South extremes of the Komandorski Islands,” and the Kamchatka Peninsula.3 To the north of the Bering Straits lies the Chukchi Sea, which forms part of the Arctic Ocean (Figures 12.2 and 12.3).4 The Bering Strait is 45 nautical miles (nm) wide between Mys Dezhneva at the eastern extremity of Siberia and Cape Prince of Wales at the corresponding westernmost point of Alaska.5 The Bering Strait therefore forms the gateway 2   International Hydrographic Organization (IHO), Limits of Oceans and Seas, Special Publication No. 23 (Monte Carlo: IHO, 3d ed. 1953), 9. 3  Ibid., 33. 4  Ibid., 9 and 11. 5  See UKHO, Bering Sea and Strait Pilot, 314. It is acknowledged that “M” is the technically correct abbreviation for nautical miles. However, “nm” is frequently used in the literature and is employed as the abbreviation for nautical miles in this volume.

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between the Arctic Ocean and Pacific Ocean, and more specifically between the Chukchi Sea and Bering Sea.6 As well as being rather narrow, the Bering Strait is also relatively shallow, with water depths of 30–50 m.7 What is often termed the “Bering Strait,” however should be more properly referred to as the Bering Straits, as there are three separate straits. This geography results from the existence of two islands, Russia’s Big Diomede Island [Ostrov Ratmanova] and the U.S. island of Little Diomede, located in the central part of the maritime space between the eastern tip of Siberia and the western part of Alaska. Thus, a passage exists between Siberia and Big Diomede Island that lies solely under Russian jurisdiction, and another passage runs between Alaska and Little Diomede Island that is under U.S. jurisdiction (Figure 12.4). The islands themselves have “nearly vertical sides,” with no beaches, so making landing is particularly difficult.8 The Diomede Islands are two nautical miles apart, so a third narrow strait lies between them, jurisdiction over which is shared by Russia and the United States along the maritime boundary delimited in 1990.9 The Bering Sea and Straits region has traditionally been, and for the majority of the year remains, characterized by extreme environmental conditions. Sea ice cover generally grows from a low-point typically experienced in late September, such that in winter and into spring sea ice covers the majority of the Bering Sea, with the Bering Strait being covered in sea ice from mid-December through mid-June.10 This ice is, however, seasonal, melting away in the Arctic summer months.11 Nonetheless, the Bering Sea, along with the Chukchi and Beaufort Seas, are “extremely dynamic,” and feature “an ever-changing ice environment” caused by the influence of winds and currents.12 Indeed, it has been noted that “[i]ce has been observed to move through the region at speeds as high as 27 nautical miles per day.”13 In addition to the long cold winters and brief temperate summers, the area is prone to violent storms during the winter 6   Ibid. 7   AMSA Report 2009, 18. 8   UKHO, Bering Sea and Strait Pilot, 315. 9   Ibid. The fairway of the channel between the islands is described as being one nautical mile wide and it is noted that although the channel is reported to be clear of dangers it “should not be used by large vessels.” Ibid. 10  See, for example, the figures depicting average limits of sea ice by month in the UKHO’s Bering Sea and Strait Pilot, 39–50. 11  National Snow and Ice Data Center (NSIDC), “In the Arctic, winter’s might doesn’t have much bite,” 3 March 2014, available at https://nsidc.org/arcticseaicenews/2014/03/ in-the-arcitc-winters-might-doesnt-have-much-bite. 12  AMSA Report 2009, 48. 13  Ibid., 106.

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and sea fog in summer.14 Additional weather-related hazards include “sudden violent squalls near steep-to coasts,” and particularly in the north, “blizzards, rapid ice-accumulation and extremely low wind-chill factors due to a combination of strong winds and very low temperatures.”15 Despite its harsh environment, the large marine ecosystem of the Bering Sea is “extraordinarily productive.”16 Consequently, the Bering Sea supports a major fishery, especially for king crab, opilio crab, Pacific cod, salmon and Pollock, as popularized by the Discovery Channel television series Deadliest Catch.17 In this context it is worth noting that fisheries from Alaska, with the Bering Sea providing a significant component, contribute one-half of the marine harvest of the United States.18 The Bering Sea also supports large bird and mammal populations.19 Furthermore, these marine living resources are especially important to indigenous populations in the region “for nutritional reliance, cultural customs and economic dependence.”20

Impacts of a Changing Arctic

Like the rest of the Arctic region, the Bering Sea and Straits have experienced enormous environmental change in recent time. In particular, the Arctic is now undergoing warming at a rate far greater than the global average.21 This trend 14  UKHO, Bering Sea and Strait Pilot, 52. 15  Ibid. 16  Vera Alexander, “Why is the Bering Sea Important?” Bering Climate, National Oceanic and Atmospheric Administration (NOAA), available at http://www.beringclimate.noaa.gov/ essays_alexander.html. See also AMSA Report 2009, 143. 17  See Discovery, “Deadliest Catch,” http://www.discovery.com/tv-shows/deadliest-catch. 18  NOAA, “Current State of the Bering Sea,” Bering Climate, available at http://www.bering climate.noaa.gov/bering_status_overview.html. 19  Alexander, “Why is the Bering Sea Important?” 20  AMSA Report 2009, 107. 21  This conclusion is reached by major studies, such as the Arctic Climate Impact Assessment (ACIA) of 2004 and the Arctic Monitoring and Assessment Program (AMAP) update of 2009. See H. Loeng, K. Brander, E. Carmack, S. Denisenko, K. Drinkwater, B. Hansen, K. Kovacs, P. Livingston, F. McLaughlin and E. Sakshaug, “Marine Systems,” in Arctic Climate Impact Assessment (ACIA), Arctic Climate Impact Assessment: Impacts of a Warming Arctic (Cambridge University Press, 2004), 458–531; and AMAP 2009, Update on Selected Climate Issues of Concern: Observations, Short-lived Climate Forcers, Arctic Carbon Cycle, Predictive Capability, (Arctic Monitoring and Assessment Program, 2009), 7, available at http://www.amap.no/documents/doc/amap-2009-updateon-selected-climate-issues-of-concern/752.

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has been most strikingly illustrated by dramatic reductions in sea ice cover and thickness. In the summer of 2012, for example, the sea ice extent in the Arctic Ocean fell to the lowest level on recent record: 3.41 million square kilometers (m sq. km).22 This figure is almost 50% lower than the 1979–2000 average of 6.74 m sq. km.23 To put this staggering loss in summer sea ice cover in perspective, the area lost, 3.29 m sq. km as compared to the long-term average, equates to roughly one-third of the land area of the United States, or five times the area of France. Since the previous record low recorded in 2007,24 recorded sea ice minima have been broadly consistent with one another, and together represent the lowest Arctic sea ice extents on record (Figure 12.1).25 In this context, a key factor has been later initiation of the Arctic freeze-up, as well as an earlier start and longer duration to the Arctic melt season—now almost one month longer than it was in the 1980s.26 This later freezing and earlier melting inevitably has significant impacts on the extent and dynamics of sea ice. Additionally, Arctic sea ice thickness is also in severe decline, something that significantly compounds the issue of decreasing summer sea ice extent. Based on measurements from submarines, Arctic sea ice thickness has been reduced by about 40% in recent decades.27 This finding is supported by

22  See National Snow and Ice Data Center (NSIDC), “Arctic Sea Ice Extent Settles at Record Seasonal Minimum,” NSIDC Press Release, 19 September 2012, http://nsidc.org/ arcticseaicenews/2012/09/arctic-sea-ice-extent-settles-at-record-seasonal-minimum. 23  Ibid. 24  NSIDC reported the the average five-day mean sea ice extent in September 2007 of 4.13 million square kilometres. This figure relates to the average five-day mean sea ice extent. See NSIDC, “Arctic Sea Ice Shatters All Previous Record Lows,” NSIDC Media Press Release, 1 October 2007, available at http://nsidc.org/news/press/2007_seaiceminimum/20071001_ pressrelease.html. It should be noted that the estimated uncertainty for extent in these figures is of the order of plus or minus 50,000 km2. 25  Ibid.; see also D. Perovich, W. Meier, J. Maslanik and J. Richter-Menge, “Sea Ice,” in Arctic Report Card: Update for 2011, National Oceanic and Atmospheric Administration (NOAA), available at http://www.arctic.noaa.gov/reportcard/sea_ice.html. 26  Thorstan Markus, Julienne Stroeve and Jeffery Miller, “Recent Changes in Arctic Sea Ice Melt Onset, Freeze Up, and Melt Season Length,” Journal of Geophysical Research 114 (2009), C12024. 27  One notable study suggested this figure for the reduction in mean ice thickness within the central Arctic Ocean between the periods of 1958–76 and 1993–97. See D.A. Rothrock, Y. Yu, G.A. Maykut, “Thinning of the Arctic Sea Ice Cover,” Geophysical Research Letters 26:23 (1999), 3469–3472.

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Minimum Arctic Sea Ice Extent 2008–2014.28

more recent satellite observations,29 and some observers suggest overall Arctic sea ice volume has decreased by 75% since the 1980s.30 Of particular concern has been the replacement of older, thicker, multiyear ice with seasonal ice that is far more likely to melt during warmer seasonal episodes. Overall, Arctic sea ice cover is substantially thinner and younger than in the past. For example, in March 2011 it was estimated that first and second year ice comprised 80% of the ice cover in the Arctic basin, compared to 55% on average over the period 1980–2000.31 The critical consequence of this trend

28  Adapted from Figure 2 in NSIDC, “2014 Melt Season in Review” 7 October 2014, available at http://nsidc.org/arcticseaicenews/2014/10/2014-melt-season-in-review/. 29  See, for example, Katherine Giles, Seymour Laxon, and Andy Ridout, “Circumpolar Thinning of Arctic Sea Ice Following the 2007 Record Ice Extent Minimum,” Geophysical Research Letters 35 (2008), L22502. 30  James E. Overland, Muyin Wang, John E. Walsh and Julienne C. Stroeve, “Future Arctic Climate Changes: Adaption and Mitigation Time Scales,” Earth’s Future 2 (2013), 1–7, at 1. 31  NSIDC, “Summer 2011: Arctic Sea Ice Near Record Lows.”

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toward younger and thinner ice cover is that Arctic sea ice is increasingly vulnerable to rapid melting in the summer months. In the Bering Sea specifically, sea ice cover is seasonal. The Bering Sea also features a large marginal ice zone dominated by new, thin ice.32 This pattern tends to make Bering Sea sea ice particularly sensitive to temperature changes, for instance driven by changes in the direction of prevailing winds.33 This phenomenon explains the variable sea ice cover in the Bering Sea in recent years, where colder winds from the north have led to higher then average sea ice accumulation, whereas warmer, southerly winds, such as those generally experienced in the winter of 2013–2014, have tended to impede ice growth and pushed sea ice farther north, thereby reducing sea ice extent.34 Considering the Arctic Ocean as a whole, climate variability may result in periods of stabilization and possibly expansion in Arctic sea ice cover in “the next few decades.”35 The inherent uncertainties associated with predicting climate variability, however, are acknowledged and the pause may be only temporary.36 Overall, a sustained, severe and ongoing downward trend in summer sea ice extent, as well as thickness, age and volume, is evident. This is likely to continue, with a progressive decline in Arctic sea ice predicted.37 The observed decrease in sea ice extent has exceeded that suggested by modelling, however, making it more likely that the Arctic is experiencing a step change or tipping point.38

Arctic Navigational Opportunities

The sustained trend towards receding and thinning Arctic sea ice cover witnessed in recent years is encouraging greater socio-economic activity in 32  NSIDC, “In the Arctic, Winter’s Might Doesn’t Have Much Bite.” 33  Ibid. 34  Ibid. 35  See “Arctic Ice Melt Could Pause in Coming Decades,” National Science Foundation, Press Release, 11 August 2011, available at http://www.nsf.gov/news/news_summ.jsp?cntn_ id=121359&WT.mc_id=USNSF_51&WT.mc_ev=click?. 36  Ibid. 37  James E. Overland and Muyin Wang, “Future Regional Arctic Ice Declines,” Geophysical Research Letters 34 (2007), L17705. 38  Timothy M. Lenton et al., “Tipping Elements in the Earth’s Climate System,” PNAS 105:6 (2008), 1786–1793, doi:10.1073/pnas.0705414105. See also R.W. Lindsay and J. Zhang, “The Thinning of Arctic Sea Ice, 1988–2003: Have We Passed a Tipping Point?” Journal of Climate 18 (2005), 4879–4894.

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the region. The significant reductions in Arctic sea ice extent and thickness means that Arctic waters are more accessible to shipping and over longer periods of time as the Arctic sailing season or window widens.39 This negative trend in sea ice cover in the Arctic Ocean has led to forecasts of a prolonged sea ice-free summer period in coming decades, with great implications for shipping patterns.40 It is not difficult to understand the abiding allure of Arctic shipping routes. If they prove to be viable as alternatives to traditional navigational routes, they have the potential to transform global commercial navigation and trade patterns. The principle attraction of Arctic routes is the substantial distance saved compared to inter-oceanic passages through the Suez Canal and the Panama Canal. In particular, the Northwest Passage offers a staggering 9,000 km (4,860 nm) distance saved over the traditional route between Europe and Asia through the Panama Canal, and a 17,000 km (9,180 nm) saving over the Cape of Good Hope route.41 Similarly, use of the Northern Sea Route rather than the traditional route via the Suez Canal cuts the distance of a voyage between Hamburg, Germany to Yokohama, Japan, by around 40%.42 The calculation of these distance savings is complicated by the fact that both the Northwest Passage and Northern Sea Route do not consist of a single passage, but rather a series of routes. There are, for example, multiple different straits among the islands of the Canadian Arctic island archipelago along the Northwest Passage, as well as routes at different latitudes for the Northern Sea Route. The choice of precise routing often depends on ice conditions at the time of passage. Furthermore, for the Northern Sea Route, the longer, higher latitude and therefore considerably more ice-prone route is actually preferable over the lower latitude. Although the lower latitude route is nearer shore, it involves traversing a series of shallow straits, particularly in the Laptev and 39  Claes L. Ragner, Den norra sjövägen, Barents – ett gränsland i Norden [The Northern Sea Route, The Barents—A Nordic Borderland], ed. Torsten Hallberg, trans. Fridtjof Nansen Inst. (2008), http://www.fni.no/publ/marine.html. See also Clive Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” International Zeitschrift 8:1 (January 2012), 9–16. 40  ACIA (Arctic Climate Impact Assessment), Arctic Climate Impact Assessment: Impacts of a Warming Arctic (Cambridge University Press: Cambridge, 2004), 19; see also Overland et al., “Future Arctic Climate Changes: Adaption and Mitigation Time Scales,” 1. 41  Katherine J. Wilson, et al., “Shipping in the Canadian Arctic: Other Possible Climate Change Scenarios,” Geoscience & Remote Sensing Symposium 3 (2004), 1853. 42  John Vidal, “Arctic City Hopes to Cash in as Melting Ice Opens New Sea Route to China,” The Observer, 1 February 2014, available at http://www.theguardian.com/world/2014/ feb/01/arctic-city-new-route-china.

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Kara Seas, which impose limits on draft, beam and therefore vessel displacement. Passage through straits lying between the mainland and islands offshore the Siberian coast, for example, permit a maximum draft for ships of only 12.5m.43 This restriction necessarily impacts both the size of ships that can utilize the route, as well as the speed of transit. In 2011, however, shipping was able to use a route to the north of Novosiberian Island, avoiding the shallow Sannikov Strait.44 The substantially shorter distances of Arctic routes could potentially translate into savings in the time voyages, with a corresponding reduction in bunkering (fuel) usage and costs.45 A related benefit of using Arctic sea lanes, and one emphasized by the shipping companies starting to take up the Arctic navigational option is that the shorter distances travelled also reduces the emissions of harmful gases such as SO2 and CO2 from ship diesel engines.46 Arctic sea routes also may have maritime security advantages, as they are, presently at least, free of attacks by pirates.47

Rising Arctic Navigation

As a consequence of the environmental changes occurring in the Arctic Ocean, especially with respect to sea ice extent and thickness, navigation via the Northwest Passage and, particularly, the Northern Sea Route has increased. 43  Ragner, “The Northern Sea Route.” See also Clive Schofield, “The Tip of a Fast-Disappearing Iceberg? Implications of the opening up of the Northern Sea Route,” Commentary, Australian Journal of Marine and Ocean Affairs 1:4 (2009), 132–134. 44  “New Pathway along the Northern Sea Route,” Barents Observer, 27 September 2011, available at http://www.barentsobserver.com/index.php?id=4964702&xxforceredir=1& noredir=1. 45  Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 12. 46   See “Successfully Mastered Northeast Passage is Followed by Planning Start for 2010,” Beluga Group, 18 September 2009, available at http://www.beluga-group.com/ en/#News-News. 47  While the surge in such attacks from 2008 peaked in 2012, the high costs associated with counter-piracy measures off the Somali coast are likely to persist. These were estimated at $5.7–6.1 billion in 2012. See International Chamber of Commerce (ICC), “Somali Pirate Clampdown Caused Drop in Global Piracy IMB Reveals,” 15 January 2014, available at http://www.icc-ccs.org/news/904–somali-pirate-clampdown-caused-drop-in-globalpiracy-imb-reveals. See also Jonathan Bellish, The Economic Cost of Maritime Piracy 2012, 1 (One Earth Future), available at http://oceansbeyondpiracy.org/publications/ economic-cost-piracy-2012.

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While much of the shipping tends to be destinational and does not involve complete transits, there has been a steady increase in shipments between the Atlantic Ocean and Pacific Ocean ports by way of the Arctic Ocean. In the past four years both the Northwest Passage, including the wider and deeper northern route via the Parry Channel, and Northern Sea Route, have been free of ice and open for navigation in the month of September.48 Moreover, the Northern Sea Route has been open every year since 2008 and the southern route through the Northwest Passage via the Amundsen Route has been viable for navigation in September every year since 2007.49 A significant step toward making the Northern Sea Route a viable passageway for commercial traffic was achieved when two heavy lift vessels of Germany’s Beluga shipping group, the Beluga Fraternity and Beluga Foresight, successfully completed the first foreign-flagged commercial transit of the Northern Sea Route by sailing from Pusan in Korea to Hamburg in Germany between July and September 2009.50 While the two vessels were relatively small (12,744 dead-weight-tons (dwt)), the passage of the first high-tonnage tanker through the Northern Sea Route occurred in 2010. The SCF Baltica departed Murmansk on 14 August 2010 and arrived in Ningbo, China on 6 September 2010, carrying a cargo of 70,000 metric tons of gas condensate. The 22-day voyage was estimated to be twice as fast as the alternative route via the Suez Canal.51 Further notable inter-oceanic transits occurred in 2010, with the first passage of a high-tonnage bulk carrier, which suggests that Arctic routes may be viable for relatively low-value cargoes. The ice-class bulk carrier MV Nordic Barents carried 41,000 mt of iron ore concentrate from Kirkenes in Norway to China, becoming the first non-Russian flagged bulk carrier to pass through the Northern Sea Route.52 Moreover, in 2011 multiple commercial transits occurred 48  According to satellite measurements which, due to resolution limitations, may mean that up to 15% of the observed “open” water may be covered with ice. See Perovich et al., “Sea Ice.” 49  Ibid. 50  See “Successfully Mastered Northeast Passage is followed by Planning Start for 2010.” See also Clive Schofield and Tavis Potts, “Across the Top of the World? Emerging Arctic Navigational Opportunities and Arctic Governance,” Carbon and Climate Law Review 3:4 (2009), 472–482; and Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 13. 51  Maritime Information Centre, “SCF Baltica completes Her Voyage from Murmansk to Ningbo (China),” 9 September 2010, available at http://www.micportal.com/index .php?option=com_content&view=article&id=4337:scf-baltica-completes-her-voyagefrom-murmansk-to-ningbo-china&catid=21:world-ports&Itemid=32. 52  See Nordic Bulk Carriers, “NSR Project,” available at http://www.nordicbulkcarriers .com/nsr-project. See also “MV Nordic Barents Makes Historic Voyage,” Barents Observer,

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along the Northern Sea Route, including the first passage of a Panamax-class tanker, the 74,000 dwt STI Heritage and the first Suezmax-class supertanker, the 162,000 dwt Vladimir Tikhonov. Both tankers set speed records for passage from Novaya Zemlya to the Bering Strait, with the STI Heritage’s eight-day voyage beaten by half one-half day by the Vladimir Tikhonov.53 Indeed, the push towards lengthening the Arctic sailing season is exemplified by the first successful winter passage through the Northern Sea Route by a large tanker in December 2012. The Russian tanker Ob River, carried a cargo of 134,000 cubic meters of liquefied natural gas (LNG) from Hammerfest in northern Norway to Tobata in southwestern Japan in November 2012—a voyage that slashed 20 days sailing off the traditional route and saved about 40% in fuel consumption.54 Overall, the Northern Sea Route was used for 41 transits in 2011, 46 in 2012, and 71 in 2013 (carrying over 1.3 million mt of cargo).55 However, the number of vessels transiting the Northern Sea Route declined to 23 in 2014, carrying 274,000 tons of cargo (less than a quarter of the previous year's figure).56 In comparison, there have been 185 transits of the Northwest Passage in total to the end of the 2012 sailing season, including 21 in 2012.57 In contrast to the Northern Sea Route, the majority of the transits through the Northwest Passage in recent years have been yachts and relatively small motor vessels. For example, 19 of the 21 transits of the Northwest Passage in 2012 involved such craft.58 That year, the remaining two vessels were the ice-strengthened ship Hanseatic 10 and the 196.3 m long The World, the largest ship to have traversed

26 August 2010, available at http://barentsobserver.com/en/sections/murmansk-obl/ mv-nordic-barents-makes-historic-voyage. 53   See “Supertanker Sets Speed Record on Northern Sea Route,” Barents Observer, 1 September 2011, available at http://www.barentsobserver.com/supertanker-sets-speedrecord-on-northern-sea-route.4954241-16149.html. 54  See, for example, Ian MacLeod, “Tanker Makes First Winter Arctic Crossing,” Ottawa Citizen, 8 December 2012, available at http://www.ottawacitizen.com/technology/story .html?id=7671689. 55  Transit statistics available from the Northern Sea Route Information Office at http://www .arctic-lio.com/nsr_transits. 56  See, “Northern Sea Route traffic plummeted”, Barents Observer, 16 December 2014, available at http://barentsobserver.com/en/arctic/2014/12/northern-sea-route-traffic plummeted-16-12. 57  Robert K. Headland, “Transits of the Northwest Passage to the End of the 2012 Navigation Season,” 3 March 2013, available at http://northwestpassage2013.blogspot.com.au/2013/05/ transits-of-northwest-passage-to-end-of.html. 58  Ibid.

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the Northwest Passage.59 The first commercial passage of a large bulk carrier through the Northwest Passage in 2013, however, suggests this dynamic may change. The Panamax-class MV Nordic Orion departed Vancouver in September 2013 carrying a cargo of 73,500 tons of coking coal, traversed the Northwest Passage without incident, and delivered its cargo to Pori, Finland the following month.60 By utilizing the Northwest Passage, the vessel shortened its route by 1,000 nm, thereby saving on “time, fuel and CO2 emissions.”61 The ship also carried 15,000 tons of cargo that it would otherwise not have been able to via the Panama Canal due to draft restrictions.62 Moreover, those involved anticipated that multiple such transits will take place in future years.63 That said, 14 of the 20 transits that took place in 2013 involved relatively small vessels. Moreover, 2014 saw only half as many passages, all but three of which involved smaller craft save for two cruise vessels and the Nunavik ice-strengthened bulk cargo vessel carrying 23,0000 tonnes of nickel concentrate from Deception Bay in Canada to Bayuquan in China.64

Shipping Lanes Transformed?

These developments have led considerable excitement and commentary on the potential for Arctic navigation. The passage of multiple high-tonnage vessels including super-tankers, LNG carriers and large ore carriers, especially via the Northern Sea Route, in recent years has tended to encourage speculation that the use of Arctic sea routes offers the potential to transform global shipping routes. For example, the U.S. Coast Guard’s Arctic Strategy, despite its gen-

59  Ibid. 60  “Historic Sea Route Opens through Canadian Arctic Waters,” Nordic Bulk Carriers, NWP Project, available at . See also John McGarrity and Henning Gloystein, “Danish Panamax Coal Carrier Completes Northwest Passage,” Reuters, 27 September 2013, available at http://gcaptain.com/ nordic-orion-northwest-passage-coal. 61  Ibid. 62  Ibid. 63   Bob Weber, “More Northwest Passage travel planned by Danish skipper,” The Canadian Press, 3 January 2014, available at http://www.cbc.ca/news/canada/north/ more-northwest-passage-travel-planned-by-danish-shipper-1.2482731. 64  Robert K. Headland, “Transits of the Northwest Passage to the End of the 2014 Navigation Season,” 14 October 2014, available at http://www.americanpolar.org/wp-content/ uploads/2014/10/NWP-2014-X-5-layout-for-PDF.pdf.

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erally reserved and sober tone concerning the potential for Arctic navigation, nonetheless notes that: An oceanic trade route across the Arctic from the North Atlantic to the North Pacific would represent a transformative shift in maritime trade, akin to the opening of the Panama Canal in the early 20th century.65 The opening up of Arctic sea lanes would clearly be highly significant for the global economy given that it is estimated that of the order of 90% of global trade by volume is carried by sea.66 Considerable caution is, however, advisable as a number of factors that suggest such a radical transformation in international trade routes is not on the immediate horizon. The first and most obvious factor that mitigates against the use of the Northwest Passage for regular inter-oceanic transits is that, while the waterway (or rather, waterways) in question may be ice-free at the end of the Arctic summer, the Arctic navigational ‘window’ is still relatively narrow and uncertain and remains hazardous for shipping even during summer months.67 For example, ice and weather conditions can still be adverse in this period such that, even in a relatively icefree summer, wind-blown ice may impede and delay navigation. The temporal and spatial variability of sea ice in the Arctic, even if reduced in extent and thickness, are likely to result to delays regarding passages through Arctic sea lanes, leading to highly variable transit times and lack of reliability in terms of scheduling shipments.68 This represents a major disincentive to the use of these sea lanes particularly, for example, for container traffic which tends to rely on just-in-time delivery of cargos. In short, for much of the year ice is likely to remain a key factor and a major threat to safety of navigation for decades to come, limiting the attraction of Arctic sea lanes.

65  United States Coast Guard, Arctic Strategy (USCG), May 2013, 20, available at http://www .uscg.mil/seniorleadership/DOCS/CG_Arctic_Strategy.pdf. See also United States Navy, Arctic Roadmap, 2014–2030, February 2014, available at http://greenfleet.dodlive.mil/files/ 2014/02/USN-Arctic-Roadmap-2014.pdf. 66  According to the International Maritime Organization (IMO). See http://business.un.org/ en/entities/13. 67  See Patrick R.M. Toomey, “Global Warming: Arctic Shipping,” Meridian (Canadian Polar Commission: Ottawa, Ont., Fall/Winter 2007), at 10, available at http://www.polarcom .gc.ca/media.php?mid=3278. See also Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 14. 68  Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 14–15.

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Another significant challenge related to the use of Arctic sea lanes relates to the absence or poor quality of port facilities69 and other support infrastructure along Arctic routes including emergency response provisions in the case of an oil or other hazardous substance spill70 and in relation to search and rescue capacity.71 Limitations in terms of adequate charting of Arctic routes72 as well as availability of sufficient satellite coverage for accurate positioning and navigation also exist.73 For example, the AMSA Report of 2004 noted that the Canadian Hydrographic Service reported that only “10% of the Canadian Arctic has been surveyed to modern standards.”74 Similarly, the provision of meteorological information, especially on ice conditions and the distribution of wind-blown ice likely to impact on navigation, remains a problematic issue.75 It is worth noting that all of these problems and deficiencies largely apply to the Bering Sea and Strait also.76 Whilst the Northern Sea Route is, at first glance, far better positioned in this respect, featuring more than 50 ports along its length, it has been suggested that 40% of the ports available for ship traffic are, in fact, non-functional.77 There are also considerable additional costs associated with operating in high northern latitudes, for example the ‘ice breaker fees’ charged by the Russian authorities for passage through the Northern Sea Route. It can also be observed that such ice breaker assistance is required yet limited to a relatively small fleet and it very considerable investment would be necessary to handle any significant increase in traffic via the Northern Sea Route if these rules are not relaxed.78 Additionally, there exist not inconsiderable indirect costs resulting from delays to approval of passage as a consequence of the bureaucratic procedures associated with the use of the same route (as compared to the rela-

69  AMSA Report 2009, 175–180. 70  Ibid., 168–171. 71  Ibid., 172–173. 72  Ibid., 156–159. See also J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, (Leiden/Boston: Brill/Nijhoff, 3rd ed., 2012), 485–486. 73  Ibid., 109. See also Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 14–15. 74  Ibid., 158. 75  Ibid., 160–163. 76  Ibid., 109. 77  Valeria Criscione, “New Possibilities for the Northeast Passage,” 2 July 2011, available at http://www.nortrade.com/index.php?cmd=show_article&id=583. 78  Gary Li, “Arctic North Sea Route Study,” IHS Maritime (2013), 9–10, available at www.ihs .com.

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tively straightforward and tried and tested procedures for passage through the Suez and Panama Canals). Further costs are associated with manning and operating ice-strengthened vessels and, particularly, significantly increased insurance premiums. In short, distance savings alone do not tell the whole story as the additional costs of navigating through Arctic waters tend to offset the admittedly substantial savings made in terms of swifter passages and reduced bunkering costs.79 Moreover, the dramatic distance savings mentioned above erode significantly where the East Asian destination is further south such as Hong Kong or Singapore. Additionally, not only are there a distinctly limited number of ice breakers and ice-class ships presently in service but relatively few are on order meaning that the relative paucity of ice-capable vessels is unlikely to change in the immediate future.80

Increasingly International Straits?

Despite all of the caveats noted above, it is clear that Arctic navigation is on the rise, be it destinational in character, for the purpose of inter-oceanic trade, related to oil and gas exploration and servicing activities on the periphery of the Arctic or through increasing yachting and ‘adventure cruising’ in Arctic waters. Additionally, the environmental changes noted above translate to unprecedented impacts on Arctic ecosystems resulting in changes in species composition, interactions between species, and possibly regime shifts.81 This, is leading to shifts with respect to Arctic fisheries as stocks migrate northwards, which, in turn, is heralds changes in the practice of fishing fleets in response and as sea ice retreats, potentially opening up fresh waters for the exploitation of marine living resources. Moreover, a number of the obstacles to the use of Arctic navigational routes outlined above are also likely to be progressively addressed through technological advances and infrastructure investments on the part of Arctic coastal 79  Schofield, “Over the Top? Retreating Sea Ice and the Prospects for Rising Navigation in the Arctic,” 14–15. 80  In this context it has been observed that with respect to container ships 15% of ships in service are ice capable and, further, only 1% of ships on order will be. Similarly, for LNG carriers, 8% of LNG tankers currently in service are ice capable and of those under construction 11% will be ice capable. See Li, “Arctic North Sea Route Study,” 4 and 7. 81  M. Scheffer, S. Carpenter, J.A. Foley, C. Folke, and B. Walker, “Catastrophic Shifts in Ecosystems,” Nature (2001), 413, 591–596.

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states. Such developments include port and infrastructure upgrades, greater efforts to gather and share hydrographic data leading to the publication of better charts, improved positioning technologies and charting, enhanced search and rescue capabilities, as well as oil-spill prevention capacities and improved access to up to date metrological information.82 Additionally, agreements have been reached among the Arctic littorial states regarding search and rescue arrangements and oil spill preparedness (see below). For example, in relation to charting, the establishment of the Arctic Regional Hydrographic Commission from 2010 can be expected to improve regional cooperation leading to the production of improved charting.83 With respect to the Northern Sea Route, the use of ice-strengthen vessels for passage coupled with an increasingly ice-free route may also lead to less and less need for ice-breaker assistance, serving to reduce costs. This would, as noted above, require a change in Russian regulations however. Similarly, the procedures to secure permission to use the route may be streamlined as it becomes a more popular option for shipping. These improvements may collectively, in effect, serve to lengthen the Arctic summer sailing window. The Arctic and other states have also sought to enhance safety of navigation in the Arctic through the Polar Code.84 Thus, while relatively limited at present, it can therefore be anticipated that Arctic navigation will continue to increase especially as Arctic States such as Russia try to enhance development in high latitude areas and improve access to resource developments parts of northern Siberia and as North and East Asian States, particularly China, seek alternative navigational routes as well as diversified sources of supply of raw materials and energy in part in order to counter already strong but increasing dependence on traditional routes— China’s so-called “Malacca Dilemma.”85 Thus, while global shipping patterns 82  See also Roach and Smith, Excessive Maritime Claims, 481–490. 83  See IHO, Arctic Regional Hydrographic Commission, http://www.iho.int/srv1/index .php?option=com_content&view=article&id=435&Itemid=690. See, for example, NOAA, “Arctic Nautical Charting Plan: A Plan to Support Sustainable Marine Transport in Alaska and the Arctic Office of Coast Survey,” Marine Chart Division, 15 February 2013, available at http://www.nauticalcharts.noaa.gov/mcd/docs/Arctic_Nautical_Charting_ Plan.pdf. See also Arctic Council, “Status on Implementation of the AMSA 2009 Report Recommendations,” May 2013, at 7, 14, 16, 18–20 and 22, available at http://pame.is/ images/PAME_NEW/AMSA/AMSA_Progress_Report_May_2013.pdf. 84  A mandatory The International Code for Ships Operating in Polar Waters (Polar Code) was adopted by the IMO’s Maritime Safety Committee in November 2014. See IMO, “Shipping in Polar Waters,” http://www.imo.org/MediaCentre/HotTopics/polar/Pages/default.aspx. 85  As articulated by Chinese President Hu Jintao in November 2003. See, Ian Storey, “China’s ‘Malacca Dilemma’,” China Brief, The Jamestown Foundation, 17 May 2006, available at http://www.asianresearch.org/articles/2873.html.

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are unlikely to be transformed in the near to medium term, Arctic shipping is nonetheless highly likely to continue on its upward trajectory. With respect to the Bering Sea region, existing traffic includes ships utilising the North Pacific Great Circle Route which pass through the Aleutian Islands and the southern Bering Sea such that “thousands of large ships pass north and south of these islands on voyages between the west coast of North America and Asian ports each year.”86 Additionally, large bulk carriers of up to 65,000 tons pass through the Bering Sea in order to carry shipments of ore from the Red Dog mine in north-western Alaska87—one of the largest zinc mines in the world.88 It has been suggested that such destinational traffic is likely to increase in order to serve oil and gas as well as hard mineral exploitation activities in addition to more traditional coastal community resupply activities.89 The well-established and valuable Bering Sea fishing industry also means that fishing vessel activity is concentrated in the region.90 Furthermore, vessels using Arctic routes between the Atlantic and Pacific Oceans must pass through the Bering Sea and Strait. Whereas once these areas as well as the proximate parts of the Arctic Ocean were little-frequented, they are incrementally becoming increasingly international in character. Indeed, the U.S. Coast Guard states there has been a 118% increase in maritime transits through the Bering Strait in the period 2008–2012.91 Increasing numbers of ships passing through the physically restricted maritime space of the Bering Strait in particular, coupled with harsh conditions the continue to prevail in the region present significant challenges. Increased shipping traffic raises the likelihood of adverse impacts on the Bering Sea and Strait marine environment including, for example, “the potential for vessel strikes on marine mammals, particularly the Pacific right whale; the discharge of oil and other pollutants both from routine ship discharge and accidents; and the introduction of invasive species into local ecosystems.”92 Of particular concern is the possibility of accidents involving vessels passing through the Bering Sea and Strait, including the possibility of maritime casualties involving risks to the safety of seafarers and the potential for a major environmental disaster as a consequence of, for example, a major oil spill. Such accidents are not unknown to the region, especially in the vicinity of the 86  AMSA Report 2009, 18. 87  See the Red Dog Mine website at http://www.reddogalaska.com. 88  AMSA Report 2009, p. 76. 89  Ibid., 106. 90  Ibid., 77. 91  U SCG, Arctic Strategy, 13. 92  AMSA Report 2009, 143 and 145–146.

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Aleutian Islands.93 Indeed, in December 2004 the Selendang Ayu, a Malaysianflagged bulk carrier, suffered engine failure, became grounded on Unalaska Island and subsequently broke apart and sank.94 The accident in which six of the crew lost their lives, a U.S. Coastguard helicopter crashed whilst attempting to rescue crewmembers and an estimated 1.7 million litres of intermediate fuel and 55,564 litres of marine diesel were spilled in the ocean.95 The sinking of the Selendang Ayu represents the largest oil spill off Alaska since the Exxon Valdez accident of 1989.96 The spill led to a fisheries closure97 and a $10 million fine for the shipping company concerned.98 More recent incidents such as the grounding of a Shell drill rig, the Kulluk, in late 2012 on the shores of Sitkalidak Island on the southeast margins of the Bering Sea serve to underscore concerns over shipping accidents in the region.99 Increased Arctic Ocean navigation, therefore, is already here and seems only likely to rise further in the future as will the associated risks. Against this context, a clear understanding of maritime jurisdictional rights and responsibilities is vital, as is trans-boundary cooperation between Russia and the United States in order to manage and safeguard the Bering Sea and Strait.

When is a Straight Line not a Straight Line? The Soviet-U.S. Dispute in the Bering Sea

The maritime boundary between the United States and Russia that runs through the Bering Sea, Bering Strait and northwards into the Arctic Ocean is based on the U.S.-Russian Convention of March 1867. The Convention was primarily concerned with the United States’ purchase of Alaska from Russia

93  See, for example, ibid., 86–87, particularly map 5.7 at 87. 94  Ibid., 88–89. 95  Ibid. 96  “Aleutian Oil Spill Now Biggest in Alaska Since 1989,” Reuters, 11 February 2005, available at http://www.enn.com/ecosystems/article/9271. 97  Matt Volz, “Oil Contamination Closes Fisheries in Bering Sea near Grounded Freighter,” Associated Press, 28 December 2004, available at http://www.enn.com/top_stories/ article/667. 98  Yereth Rosen, “IMC Shipping to Pay Fine for 2004 Alaska Oil Spill,” Reuters, 16 August 2007, available at http://www.enn.com/pollution/article/21876. 99  See, for example, “Kulluk: Shell drill rig towed to safety in Alaskan bay”, 7 January 2013, available at, http://www.bbc.com/news/world-us-canada-20937504.

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at a cost of $7.2 million.100 The western limit of the 1867 Convention provided the basis for maritime delimitation, something that the United States, and later, the Soviet Union, accepted in principle. There is no evidence, however, that the drafters of the 1867 Convention intended for the western limit line to serve as a line of delimitation. S. Whittemore Boggs, then Special Adviser on Geography at the U.S. Department of State, observed in 1951: “Most lines in water areas which are defined in treaties are not boundaries between waters under the jurisdiction of the contracting parties, but a cartographic device to simplify description of the land areas involved.” He went on to refer to the 1867 Convention western limit line specifically as being “a line of allocation,” that is, “simply a line to the east of which all land or claim to land was ceded by Russia to the United States.”101 In keeping with the view that the western limit line laid down in the 1867 Convention was no more than a line of allocation, and did not constitute a boundary as such, the U.S. Department of State’s relevant International Boundary Study noted that “the standard symbol for the representation of an international boundary should never be used.”102

100  The Convention was negotiated between the Russian Minister in Washington, Edouard de Stoeckl and U.S. Secretary of State William Seward. The treaty was signed on 30 March 1867, received approval from the U.S. Senate on 9 April the same year and the treaty was signed by President Andrew Johnson on 28 May with Alaska having been formally transferred to the United States on 18 May 1867. While on the face of it it would seems that the United States secured an outstanding deal with each acre of Alaska costing around 2c, the Alaska Purchase was not universally acclaimed at the time on account of concerns over how the large non-contiguous territory was to be governed and secured, leading critics to deride the purchase as “Seward’s Folly.” See, for example, U.S. Department of State, Office of the Historian, “Purchase of Alaska, 1867,” available at http://history.state.gov/ milestones/1866-1898/alaska-purchase. See also Robert W. Smith, “United States-Russia Maritime Boundary,” in Gerald H. Blake (ed.) Maritime Boundaries, World Boundaries, Vol. 5, (London: Routledge, 1994), 91–9, 91–93. 101  On this point Boggs went on to recall Professor Stefan Riesenfeld’s comment that “It can probably be said without exaggeration that the law of territorial waters has been one of the most unsatisfactory portions of international law.” See S. Whittemore Boggs, “Delimitation of Seaward Areas under National Jurisdiction,” American Journal of International Law 45 2 (April 1951), footnote 2, 240; and Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (Carnegie Endowment for International Peace: Washington, 1942), ix. See also The Geographer, Office of the Geographer, Bureau of Intelligence and Research, U.S. Department of State, U.S.-Russia Convention Line of 1867, International Boundary Study, No. 14 (Revised), 1 October 1965, available at http://www .law.fsu.edu/library/collection/limitsinseas/numericalibs-template.html. 102  U.S. Department of State, U.S.-Russia Convention Line of 1867, 4.

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Article 1 is the critical part of the 1867 Convention, and it includes a definition of the “western limit within which the territories and dominion conveyed, are contained,” which is defined as being a line that: . . . passes through a point in Behring’s straits on the parallel of sixty-five degrees thirty minutes north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern, or Ignalook, and the island of Ratmanoff, or Noonarbook, and proceeds due north, without limitation, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest, through Behring’s straits and Behring’s sea, so as to pass midway between the northwest point of the island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy-two west longitude; thence, from the intersection of that meridian, in a southwesterly direction, so as to pass midway between the island of Attou and the Copper island of the Kormandorski couplet or group, in the North Pacific ocean, to the meridian of one hundred and ninetythree degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian islands east of that meridian.103 A number of problems arise from this definition of the western limit line in from the 1867 Convention. While the reference to “the meridian of one hundred and ninety three degrees west longitude,” in Article 1 of the Convention can be readily translated to 167º East longitude, disagreement arose thanks to changes in toponyms and the absence of coordinates for the coastal points mentioned in the Convention. The confusion was compounded by the lack of an official map or chart appended to the agreement that depicted the exact course of the line in question. Additionally, the 1867 Convention did not specify a particular datum against which to refer geographic coordinates, nor was the type of straight line used to connect the turning points of the western limit line specified.104 103  The full text of the 1867 Convention is available from the U.S. Library of Congress at http:// memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=015/llsl015.db&recNum=572. 104  Datum reflects a mathematical model of the surface of the Earth. As the true shape of the Earth (the geoid) is highly irregular a mathematical approximation or geometric model of the shape of the Earth is required for geodetic and mapping. This is termed the geodetic ellipsoid which is often used to reference geographic coordinates and is also referred to as the horizontal datum. See Christopher M. Carleton and Clive H. Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones

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There were no disagreements in principle, with both sides accepting the 1867 Convention’s western limit line as the basis for dividing their maritime jurisdictional responsibilities in the Bering Sea, Strait and into the Arctic Ocean. Yet complex technical issues arose in the interpretation of aspects of the 1867 Convention definition of the western limit line. In particular, the Soviet Union and United States employed different horizontal datums and coordinate systems, meaning that uncertainty prevailed over the exact locations of reference used by each side. Geographic coordinates comprising defined parallels of latitude and meridians of longitude are commonly used to define points, lines and areas at sea. Coordinates alone, however, are meaningless without reference to a geodetic datum.105 Furthermore, the 1867 Convention did not specify the type of ‘straight lines’ to be used in the definition of the western limit line. Several types of straight lines are used in boundary treaties and national legislation. These are defined as follows: Geodesic A Geodesic (or geodetic) line, is a curve giving the shortest distance between two points on a given reference ellipsoid. This is now the generally used ‘straight line’, when calculating lines joining boundary turning points, or calculating the distance between two points, as computer programs generally use the reference ellipsoid as the computing surface. This type of line will generally appear as a curved line on a Mercator projection.106

and Limits, Maritime Briefing, Vol. 3, no. 3 (Durham: International Boundaries Research Unit, 2001), 4–6. See also IHO (with the International Oceanographic Commission and the International Association of Geodesy), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication no. 51, (Monaco: International Hydrographic Bureau, 5th ed., 2014) (hereafter TALOS Manual), Chapter 2, 11–12; and Smith, “United States-Soviet Union,” 97–98. 105  See Carleton and Schofield, Developments in the Technical Determination of Maritime Space, 4. 106  Ibid. On a Mercator projection the latitude and longitude graticules are depicted as straight lines to facilitate plotting positions on the chart. However, distances and areas become significantly distorted when measured on a Mercator projection chart, especially at high latitudes. Ibid., 13.

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Figure 12.2

Competing maritime claims in the Bering Sea and Strait.

Loxodrome/Rhumb Line This is a straight line on a Mercator projection. If this line is referred to a reference ellipsoid it will generally differ from a geodesic and will not be the shortest distance between two points on the ellipsoid. A loxodrome has a constant azimuth. The difference between a loxodrome and a geodesic can be significant depending upon the length of the line, the latitude and the direction.107 Great Circle A great circle is defined as the intersection of a sphere and a plane through its centre. When a ‘straight line is defined as an arc of a great circle, it is 107  Ibid.

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a curve on a Mercator projection, which instead of assuming the Earth is an ellipsoid, assumes it is a sphere. The difference between a geodesic and a great circle is generally relatively small. The difficulty when using a great circle in a computer program is the figure used to define the centre of the Earth, which is assumed rather than mathematically defined as is the case of an ellipsoid.108 Perhaps unsurprisingly each side interpreted the 1867 Convention to its own advantage. Thus, the Soviet Union used rhumb lines (loxodromes), that is, straight lines on Mercator projection, while the United States used arcs of great circle, which constitute straight lines on a conical projection. As a direct consequence of these differing interpretations of which type of straight line should be applied, coupled with the great length of the lines in question of approximately 1,600 nm, substantial areas of overlapping claims resulted.109 The area between the differing interpretations of the 1867 western limit line was calculated to be 20,868 sq. nm (71,577 square km) (Figure 12.2).110

Delimiting the Bering Sea, Strait and Beyond

The issue remained largely dormant until 1977, when both the U.S. and U.S.S.R. introduced 200 nautical mile exclusive economic zones (EEZs), whereupon uncertainty over precise location of the line led to enforcement concerns.111 Not only were marine resources at stake, including valuable fisheries and potential seabed energy resources. The issue also provided an unwelcome potential source of friction in superpower relations at the twilight of the Cold War. These factors helped to motivate the Soviet Union and United States to engage in negotiations in order to finalize their maritime boundary in the Bering Sea region. Turning the western limit line as described in the 1867 Convention into a modern maritime boundary agreement proved to be a challenging exercise,

108  Ibid. 109  Elizabeth G. Verville, “United States-Soviet Union,” Report Number 1–6, in International Maritime Boundaries, Vol. I, eds. Jonathan I. Charney and Lewis M. Alexander (Dordrecht: Brill/Nijhoff, 1993), 447–460, 446. 110  Smith, “United States-Russia Maritime Boundary,” 95. 111  Ibid., 94.

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Figure 12.3 The U.S.S.R. – U.S. maritime boundary.

fraught with complex technical hurdles. Resolution of the Soviet-U.S. dispute and delimitation of the maritime boundary between them on the basis of the 1867 Convention western limit line required eleven rounds of negotiations spanning nine years, beginning in 1981 and extending through to signature of the Agreement between the United States of America and The Union of the Soviet Socialist Republics on the Maritime Boundary on 1 June 1990.112 112  The full text of the treaty and accompanying exchange of notes are reproduced in Verville, “United States-Soviet Union,” 454–460. See also Smith, “United States-Russia Maritime Boundary,” 94.

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Figure 12.4

337

Delimitation through the Bering Strait.

The 1990 agreement provides for a single maritime boundary agreement relevant to the delimitation of their territorial sea, continental shelf and EEZ rights in the Arctic Ocean and the northern Pacific Ocean. A particular focus of the negotiations leading to the 1990 agreement had been devoted to discerning exact locations of points and places mentioned in the 1867 Convention and thus ascertaining an accurate identification of the western limit of the 1867 Convention. Thus, according to Article 1 of the 1990 agreement this limit is defined according to Article 2 of the 1990 treaty as follows: 1.

2. 3.

From the initial point, 65° 30’ N., 168° 58’ 37” W., the maritime boundary extends north along the 168° 58’ 37” W. meridian through the Bering Strait and Chukchi Sea into the Arctic Ocean as far as permitted under international law. From the same initial point, the maritime boundary extends southwestward and is defined by lines connecting the geographic positions set forth in the Annex, which is an integral part of this Agreement. All geographic positions are defined in the World Geodetic System 1984 (“WGS 84”) and, except where noted, are connected by geodetic lines.

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The maritime boundary delimited by the U.S.S.R./Russian Federation and the United States therefore starts from a defined point in the northern Pacific Ocean and proceeds northwards through the Bering Strait and into the Chukchi Sea om the Arctic Ocean. The phrase “as far as permitted by international law,” reflects an accommodation in terms of the language used designed overcome the parties differing positions with Russia favouring a sector line approach, which the United States had rejected.113 From the same defined point the agreed maritime boundary line runs generally in a south-westerly direction through the Bering Sea in a compromise between the competing positions of the parties (Figure 12.3). Article 2 of the 1990 agreement also reflects the fact that the parties agreed on the use of a common reference system or geodetic datum against which the coordinates included in the agreement are referred.114 The parties also resolved issues related to toponyms.115 With the exception of specific parts of the agreement noted in the annex, the straight lines defined between the designated geographic coordinates of turning points in the boundary line are defined as geodesics.116 As a result of this agreement, the maritime boundary delimited is defined by 87 points and places around 70% of the Bering Sea on the U.S. side of the line. The boundary line passes between the Diomede Islands, and so divides the Bering Strait between the two parties (Figure 12.4). A particularly innovative feature of the agreement is creation of so-called “Special Areas.” These are maritime areas that are within 200 nm of one party, but located on the “other side” of the agreed line, and as such are administered by the other party. The creation of these Eastern and Western “Special Areas,” ensures that one party or the other exercises maritime jurisdiction over all of the maritime spaces within 200 nm of their coast. The Eastern Special Areas constitute maritime spaces within 200 nm of the baselines of the Soviet Union, and beyond 200 nm from the baselines of the United States, but within which:

113  Verville, “United States-Soviet Union,” 450. 114  Ibid., 452. See also Smith, “United States-Russia Maritime Boundary,” 97–98. 115  Ibid. 116  The exceptions to this rule according to the 1990 agreement’s annex are 200 nautical mile arcs defined around particular positions and a section of the boundary between turning points 37 and 38 which is defined by a rhumb line. See Agreement between the United States of America and The Union of the Soviet Socialist Republics on the Maritime Boundary, Annex. Reproduced in Verville, “United States-Soviet Union,” 457–460.

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. . . the Soviet Union agrees that henceforth the United States may exercise the sovereign rights and jurisdiction derived from exclusive economic zone jurisdiction that the Soviet Union would otherwise be entitled to exercise under international law in the absence of the agreement of the Parties on the maritime boundary.117 Similarly, a Western Special Area was created which comprises a maritime space within 200 nm of the baselines of the United and beyond 200 nm from the baselines of the Soviet Union, but within which: . . . the United States agrees that henceforth the Soviet Union may exercise the sovereign rights and jurisdiction derived from exclusive economic zone jurisdiction that the United States would otherwise be entitled to exercise under international law in the absence of the agreement of the Parties on the maritime boundary.118 These Special Areas are illustrated in Figure 12.3. Article 3 of the 1990 agreement includes creative transfer of jurisdiction provisions, which emphasise that the maritime jurisdictional rights to areas beyond 200 nm from one part, but administered by that party arise by virtue of the areas in question being within 200 nm of the other party and through agreement. It is explicitly stated that the excise of sovereign rights in the Special Areas defined through the agreement “derives from the agreement of the Parties and does not constitute an extension of its exclusive economic zone.”119 Moreover, Article 4 of the agreement provides an unequivocal statement that the agreement does not run counter to the international law of the sea as follows: The maritime boundary as defined in this Agreement shall not affect or prejudice in any manner either Party’s position with respect to the rules of international law relating to the law of the sea, including those concerned with the exercise of sovereignty, sovereign rights or jurisdiction with respect to the waters or seabed and subsoil.120 117  See Agreement between the United States of America and The Union of the Soviet Socialist Republics on the Maritime Boundary, Article 3(1). Reproduced in Verville, “United StatesSoviet Union,” 456. 118  Ibid., Article 3(2). 119  Ibid., Article 3(3). 120  Ibid., Article 4.

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Subsequent Developments

The Soviet-US Agreement was signed on 1 June 1990. It was subsequently transmitted to the U.S. Senate on 26 September 1990 with the Senate duly giving its advice and consent on 16 September 1991. The Russian Federation, as successor State to the U.S.S.R., however, has yet to ratify the treaty. Although this might be deemed to be an unsatisfactory state of affairs, the situation is to a large extent mitigated by the fact that the two sides entered into an exchange of notes on same day the treaty was signed, wherein it is stated that “pending the entry into force of the Agreement, the two Governments agree to abide by the terms of that Agreement as of June 15, 1990.”121 Accordingly, the terms of the 1990 agreement have been applied since 15 June 1990. It is also worth noting that Russia’s subsequent practice has been in keeping with the 1990 maritime delimitation agreement with the United States. In particular, Russia’s submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS) includes maps depicting an outer continental shelf limit consistent with the 168° 58’ 37” W meridian specified in Article 2 of the 1990 maritime boundary agreement with the United States,122 albeit extending all the way to the North Pole.123 This extension northward presumably is Russia’s interpretation of the meaning of the phrase “as far as permitted under international law” mentioned above. Additionally, the 1990 agreement between the Soviet Union and United States appears to have inspired the development of some analogous practice. In 2010 Norway and Russia were able to resolve their longstanding dispute in relation to the Barents Sea. Through the agreement, signed on 15 September 2010, the two sides agreed to divide up an overlapping area of approximately 175,200 km2.124 Of particular relevance to the present discussion, the Norway-Russia agreement includes a “Special Area” within 200 nm of Norway but beyond 200 nm from Russia, where Russia exercises sovereign rights and jurisdiction 121  Reproduced at Verville, “United States-Soviet Union,” 454. 122  Ibid., 455. 123  See Submission by the Russian Federation, Map 2, “Area of the continental shelf of the Russian Federation in the Arctic Ocean beyond 200-nautical-mile-zone,” available from the CLCS website at http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/ RUS_CLCS_01_2001_LOS_2.jpg. 124  Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, reproduced in Rolfe Einar Fife, “Norway-Russian Federation,” International Maritime Boundaries (2012).

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derived from EEZ jurisdiction that Norway would otherwise have been entitled to exercise.125 This arrangement would appeat to follow the lead of the innovative practice pioneered by the U.S. and U.S.S.R./Russia in the Bearing Sea, Strait and beyond.

Managing a Transboundary International Strait

The agreement reached between the Soviet Union and the United States in 1990 innovatively resolved a number of contentious issues and, as a consequence, maritime jurisdictional issues in the Bering Sea, Strait and into the Arctic Ocean are well established, notwithstanding the fact that Russia has yet to formally ratify the treaty. Indeed, the provisions established through the agreement have been applied for almost a quarter of a century. Therefore, the U.S.-Russian maritime boundary dispute in the Bering Sea region has been resolved, despite some commentators still occasionally characterizing Russia’s non-ratification of the agreement as a “dispute.”126 This boundary agreement and trans-boundary cooperative arrangements across it, are likely to be increasingly relevant in light of the substantial environmental changes in high northern latitudes. Both Russia and the United States are therefore “straits States,” even if in the past it was less readily apparent that the Bering Strait meets the definition of being a strait “used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone” as laid down in Article 37 of the United Nations Convention on the Law of the Sea (UNCLOS).127 The regime of transit passage through international straits therefore applies to the Bering Strait. Both Russia and the United States have a strait within their own territorial sea, as well as share the extremely narrow strait that separates the two Diomede Islands and through which their maritime boundary passes. Concerning the 125  Ibid., Article 3. 126  See, for example, Vlad M. Kaczynski, “US-Russian Bering Sea Marine Border Dispute: Conflict Over Strategic Assets, Fisheries and Energy Resources,” Russian Analytical Digest, 20/07, 1 May 2007, 2–5, available at http://www.css.ethz.ch/publications/pdfs/RAD20.pdf. 127  United Nations Convention on the Law of the Sea (UNCLOS), opened for signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3, available at http://www .un.org/Depts/los/convention_agreements/ convention_overview_convention.htm.

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apparently unique characteristic of the Bering Strait effectively comprising two distinct straits, each under the jurisdiction of one of the bordering States, Van Dyke noted that “[a]lthough the Law of the Sea Convention does not recognize any special regime for straits within a single country, in general, it does contain hints of such a regime,” in the shape of the special regimes applicable to the Strait of Messina, the Turkish Straits, the Danish Straits and Strait of Magellan.128 He speculated that it may be the case that “a country can exercise greater control over a strait passing between two land areas it has sovereignty over, than with regard to a strait that passes through two separate countries.”129 While the Bering Strait is clearly divided by virtue of the 1990 agreement, increasing shipping, coupled with the inherent and ongoing challenges of navigating through the Bering Sea and Strait and into the Arctic Ocean make trans-strait cooperation especially important. Fortunately, despite tensions in other policy arenas, cooperation between Russian and U.S. authorities with respect to the management of the Bering State is longstanding and in robust health. Indeed, Kraska has termed cross-Bering Strait cooperation “the most functional bilateral relationship between the two countries,” pointing to daily and ongoing functional cooperation between the 17th District of the U.S. Coast Guard and eastern region of Russia’s Federal Border Service.130 This pragmatic, cooperative relationship has endured since the two agencies reached an agreement in 1995,131 and the agreement was supplemented by an additional protocol in 2001.132 Additionally, in 1989 the U.S.S.R. and the United States concluded an agreement133 to develop a Joint Contingency Plan against Pollution 128  Jon M. Van Dyke, “Rights and Responsibilities of Strait States,” in Navigating Straits: Challenges for International Law, eds. David D. Caron and Nilufer Oral (Leiden/Boston: Brill/Nijhoff, 2014), 33–45, 35. 129  Ibid. 130  James Kraska, “From Pariah to Partner—Russian-American Security Cooperation in the Arctic Ocean,” ILSA Journal of International and Comparative Law 16:2 (Winter 2010), 1–18, 16. See also James Kraska and Betsy Baker, Emerging Arctic Security Challenges, Center for a New American Security (CNAS) Policy Brief (March 2014), 2, available at http://www .cnas.org/Emerging-Arctic-Security-Challenges. 131  Memorandum of Understanding between the United States Coast Guard and the Federal Border Service of the Russian Federation, 20 October 1995. See ibid. 132  Promulgation of Agreed Operational Procedures as Outlined in the Combined Operations Manual Between the United States Coast Guard and the Federal Border Service of the Russian Federation, 9 April 2001. Ibid., 17. 133  See Agreement between the Government of the United States of America and the government of the Union of Soviet Socialist Republics Concerning Cooperation in Combating Pollution in

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in the Bering and Chukchi Seas, which was later renamed the United States of America and Russian Federation Joint Contingency Plan following the break-up of the Soviet Union.134 Despite these cooperative efforts, at present there are no routing measures in place for the Bering Strait. The Arctic Marine Shipping Assessment of 2004, however, indicates that “[a] Traffic Separation Scheme may need to be established in the region as vessel traffic increases.”135 The same report also noted the absence of an active “Vessel Traffic Service (VTS) or other traffic management system,” and that “Shipboard Automated Identification System (AIS) capability is currently limited.”136 One plausible suggestion is that it be recommended or required for “northbound traffic to use the eastern strait and southbound traffic to use the western strait.”137 In this context it can be noted that the U.S. Coast Guard is conducting a Bering Strait Port Access Route Study, and it is anticipated that the results of this study may include recommendations for a traffic separation scheme and designation of areas to be avoided or similar mechanisms which, will require consultation and close cooperation with Russia as well as international institutions, such as the International Maritime Organization (IMO).138 The IMO is recognized, in keeping with Regulation 10 of Chapter V of the International Convention for the Safety of Life at Sea (SOLAS) of 1974,139 as the international body responsible for establishing such systems.140 These collective arrangements primarily related to security issues have been supplemented by more recent cooperative efforts in the wider Arctic the Bering and Chukchi Seas in Emergency Situations, 11 May 1989, available at http://dec .alaska.gov/spar/perp/plans/uc/mou/Kp-US_USSR_89.pdf. 134  Ibid., Annex 1. See also AMSA Report 2009, 108. 135  A MSA Report 2009, p. 109. 136  Ibid. 137  See J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims (Leiden/Boston: Brill/Nijhoff, 3rd ed., 2012), 480. 138  U SCG, Arctic Strategy, 13. 139  See IMO, “International Convention on the Safety of Life at Sea (SOLAS), 1974,” http:// www.imo.org/About/Conventions/ListOfConventions/Pages/International-Conventionfor-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx. 140  See also IMO, “Ships Routeing,” http://www.imo.org/OurWork/Safety/Navigation/Pages/ ShipsRouteing.aspx; and IMO, Guidance Note on the Preparation of Proposals on Ships Routeing Systems and Ship Reporting Systems for Submission to the Sub-Committee on Safety of Navigation, MSC/Circ. 1060, 6 January 2003, available at http://www.imo.org/ OurWork/Safety/Navigation/Documents/1060.pdf.

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context, such as with respect to search and rescue and oil-spill preparedness.141 Additionally, cross-Bering Strait initiatives include U.S. President Barack Obama and Russian President Dmitry Medvedev’s declaration on deepening trans-boundary cooperation relating to the protection of nature and natural resources of 26 May 2011,142 and the subsequent creation of a trans-boundary protected area through the formal linkage of national parks on both sides of the Bering Strait as of 10 September 2012.143 Overall, these engagements have led to discussions on the cooperative trans-boundary management of the emerging maritime region of the Bering Sea and Strait, including the development of infrastructure and facilities as well as clear mechanisms to ensure safety of navigation in the face of significantly increased shipping in these still hazardous waters. In light of the clearly rising trend in maritime activities, especially navigation in the Bering Strait region, such developments are sorely needed. In particular, the provision of adequate search and rescue assets and facilities, as well as emergency response infrastructure, are becoming pressing issues. This United States has comparatively less capability than Russia in this regard—a glaring asymmetry in terms of capacity to operate in the Bering Strait region and the Arctic more generally. Despite recognition that, “[a]s the Arctic opens the Bering Strait will have increased strategic importance,”144 U.S. Arctic operational capabilities appear to be sorely lacking. For example, Kraska and Baker point to a “critical shortfall” in respect to key equipment to operate in high latitudes,145 noting that “[this] infrastructure is almost non-existent,”146 with the key U.S. Government agency in the region, the U.S. Coast Guard, being “woefully undercapitalized.”147 Thus, while ongoing cooperative efforts spanning the Bering Strait are to be warmly welcomed, much remains to be achieved to address the challenges ahead.

141  Kraska and Baker, Emerging Arctic Security Challenges, p. 2 142  “U.S., Russia Collaborate on Bering Strait Protection, Smart Grids,” Environment News Service, 26 May 2011, available at http://ens-newswire.com/2011/05/26/u-s-russiacollaborate-on-bering-strait-protection-smart-grids/. 143  “U.S. and Russia Link Parks Across Bering Strait,” Environment News Service, 10 September 2012, available at http://ens-newswire.com/2012/09/10/u-s-and-russia-linkparks-across-bering-strait/. 144  United States Navy, Arctic Roadmap, 2014–2030, 6. 145  Including “icebreakers, ice-strengthened patrol vessels and long-range maritime patrol aircraft” as well as the infrastructure to support them. Kraska and Baker, Emerging Arctic Security Challenges, 5. 146  Ibid. 147  Ibid., 4.

Chapter 13

The Role of Indigenous Peoples in Managing Offshore Arctic Resources Jordan Diamond This paper explores how indigenous peoples have been included in some of the prominent mechanisms relevant to Arctic management, focusing on the transnational and international instruments and processes that affect subsistence marine resources. The Arctic has been home to indigenous peoples for thousands of years. In extreme and often life-threatening conditions, indigenous populations have developed the skills, knowledge, and experience to subsist off the terrestrial and marine resources around them. Yet the Arctic is undergoing rapid change, both ecologically, as a changing climate alters longestablished patterns and conditions, and economically, as greater accessibility leads to growing commercial interest. From vast resources under the seabed to shortened shipping routes, and from tourism opportunities to potential new fisheries, increasing activities may affect the fish and wildlife that provide the nutritional and cultural foundation for many Arctic coastal communities. As access and interest in the region has grown, so have the national, transnational, and international debates about how best to manage the region. Discussions have included questions about the potential effects on subsistence. Yet the role of indigenous peoples in the legal and policy institutions created, and thus these discussions, varies widely.

* Jordan Diamond is currently the Executive Director of the Center for Law, Energy, and the Environment and the Academic Coordinator for the Law of the Sea Institute at the University of California, Berkeley, School of Law. This article was written while she was the Co-Director of the Ocean Program at the Environmental Law Institute, and draws upon the Institute’s work in the Arctic. She wishes to extend particular thanks to Dr. Kathryn Mengerink, her collaborator on numerous projects and initiatives in the region. For more information on the Environmental Law Institute’s Arctic research, please visit www.eli-ocean.org/arctic.

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I Introduction Conventional international law traditionally has been composed of instruments concluded between independent and equal sovereign States.1 The Vienna Convention on the Law of Treaties is phrased in terms of the relations among States, clearly distinguishing intergovernmental organizations as separate entities, and explicitly defines a treaty as an “international agreement concluded between States.”2 The Convention does not apply to international agreements concluded between States and “other subjects of international law,” or exclusively between such other subjects, except to the extent it governs relations between State members to such agreements.3 It does, however, apply to treaties formed or adopted by intergovernmental organizations.4 This traditional viewpoint of international law as the exclusive domain of States is increasingly challenged, however, by the emergence of identities beyond simply sovereign and subordinate. One of the key elements has been the growth of transnational indigenous identities within the past century.5 Today, the majority of international fora are still led by State representatives. Yet there is increasing consideration of how non-State participants may or should be included in the proceedings. A key aspect is the emerging recognition of the distinct position of indigenous peoples. The role of indigenous peoples is frequently recognized in binding measures at the national level, with the special rights of indigenous peoples differentiated from those of stakeholders,

1  The major sources of international law include treaties between and among States, as well as customary international law, decisions by courts and tribunals, and writings of publicists. See Article 38(1)(a)(b) and (c), Statute of the International Court of Justice (ICJ Stat.) 26 June 1945, 59 Stat. 1055, 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 Am. J. Int’l L. Supp. 215 (1945). 2  Vienna Convention on the Law of Treaties, UN Doc. A/Conf.39/27, 1155 UNTS 331, 23 May 1969, 8 ILM 679 (1969), 63 Am. J. Int’l L. 875 (1969). See Article 2(1), definitions of “Treaty,” “Negotiating State,” “Contracting State,” “Party,” “Third State,” and “International organization.” 3  Ibid., Article 3. 4  Ibid., Article 5. 5  Lillian Aponte Miranda, “Indigenous Peoples as International Lawmakers,” University of Pennsylvania Journal of International Law 32.1 (2010), 243–48 (describing advances within the past 40 years); Timo Kourikova and Adam Stepien, “How International Law Has Influenced the National Policy and Law Related to Indigenous Peoples in the Arctic,” Waikato Law Review 19 (2011), at 124–25 (describing indigenous peoples’ use of international fora over the past century).

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interested parties, and the public at large.6 At the international level, while principles regarding the inclusion of indigenous peoples in matters that affect them are articulated in multiple international instruments, the nature of how this inclusion occurs in practice is in flux. Some international bodies include designated roles for participants other than traditional State parties—such as intergovernmental organizations, nongovernmental organizations, and others.7 As this practice is still emerging, however, its trends and norms are still developing. Currently the parameters of how, when, and why non-State actors may participate in an international forum varies significantly among international bodies. This article explores how these threads intersect in the Arctic region with regard to the involvement of the indigenous peoples engaged in ocean and coastal management in the region. It begins with identifying key instruments that call for the inclusion of Arctic indigenous peoples in matters that affect their interests, and then discusses how Arctic indigenous peoples are included in cross-cutting international fora important to Arctic issues. Considered in tandem, these threads form a mosaic of the participation network for indigenous peoples in international Arctic offshore resource decision-making. II

Principles of Indigenous Participation

The emergence and evolution of an indigenous peoples’ narrative in international law is an area that experts have vigorously explored.8 For present purposes, it suffices to note that recent decades have raised questions about the status of indigenous peoples in international management processes that affect their interests. While the traditional view has been that agreements among States are binding and processes involving non-State actors may result in soft law, today there appears to be a gray area when considering the participation of non-State 6  For example, for a discussion of Alaska Native rights in U.S. Arctic management processes, see Jordan Diamond, Greta Swanson & Kathryn Mengerink, “Rights and Roles: Alaska Natives and Marine Subsistence Resources,” Florida A&M Law Review 8 (2013). 7  See infra for examples of the types of inclusion. 8  See, for example, S. James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2d ed. 2004); Russel Lawrence Barsh, “Indigenous Peoples in the 1990s: From Object to Subject of International Law?,” Harvard Human Rights Journal 7 (1994); Miranda, “Indigenous Peoples as International Lawmakers.”

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actors in international lawmaking processes.9 Numerous questions arise, including those related to possible changes in the nature of what comprises international law broadly and the legal identity of international entities and organizations. The focus of this paper is on the nature of the opportunities indigenous peoples have to participate in international lawmaking beginning from an examination of non-State actors, then homing in on the special role and rights of indigenous peoples. While not included as decision-makers, nonState actors are frequently involved in the broader processes that surround the decision-making. The question becomes more complex as one narrows from the role of non-State actors broadly to the role of indigenous peoples specifically, given the myriad factors that distinguish indigenous peoples’ positions from those of stakeholders or the public at large. Recent decades have witnessed the formation of a transnational indigenous identity and referential category.10 Lillian Aponte Miranda attributes the evolution to four primary factors: 9   See, for example, Steve Charnovitz, “Nongovernmental Organizations and International Law,” American Journal of International Law 100 (2006) (opening with the statement that “[NGOs] have exerted a profound influence on the scope and dictates of international law.”); Jose E. Alvarez, “Governing the World: International Organizations as Lawmakers,” Suffolk Transnational Law Review 31 (2008), 596 (positing that “While it might have been fairly accurate once to describe states as the exclusive, and not only the primary, lawmaking actors, that is no longer the case today. . . . [International Organizations] are new lawmaking actors in their own right and their normative impact cannot be reduced to those of their member states.”); Duncan B. Hollis, “Why State Consent Still Matters— Non-State Actors, Treaties, and the Changing Sources of International Law,” Berkeley Journal of International Law 23 (2005), 38 (discussing premises such as “the current role non-state actors play in the treaty process may thus reflect the beginning of a shift in the international legal order from a community of sovereign states making the law to one where states and other non-state actors with varying levels of authority make the law,” in the context of the role of sub-state, supranational, and extra-national actors’ involvement with state consent in international law); Timo Koivurova & Leena Heinämäki, “The participation of indigenous peoples in international norm-making in the Arctic,” Polar Record 42.221 (2006), 102 (“It is nowadays commonplace to say that the principle of sovereignty of states is in decline, the argument being that nation-states cannot exercise their freedom with the host of legal obligations that constrain their actions in almost all policy areas. Indeed, we might argue that the basic principle of international law, state sovereignty, is changing, a development that should be reflected in the question of who can participate in the international lawmaking process.”). 10   Miranda, “Indigenous Peoples as International Lawmakers,” at 243–48 (describing advances over the past four decades); Kourikova and Stepien, “How International Law Has Influenced,” at 124–25 (describing indigenous peoples’ use of international fora over the past century).

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(1) shifts in ideological conceptions of indigeneity; (2) local affronts to indigenous peoples’ way of life and greater opportunities for transnational coalition-building, simultaneously facilitated by circumstances of globalization; (3) attention under international law to promoting ideals of participatory democracy; and (4) advocacy by indigenous peoples aimed at greater recognition of participatory rights.11 This evolution was accompanied by the development of various mechanisms and instruments calling for the participation of indigenous peoples in decision-making that affects them. Two key instruments are described below. First, in 1989 the International Labour Organization (ILO) adopted Convention No. 169, entitled the Indigenous and Tribal Peoples Convention.12 The Convention, a revision of the ILO’s first effort over 30 years earlier to create an international instrument on the subject,13 centers on the protection and respect for the integrity of the rights of indigenous and tribal populations. It “[notes] that in many parts of the world [indigenous and tribal] peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded,” while “[c]alling attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international co-operation and understanding.”14 Rather than defining tribal and indigenous peoples, the Convention emphasizes self-identification as defining the peoples to which it applies.15 ILO 169 has been cited as an articulation of customary international law in its formulation of the rights of indigenous peoples.16 One of the key focus 11  Miranda, “Indigenous Peoples as International Lawmakers,” at 219. 12  ILO Convention No. 169, Indigenous and Tribal Peoples Convention, 27 June 1989, entry into force 5 September 1991 (ILO 169). 13  ILO Convention No. 107, Indigenous and Tribal Populations Convention, 26 June 1957, entry into force 2 June 1959 (ILO 107). Since the establishment of ILO 169, ILO 107 is no longer open for ratification. The Convention is still in force, however, for 17 signatory states: Angola, Bangladesh, Belgium, Cuba, Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Syrian Arab Republic, and Tunisia. The list of ratifications is available via ILO’s website at www.ilo.org. 14  ILO 169, Preamble. 15  ILO 169, Article 1(2). 16  Miranda, “Indigenous Peoples as International Lawmakers,” at 236 (citing James Anaya, “Indigenous Rights Norms in Contemporary International Law,” Arizona Journal of International Law and Comparative Law 8.2 (1991), at 9–10; James Anaya and Robert Williams, Jr., “The Protection of Indigenous Peoples’ Rights Over Lands and Natural

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areas of the Convention is the duty of consultation that governments owe to indigenous peoples. Specifically, governments are instructed to, when applying the provisions of ILO 169, “consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.”17 As described in the ILO guide to the Convention, consultation is meant to be a substantive and meaningful engagement, as it “is not merely the right to react but indeed also a right to propose.”18 The consultation framework is supplemented by provisions specifically related to development and to natural resources. One article states that indigenous peoples “shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use,” and “shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.”19 A second article specifies that indigenous peoples’ rights related to natural resources of their lands “shall be specially safeguarded,” including rights to engage in resource use, management, and conservation.20 Together, these provisions require governments to consult with indigenous peoples on lawmaking activities that affect them, to respect indigenous peoples’ priorities for development that affects their lives and livelihoods, and to safeguard the rights of indigenous peoples to participate in natural resource management, including utilization and protection. For current purposes, a key question is whether the consultation and participation requirements apply within the domestic context only or also beyond—that is, are indigenous and tribal peoples required to be included in international fora? James Anaya, author of Indigenous Peoples and International Law, believes they are, as called for in several international instruments and as exemplified by the inclusion of indigenous peoples in various United Nations and other international bodies.21 Regardless of outcome on this question, Resources Under the Inter-American Human Rights System,” Harvard Human Rights Journal 14 (2001), at 53–54; and Maygan (Sumo) Awas Tingni Community v. Nicaragua, Judgment, Inter-American Court of Human Rights (ser. C) No. 79 (Aug. 31, 2001)). 17  ILO 169, Article 6(1)(a). 18  ILO, International Labour Standards Department, Indigenous and Tribal Peoples’ Rights in Practice—A Guide to ILO Convention No. 169 (2009), at 60. 19  ILO 169, Article 7(1) 20  ILO 169, Article 15(1). 21  James Anaya, Indigenous Peoples in International Law 153–54 (2004).

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however, a major challenge when discussing the effect in the Arctic region is that ILO 169 has not been adopted by the majority of Arctic nations. Entering into force on September 5, 1991, ILO 169 has been ratified by 22 States; among the Arctic States, this includes only Denmark and Norway.22 Second, enacted in 2007, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is a “standard of achievement” meant to guide the actions of UN members in their course of duty.23 It has been described as a “bill of rights for indigenous peoples” that “covers rights related to the preservation of cultural identity, the protection of traditional lands and resources, and the right to pursue development in keeping with a community’s own needs and aspirations.”24 It outlines a spectrum of rights and the obligations of States to help safeguard them. Commentators have remarked that the reason it has been as influential as it has is that “it was negotiated directly between States and indigenous peoples for over twenty years.”25 Several provisions concern indigenous peoples’ rights to participate in decision-making that will affect them, to be consulted with regard to State actions that might affect them, and to lead the development of their land and other resources. Specifically, Article 18 notes that indigenous peoples are entitled to participate in decisions that would affect their rights “through representatives chosen by themselves in accordance with their own procedures.”26 Article 19 describes State obligations to consult and cooperate with indigenous peoples—in good faith—to seek consent before taking legislative or administrative action that may affect them.27 Further, Article 32 describes indigenous peoples’ rights “to determine and develop priorities and strategies for the development or use of their lands or territories and other resources,” and that States shall consult and cooperate with them, through their own institutions, to obtain consent before approving projects that may affect such resources.28 22  ILO 169 is currently in force for Argentina, Bolivia, Brazil, Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela. The list of ratifications is available via the ILO website at www.ilo.org. 23  United Nations Declaration on the Rights of Indigenous Peoples, UN General Assembly Resolution 61/295, 13 September 2007 (UNDRIP). 24  Miranda, “Indigenous Peoples as International Lawmakers,” at 242. 25  Kourikova and Adam Stepien, “How International Law Has Influenced,” at 142. 26  UNDRIP, Article 18. 27  UNDRIP, Article 19. 28  UNDRIP, Article 32. The provision emphasizes consultation and consent “particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” Ibid., Article 32(2).

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In sum, the provisions within ILO 169 require governments to consult with indigenous peoples on lawmaking activities that affect them; to respect indigenous peoples’ priorities for development that affects their lives and livelihoods; and, in general, to safeguard the rights of indigenous peoples to participate in natural resource management, including utilization and protection. Similarly, the relevant provisions within UNDRIP create a framework in which indigenous peoples are actively involved in and consulted on decisionmaking related to their interests, and in which they can lead prioritization of and action on the development of their natural resources. In tandem, these instruments paint a picture of active indigenous involvement in decisions that affect them. How this is to be achieved, however—and at what level or scale— is unclear. III

How Indigenous Peoples are Included in International Arctic Offshore Resources Management

Shifting from principles to practice, this section explores how indigenous peoples participate in several international management fora related to Arctic offshore resources management. It is not a comprehensive review of all indigenous roles in Arctic management but rather an appraisal of the logistical and practical parameters of indigenous participation in three key yet very different entities. At a high level, indigenous peoples may participate in international processes in a variety of ways. They can be part of organizations that cut across identities or boundaries, such as nongovernmental organizations or transnational entities, or they can stand forth individually. As noted by one commentator, “at the micro-level, indigenous peoples’ participatory role in international lawmaking is not appropriately cabined within existing categories of a­ nalysis. . . . Nevertheless, indigenous peoples are best understood as comprising a loose transnational network composed of sub-national, identitybased, local communities.”29 Beyond the question of whether a forum is open to indigenous peoples, however, are the specifics of how it is open. Can indigenous participants affect decision making? Can they attend meetings, and review and offer suggestions on the agenda beforehand? Are resources provided to support their participation? These questions target the level of involvement of indigenous peoples 29  Miranda, “Indigenous Peoples as International Lawmakers,” at 213.

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in these international fora, to assess strengths, weaknesses, and trends in the approaches. The section that follows focuses on frameworks of three key fora related to Arctic offshore management—the International Maritime Organization, the work of the Parties to the Convention on Biological Diversity, and the Arctic Council—as examples of the different structures for indigenous engagement and how they operate in practice. The discussion is organized by a focus on the roles designated for indigenous peoples’ participating in the body; the rights linked to such roles; and the resources provided to support their participation. a International Maritime Organization The International Maritime Organization (IMO) was established by the Convention for the Establishment of an Inter-Governmental Maritime Consultative Organization, which entered into force in 1958. Today, this UN specialized agency is responsible for “the safety and security of shipping and the prevention of marine pollution by ships.”30 Roles There are three ways that entities participate in the IMO: as Member States or Associate Members, as an organization with Observer Status, or as an organization with Consultative Status. There are currently 170 Member States, including all eight Arctic nations, and three Territories that are Associate Members.31 There are 63 intergovernmental organizations that hold Observer Status. Per its website, the IMO “may enter into agreements of co-operation with other intergovernmental organizations on matters of common interest with a view to ensuring maximum co-ordination in respect of such matters.”32 Finally, there are 77 nongovernmental international organizations (NGIO) that possess consultative status. The establishing Convention states that the IMO “may, on matters within its scope, make suitable arrangements for consultation and co-operation with non-governmental international organizations.”33

30  IMO, Introduction to IMO, www.imo.org/about. 31  The Associate Members are the Faroe Islands, Hong Kong, and Macao. For a full membership list, see IMO, Member States, www.imo.org/About/Membership/Pages/ MemberStates.aspx. 32  IMO, Membership, www.imo.org/about/membership. 33  Convention on the Intergovernmental Maritime Consultative Organization, 289 UNTS 3, 6 March 1948, Article 48.

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To gain consultative status, an organization must demonstrate several key attributes. In general, per the Rules Governing Relationship with NonGovernmental International Organizations, the governing Council of the IMO may grant consultative status to any non-governmental international organization “which is able to make a substantial contribution to the work of the [IMO].”34 The IMO’s website suggests that this provision has been interpreted to mean the NGIO both (a) can substantively contribute to the IMO’s work and (b) has the capacity (e.g., financial resources) to do so.35 The IMO Council also must verify that the activities of the NGIO are “related directly” to the IMO’s purpose, that its objectives and functions are “fully in harmony with the [IMO’s] spirit, functions and principles,” that it does not already have access to the IMO through another party with consultative status and that granting such status would not lead to duplication or conflict, and that it “undertakes to support” IMO activities and to promote the dissemination of IMO principles and work.36 Logistically, the NGIO must have permanent headquarters, an executive officer and governing body, and authorization to speak for its members.37 Finally, it must be “truly international with members, component branches or affiliated bodies in a sufficient number of countries,” otherwise the Council may only grant consultative status on a provisional basis.38 The IMO website interprets this requirement as requiring organizations to have members representing “a broad geographical scope and, usually, more than one region.”39 To apply for consultative status, an organization sends the IMO SecretaryGeneral a formal letter and completed questionnaire that includes information about the organization’s purpose and activities.40 Applications are considered only once per year, and must be received by 31 March to be considered at the first IMO session each year, which typically occurs in June.41 If an application is rejected, the NGIO cannot reapply for at least two years.42 34  Ibid., Rule 1. 35  Ibid., Rule 8. 36  Ibid., Rules 3–4. 37  Ibid., Rule 5. 38  Ibid., Rule 5. 39  IMO, Membership, www.imo.org/about/membership. 40  Ibid.; IMO Questionnaire for Non-Governmental International Organizations (NGOs) Applying for Consultative Status with IMO, available at www.imo.org/about/member ship/Pages/Default.aspx. 41  IMO, Membership, www.imo.org/about/membership; IMO, Rules and Guidelines for Consultative Status, Rule 9. 42  Ibid., Rule 9.

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The IMO Council periodically reviews the consultative status list of entities to assess “whether the continuance of their status in any particular case is necessary and desirable.”43 If an NGIO is granted consultative status, it must provide reciprocal privileges to the IMO.44 Rights Consultative status may be granted on a permanent basis or on a provisional basis for up to four years,45 with two goals: first, provide a means for the IMO to gain information or advice from NGIOs with special knowledge; and second, enable NGIOs that are “representing large groups whose activities have an important and direct bearing” on the IMO’s work “to express their points of view.”46 Consultative status means that an NGIO may:

• Receive agendas for sessions of the IMO Assembly or any of its subentities; • Following appropriate consultation with the Secretary-General, submit written statements on agenda items; and Receive resolutions adopted by the Assembly and, at the Secretary-General’s • discretion, recommendations made by the Council and sub-entities.

The NGIO may also have an observer attend Assembly meetings and, if invited by the Secretary-General, those of sub-entities. If invited by the Chair and approved by the body, the observer can speak “on any item of the agenda of special interest,” but the observer does not have voting rights.47 b Convention on Biological Diversity The Convention on Biological Diversity (CBD) was established in 1992 to conserve biological diversity, the sustainable use of biodiversity and the fair and equitable sharing of benefits of the use of genetic resources.48 With 43  Ibid., Rule 10. 44  Ibid., Rule 8. 45  IMO, Rules and Guidelines for Consultative Status Of Non-Governmental International Organizations with the International Maritime Organization, Res. A.31(II), 13 April 1961, as amended 1985, 2001, and 2013, Rule 1. 46  Ibid., Rule 2. 47  Ibid., Rules 6–7. 48  United Nations Convention on Biological Diversity, 1760 UNTS 79, 5 June 1992, entry into force 29 December 1993, Article 1.

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widespread acceptance—there are currently 193 Contracting Parties—the program of work under the CBD has grown over the years to encompass a range of activities. Roles There is only one form of membership to CBD, which is that of a Contracting Party. Beyond the State parties, other entities may participate as observers. Currently, all of the Arctic nations except the United States are parties to the Convention. Any Contracting Party may propose an item for the agenda of an ordinary meeting.49 When it comes to decision-making, each Contracting Party is entitled to cast a single vote. The only additional parties that may vote are regional economic integration organizations (for example, the European Union), within areas of competence, unless their member states have already exercised their votes.50 Any entity qualified in relevant fields may request admission as an observer at a meeting of the parties, regardless of whether it is governmental or non­ governmental. The applicant entity must notify the CBD Secretariat of its desire to attend the meeting, and may subsequently attend unless one-third of the Contracting Parties object.51 Similarly, “observers may, upon invitation of the President [of the Contracting Parties], participate [in meetings] without the right to vote in the proceedings . . . unless at least one third of the Parties present . . . object.”52 The Secretariat is required to alert all Contracting Parties to the next meeting time and location no less than two months before the meeting; it is also required to notify the UN and its specialized agencies, the IAEA, State nonparties, and any relevantly qualified entity that has expressed desire to be an observer, although there is no specific time requirement by when this must occur.53 Finally, in a less direct form of participation, the CBD Parties have formal agreements in place with 89 partners to further the goals of the Convention.54 The sole Arctic-focused agreement is with GRID-Arendal, which is the UN 49  Rules of Procedure for Meetings of the Conference of the Parties to the Convention on Biological Diversity, Annex to Decision I/1 (1994) and Decision V/20 (2000), Rule 8. 50  CBD, Article 31. 51  CBD, Article 23(5). 52  CBD Rules of Procedure, Rule 6(2), 7(2). 53  CBD Rules of Procedure, Rules 5, 7. 54  For a current list of partnership agreements, see CBD, Partnership Agreements, www.cbd .int/agreements.

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Environment Programme’s Key Polar Centre. GRID-Arendal seeks to support environmental decision making and capacity-building through science-based information.55 The agreement is “to enhance cooperation . . . on issues of common interest relating to the three objectives of the [Convention] and in particular with regard to communication and outreach, tourism and biodiversity and joint activities regarding Arctic biodiversity, as well as the implementation of the strategic plan of the [traditional knowledge] clearing-house mechanism.”56 Rights The Convention emphasizes the rights of indigenous peoples and traditional knowledge in several ways. In general, indigenous peoples are highlighted in conjunction with local communities in the Convention. The preamble notes “the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components.”57 Within the body of the Convention, Contracting Parties are instructed to protect and encourage customary uses that are consistent with sustainable use and conservation.58 In addition, the Contracting Parties are required to facilitate information exchange, including “exchange of results of technical, scientific and socioeconomic research, as well as information on training and surveying programmes, specialized knowledge, indigenous and traditional knowledge as such and in combination with [relevant technology and biotechnology].”59 The key focus of indigenous participation in CBD activities occurs under the framework of Article 8(j). Per this provision, each Contracting Party to CBD is instructed to: [s]ubject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and 55  See GRID-Arendal, About, www.grida.no/about. 56  Memorandum of Understanding between the Secretariat of the Convention on Biological Diversity and GRID-Arendal (2007), Article 1, available at www.cbd.int/doc/agreements/ agmt-grid-2007-10-30-mou-web-en.pdf. 57  CBD, preamble. 58  Ibid., Article 10(c). 59  CBD, Article 17.

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sustainable use of biological diversity and promote their wider ­application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.60 A Working Group on implementation of Article 8(j) was formed and first met in 2000, guided by an Advisory Group/Steering Committee. The two Arctic States with representation on the Committee are Norway and Denmark.61 The Working Group is open to all Contracting Parties to CBD and representatives from indigenous and local communities are “invited to participate fully . . . including in the group’s decision-making.”62 Activities of the Working Group are supported by the CBD Secretariat. The tasks on which the Working Group seek progress span a variety of critical issues relevant to indigenous and local community participation, from strengthening capacity to engage in relevant decision-making, to developing guidance for indigenous and local communities on sustainable use and related incentives, to creating guidelines to help Parties develop laws or policies to implement Article 8(j) and related provisions.63 Among other accomplishments, the Working Group has contributed to the development of voluntary guidelines for the conduct of impact assessments on developments in areas traditionally used by indigenous and local communities, adopted a Code of Ethical Conduct related to respect for indigenous and local communities’ cultural and intellectual heritage, and completed a composite report on status and trends regarding indigenous and local communities knowledge, innovations, and practices in six regions (the Arctic regional report was distributed in 2005).64 The CBD Secretariat developed an associated Traditional Knowledge Information Portal that strives to increase awareness of and access 60  Ibid., Article 8(j). 61  CBD, Programmes: Article 8(j), Advisory Group/Steering Committee Members, www.cbd .int/traditional/list-ac.shtml. 62  CBD, Traditional Knowledge and the Convention on Biological Diversity, www.cbd.int/ traditional/intro.shtml. 63  See CBD Programme of Work on the Implementation of Article 8(j) and Related Provisions of the Convention on Biological Diversity (Decision V/16) (2012), available at www.cbd.int/traditional/programme/programme-8j-en-web.pdf. 64  CBD, Outcomes of Article 8(j), www.cbd.int/traditional/outcomes.shtml; CBD Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity, Composite Report on the Status and Trends Regarding the Knowledge, Innovations and Practices of Indigenous and Local Communities—Regional

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to ­information on traditional knowledge (to be distinguished from traditional knowledge itself) by indigenous and local communities.65 Resources An important development occurred in 2004, when the CBD Contracting Parties passed Decision VII/16. This Decision includes a provision to create a voluntary funding mechanism “to facilitate the participation of indigenous and local communities, giving special priority to those from developing countries and countries with economies in transition and small island developing States in meetings under the Convention.”66 Funds are accepted to be allocated for this purpose from CBD parties as well as other private, intergovernmental, and nongovernmental institutions and entities.67 The primary purpose of these funds is to facilitate participation in Article 8(j) and related provisions activities.68 This process remains the UN’s sole mechanism to fund indigenous people’s participation in CBD activities. c Arctic Council The Arctic Council is an intergovernmental forum that was established in 1996 to facilitate international cooperation and coordination on shared Arctic issues.69 The establishing declaration recognized and incorporated the Arctic Environmental Protection Strategy (AEPS) and its programs,70 which had been created five years prior by the same group of Member states to commit themselves to protecting the Arctic ecosystem.71 The Council undertakes its Report: Arctic, UNEP/CBD/WG8J/4/INF/3 (Dec. 21, 2005), available at arcticcentre.ulap land.fi/docs/BiologicalDiversityintheArctic.pdf. 65  CBD, About the TKIP Portal, www.cbd.int/tk/about.shtml. The TKIP offers a “resource centre, calendar of events, a photo album, indigenous and local community organization postings, electronic conferencing facilities and the opportunity to subscribe to electronic mail-outs. Its aim is to promote awareness and to stimulate dialogue, increase indigenous and local community visibility, facilitate joint work and encourage the exchange of information.” Ibid. 66  CBD, Decision VII/16, para. G(10). Selection criteria for fund recipients were adopted in Decision VIII/5, para. D, Annex. 67  Ibid., Annex(A)(f). 68  Ibid., Annex(A)(h). 69  Arctic Council, Declaration on the Establishment of the Arctic Council (Sept. 19, 1996), Article 1. 70  Ibid., preamble, Article 1, Joint Communique of the Governments of the Arctic Countries. 71  Declaration on the Protection of Arctic Environment, Arctic Environmental Protection Strategy (AEPS), 14 June 1991, at 9, para. 2.1(i).

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activities and research primarily through six working groups, each of which has a chair, management board, and secretariat.72 One of the objectives of the AEPS is “[t]o recognize and, to the extent possible, seek to accommodate the traditional and cultural needs, values and practices of the indigenous peoples as determined by themselves, related to the protection of the Arctic environment.”73 The rights and roles of indigenous peoples are mentioned prominently in the Arctic Council founding documents. The preamble of the establishing declaration affirms “the special relationship and unique contributions to the Arctic of the indigenous people and their communities” and their traditional knowledge, and states the desire “to ensure full consultation with and the full involvement of indigenous people and their communities and other inhabitants of the Arctic in such activities.”74 Roles There are three levels of participant engagement with the Arctic Council: member states, permanent participants, and observers. Eight members comprise the Arctic Council: Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden, and the United States. The members rotate responsibilities for secretarial support services and coordinating and hosting meetings.75 Each Member must designate a Senior Arctic Official to lead coordination and engagement in Council activities, who meet at least twice per year “after consultation with the representatives of the Permanent Participants.”76 Both Members and Permanent Participants can propose cooperative activities for the Council to undertake.77

72  The six working groups are the Arctic Contaminants Action Program (ACAP), Arctic Monitoring and Assessment Programme (AMAP), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR), Protection of the Arctic Marine Environment (PAME), and Sustainable Development Working Group (SDWG). Arctic Council, Working Groups, www.arctic-council.org/index.php/en/ about-us/working-groups. 73  AEPS, at 9, para. 2.1(iii). 74  Arctic Council, Declaration on the Establishment of the Arctic Council, 19 September 1996, 35 ILM 1387, preamble. 75  Ibid., Article 5. 76  Arctic Council Rules of Procedure, adopted Sept. 17–18, 1998, as amended 2013, paras. 21, 25. 77  Ibid., para. 26. The guidelines for project proposals is contained in Annex 1 to the Rules of Procedure.

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In addition to the members, six international organizations have been granted the status of “Permanent Participant.” (See accompanying Table.) The roster includes three indigenous people’s organizations that were invited to be observers to the AEPS.78 As stated in the Arctic declaration, the purpose of this category is “to provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council.”79 Each of the six organizations represents Arctic indigenous peoples: the Arctic Athabaskan Council, Aleut International Association, Gwich’in Council International, Inuit Circumpolar Council, Russian Association of Indigenous Peoples of the North, and Saami Council. Table 13.1 Current permanent participants of the Arctic Council

Aleut International Association

Represents Russian and U.S. Aleut in the Bering Sea region

Arctic Athabaskan Council

Represents Athabaskan member governments in the United States and Canada; founding members represented approximately 32,000 indigenous peoples of Athabaskan descent

Gwich’in Council International

Represents Gwich’in Nation regions in the United States and Canada; founding members represent approximately 9,000 indigenous peoples of Gwich’in descent

Inuit Circumpolar Council

Represents approximately 150,00 Inuit in Greenland (Denmark), Canada, United States, and Russia

Russian Association of Indigenous Peoples of the North

Represents approximately 270,000 indigenous peoples of the North, Siberia, and Far East

Saami Council

Represents Saami member organizations in Finland, Russia, Norway, and Sweden

78  AEPS, at 42. 79  Arctic Council, Declaration on the Establishment, Article 2.

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Other organizations may obtain Permanent Participant status if they represent Arctic indigenous peoples and are composed primarily of Arctic indigenous members representing either (i) one indigenous people that resides in more than a single Arctic nation, or (ii) more than one indigenous people that reside in a single Arctic nation.80 To be considered, an applicant must submit an application no less than 90 days before the Ministerial meeting.81 However, there are never to be more Permanent Participants than members.82 Finally, in addition to members and Permanent Participants, other States and organizations may engage in the Arctic Council as Observers. If the Council decides it can “contribute to its work,” organizations may be global or regional inter- or intra-governmental or nongovernmental.83 There are currently 32 Observers to the Arctic Council, including 12 non-Arctic countries, 9 intergovernmental and interparliamentary organizations, and 11 nongovernmental organizations.84 Observers can only be determined to be able to contribute and accredited by the Council itself, although subsidiary bodies can invite any person or organization that can contribute expertise to participate in any given activity.85 The Council will circulate a list of any entities that have applied for Observer status to all Arctic States and Permanent Participants at least 120 days before a Ministerial meeting.86 If granted, Observer status continues until revoked, although each entity must submit a statement of continued interest every four years.87 Unless the SAOs decide otherwise, Observers can attend any Council meeting or event.88

80  Ibid., Article 2; and Arctic Council, Permanent Participants, www.arctic-council.org/ index.php/en/about-us/permanent-participants. 81  Arctic Council Rules of Procedure, para. 35. 82  Arctic Council, Declaration on the Establishment, Article 2. 83  Arctic Council, Declaration on the Establishment, Article 3. The criteria for admitting observers is contained in the Arctic Council’s Rules of Procedure, Annex 2, para. 6. 84  Arctic Council, Observers, www.arctic-council.org/index.php/en/about-us/arctic-council/ observers. The European Union has also been affirmed as an observer, but a final decision is pending resolution of outstanding concerns. Ibid. 85  Arctic Council Observer Manual for Subsidiary Bodies (2013), sections 4.3, 4.5. 86  Arctic Council Rules of Procedure, Annex 2, para. 1. 87  Ibid., para. 5. 88  Arctic Council Observer Manual for Subsidiary Bodies (2013), sections 4.3, 7.1; Arctic Council Rules of Procedure, para. 37.

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Rights Like the Arctic States, Permanent Participants are able to participate in any Council activities; however, they do not have decision-making rights.89 Each Permanent Participant is required to designate a lead representative for Council activities.90 In terms of helping to set meeting agendas, Permanent Participants (in addition to the Arctic States) are consulted about agenda items for ministerial meetings; after a draft agenda is formally circulated (no less than 90 days before the meeting date, which is set at least six months in advance), both Members and Permanent Participants can suggest additions up until 60 days prior to the meeting. Members alone approve the final agenda at the start of the meeting itself.91 As for Observers, the Council’s Rules of Procedure note that “[t]he primary role of Observers is to observe the work of the Arctic Council.”92 The Council’s 2013 Manual notes that the participation of Observers “has been a valuable feature through their provision of scientific and other expertise, information and financial resources.”93 They are “encouraged to participate . . . primarily in working group meetings and projects.”94 If an Observer wishes to propose a project, it must do so through one of the Arctic States or Permanent Participants.95 Observers cover their own participation costs, although their cost contribution to any projects undertaken is limited to 50 percent.96 The general guidance for meeting logistics is that Members and Permanent Participants will be seated at a main table and Observers will be seated adjacent to it.97 Subsidiary bodies should issue invitations at least 30 days in advance of a meeting, as well as an agenda—Observers may then provide statements or documents at the Chair’s discretion, following Member and Permanent Participant contributions.98 Arctic Council meetings are conducted in English. Any participant may speak another language, and if so, they should provide interpretation into English.99

89  Arctic Council Rules of Procedure, paras. 4–5, 7–8. 90  Ibid., para. 21. 91  Ibid., para. 19. 92  Arctic Council Rules of Procedure, para. 38. 93  Arctic Council Observer Manual for Subsidiary Bodies, section 2. 94  Ibid., sections 3, 6. 95  Arctic Council Rules of Procedure, para. 38. 96  Arctic Council Observer Manual for Subsidiary Bodies, sections 7.5–7.6. 97  Ibid., section 7.3. 98  Ibid., sections 7.1–7.2, 7.4. 99  Arctic Council Rules of Procedure, para. 43.

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Resources The Indigenous Peoples’ Secretariat, originally established by the AEPS, was brought into the Council’s framework in the original charter.100 The purpose of the Secretariat is to facilitate indigenous organizations’ participation in the Council by providing support functions, assisting with the development of proposals related to the Council’s work and presentations in meetings and Working Groups, and enhancing the Permanent Participants’ capacity and ability to fully participate. With a Board composed of a representative from each of the six Permanent Participants and three of the Arctic States, the Secretariat also facilitates and coordinates conversation and activities between the Permanent Participants and both each other and other relevant entities.101 Among its other responsibilities, the Board of the Secretariat seeks to identify long-term sources of supporting funds.102 d Summary This section explored some of the detailed parameters of potential mechanisms for indigenous peoples to participate in international fora. The three entities show the variety of roles, mechanisms, and procedures. Next, the potential implications are discussed. IV

Transforming Forms of Indigenous Engagement

Part II, above, highlighted some of the overarching principles encouraging indigenous peoples’ participation in decision-making that affects their interests. ILO 169 and UNDRIP have not been adopted or endorsed by all Arctic nations, and so the instruments do not bind operation of regional management structures; but they suggest a trajectory for international indigenous participation. Part III, above, then explored the specific mechanisms that several prominent Arctic management fora use for participation of entities other than traditional States. In short, how does participation operate in practice and, ultimately, affect forum decision-making. Although it is tempting to focus on 100  Arctic Council, Declaration on the Establishment, Article 8. 101  Arctic Council Indigenous Peoples’ Secretariat, Terms of Reference, adopted by the IPS Board 3 November 2001 (as amended 21 November 2002, 5 April 2005), Articles 1–4; Arctic Council Indigenous Peoples’ Secretariat, Rules of Procedure, adopted by the IPS Board 3 November 2001 (as amended 21 November 2002, 5 April 2005), Article 5. 102  Arctic Council Indigenous Peoples’ Secretariat, Rules of Procedure, Article 13.

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the classification of participatory roles—for example, does the role include voting rights—the details of how, when, and in what way various participants can engage in fora activities can be just as important. For example, some parameters that affect the nature of participatory rights include:103

· What is the scale of participation—do the participants develop, review, · · · ·

comment on, or otherwise affect deliberations, draft documents, or decisions? Which levels do participants engage at—primary body, working groups, committees, and/or other? Are there barriers to entry for non-State participants, such as geographic, categorical, or other requirements? Are there resources available to support non-State participants, such as financial support for travel, translation of proceedings, or other? What are the requirements for ongoing participation, such as reporting, review, or eligibility renewal requirements?

In general, the systems explored in Part III illustrate the fluctuation in the roles that non-State parties—specifically indigenous peoples or broader categories—have in international fora. In some cases indigenous peoples hold observer status, while in others they hold consultative status; in some they are recognized as permanent participants while in others they must renew requests to engage on a per-meeting or per-interval basis. These roles broadly define how and when the parties can engage. Digging in to particulars, it is important not to overlook the granular aspects of involvement. The practical details of participation define the nature and extent of involvement in deliberations and decision making. The systems reviewed above differ significantly in these aspects, such as allowing indigenous peoples and/or non-State participants to review or comment on draft agendas, to engage in working group and/or full-body activities, or to actively participate (e.g., provide comments) in meetings. Only some systems provide resources to assist with the participation of non-State parties. Eligibility and membership parameters vary between entities in scope, requirements, and duration.

103  For exploration of similar elements at the U.S. national level, see the work of the Environmental Law Institute Ocean Program on Alaska Native engagement in offshore decision-making in the Arctic, available at www.eli-ocean.org/Arctic.

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In short, the examples explored in this chapter illustrate the range in methods international fora use to guide participation in their proceedings. The parameters relevant to indigenous peoples’ participation vary significantly. On the one hand, the variability in participation across institutions provides a laboratory for determining the advantages and disadvantages of various structures and processes. The lack of uniformity may ultimately decrease the efficacy of the participatory model by fragmenting involvement, however, creating a complex network of parameters and guidance, and only sometimes providing resource support. Timo Koivurova and Leena Heinämäki highlight the tension of the current framework of indigenous participation in international systems.104 In general, they suggest increasing the use of soft law instruments created in the model of the Arctic Council as a pathway for increasing indigenous involvement in norm-making. They note that, over time, this approach also “might challenge the current anomaly that indigenous peoples participate as NGOs to international treaty-making processes and thus possibly accommodate indigenous peoples as peoples with more powers than NGOs but fewer than states”; international law could develop “a more nuanced solution to the problem of international representation of indigenous peoples.”105 The examples in this chapter provide complementary data to these conclusions. The indigenous peoples of the Arctic have unique knowledge, unique rights, and unique roles in the oversight, stewardship, and use of Arctic resources. They are not State actors, nor are they simply interested members of the public or required to form a registered nongovernmental organization. Yet often the role of indigenous peoples in international decision making bodies is pushed into one of these categories. The varying and sometimes awkward-fitting results suggest the merits of establishing new ways of approaching indigenous participation in international management.

104  Koivurova and Heinämäki, “The participation of indigenous peoples,” at 106. 105  Ibid.

Chapter 14

China’s Emerging Arctic Strategy and the Framework of Arctic Governance Jun Zhao The Arctic is a relatively “closed” environment surrounded by five coastal states; relations among these countries pose a diplomatic challenge to China’s more conservative and traditional perspective.1 Because of intensifying global warming, the significance of an ice-free Arctic environment has been gradually realized. At least two consequences could be expected in an Arctic with less ice. First, the seabed-rich in natural resources will be more accessible, exposing untapped resources and making exploitation easier. Second, a reduction of sea ice makes navigable sea routes more navigable. The most convenient sea lane is the one historically referred to as “Northwest Passage,” which shortens the voyage between the Pacific Ocean and the Atlantic Ocean by 9,000 kilometers.2 Based on rapid changes of natural and political environments initiated both domestically and internationally, Arctic countries have updated their Arctic polices for the region to better cope with new relationships, and to gain advantage in geopolitical competition.3 Changes in the Arctic environment have sparked a chain reaction in the diplomacy among various states. From one perspective, the economic and geopolitical connections between Arctic states and those in other regions in the world have been strengthened. On the other hand, however, the rush for “ownership” over the resources in * Professor, Guanghua Law School, Zhejiang University. I thank Prof. James Kraska, Prof. Tim Webster, Prof. Virginia Ho, Mr. Beau Lefler and Mr. Jim Gao for their insightful comments across several drafts, and I thank Santiago Diaz Gutierrez for research assistance. 1  Yue Dong, “Trends of the Arctic Legal Order and New Horizons for China’s Rights in the Arctic” (beiji falv zhixu zouxiang yu zhongguo beiji quanyi xinshiye), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 6 (2012), 1. 2  Michael A. Becker, International Law of the Sea, International Law 42 (2008), 797, 799; see also Mark Jarashow et al., “UNCLOS and the Arctic: The Path of Least Resistance,” Fordham International Law Journal 30 (2007), 1587, 1592. 3  Junyuan Lu, “On the Common Goal of North Pole Policies of the North Polar Countries” (beiji guojia xin beiji zhengce de gongtong quxiang ji duice sikao), Journal of University of International Relations (Guoji Guanxi Xueyuan Xuebao) 3 (2011), 64.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004299610_016

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vast areas of the Arctic Ocean is becoming fierce.4 Accordingly, geopolitical ­developments5 may help better inform governance over the Arctic. The current situation, however, illustrates the need to establish a reasonable framework in order to resolve problems before they grow. Unfortunately, there is currently no Arctic Treaty to provide overall governance of Arctic affairs, and such a treaty is not practicable in the short term.6 Mechanisms such as the 1982 United Nations Convention on the Law of the Sea (UNCLOS),7 Svalbard Treaty,8 and various other bilateral agreements, already establish a legal basis for the actions of the sovereign coastal states in the Arctic.9 These instruments hold intrinsic defects, however, that 4  Nevertheless, there are certain rules (such as Articles 76 and 74/83 and the CLCS guidelines) that are relatively effective. Baozhi Cheng, “On Legal and Political Construction and Consummation of Arctic Governance” (beiji zhili jizhi de goujian yu wanshan: falv yu zhengce cengmian de sikao), International Review (Guoji Guancha) 4 (2011), 2. 5  Some scholars have argued that geopolitical theory has played a dominant role in Arctic affairs. The conduct of America, Russia, and Canada in the Arctic region are also under great influence of this theory. During the post-cold-war period, despite of the incremental influence of governance theory, it is still subject to the control of geopolitical theory. The author believed that the existence of geopolitics as practical basis for Arctic governance at president, while its continuation and expansion as external motivation for development of governance mechanisms. Jiang Ye, “On Double Effect of Geopolitical and Governance Theories on Arctic Affairs” (shilun beiji shiwu zhong diyuan zhengzhi lilun yu zhili lilun de shuangchong yingxiang), International Review (Guoji Guancha) 2 (2013), 32–38. 6  Certain scholars believe that it is unwise to apply the Antarctic model to the situation of Arctic due to various differences between the Antarctic and Arctic. For example, Antarctica is a single continent that has no permanent human inhabitants, and, and largely thanks to existing international agreement, no industrial or commercial activities; the Arctic is quite different in these respects. Moreover, Antarctica is a continent, while the Arctic is an ocean. Countries are interested in using the Arctic for navigation, mining and fishing, while countries wanted to prevent these uses in Antarctica. See, for example, Stefán Þór Hauksson, “A Legally Binding Regime for the Arctic,” available at skemman.is/stream/get/1946/3090/ 8142/1/prentun_fixed.pdf‎. 7  United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, available via http://www.un.org/depts/los/convention_agreements/convention_overview_convention .htm. 8   See “Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen signed in Paris 9th February 1920,” http://www.syssel mannen.no/Documents/Sysselmannen_dok/English/Legacy/The_Svalbard_Treaty_9ssFy .pdf?epslanguage=en (last modified September 17, 2013). 9  See Gang Chen, “China’s Emerging Arctic Strategy,” The Polar Journal 2:2 (2012): 7–8, DOI: 10.1080/2154896X.2012.735039; David Curtis Wright, “The Dragon Eyes the Top of

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render them inefficient in resolving disputes and fostering cooperation among member and non-member states. Therefore, the existing mechanisms should be consolidated and reinforced in order to establish a more powerful and systemic governance over the Arctic.10 Within this context, the construction and consummation of a new approach for dealing with governance problems has become increasingly necessary. The issue also has received wide public concern from international community. In general, the existing governance mechanism offers institutional arrangements for coping with challenges. What needs more attention, however, is how to satisfy the need for new governance in light of profound environmental changes manifest in the Arctic region. Some scholars argue that Arctic countries must hold an open attitude due to the international nature of Arctic issues. Effective governance of Arctic affairs must welcome the participation of all interested parties.11 With the effect of geopolitics, however, even the Arctic Council,12 which is considered the most effective governance mechanism in the region so far, often displays its preference for exclusivity.13 The effective promotion of Arctic governance needs to break the rigid and closed governance mechanism to establish an open framework to better balance the interests of related parties and absorb all beneficial elements. China was officially approved by the Arctic Council to be an observer state on May 15th, 2013.14 This positive development on a special issue of global governance may well help to alleviate and manage the larger confrontations relating

the World: Arctic Policy Debate and Discussion in China,” Naval War College Press, China Maritime Study no. 8 (2011), 31. 10  Kai Sun et al., “Changes of Arctic Governance System and China’s Strategy of Participation” (beiji zhili jizhi bianqian ji zhongguo de canyu zhanlue yanjiu), Forum of World Economy and Politics (Shijie Jingji Yu Zhengzhi Luntan) 2 (2012): 119–120. 11  Ibid. 12  The Arctic Council was established in 1996 as an intergovernmental forum to promote cooperation, coordination and interaction among Arctic states on sustainable development and environmental protections in the Arctic. 13  Jiang Ye, “On Double Effect of Geopolitical and Governance Theories on Arctic Affairs” (shilun beiji shiwu zhong diyuan zhengzhi lilun yu zhili lilun de shuangchong yingxiang), International Review (Guoji Guancha) 2 (2013), 38. 14   Richard Milne, “China Wins Observer Status in Arctic Council,” Financial Times, May 15, 2013, http://www.ft.com/cms/s/0/b665723c-bd3e-11e2-890a-00144feab7de.html# axzz2v0byIwHi.

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to uses of the global commons.15 By including China as an observer, the Arctic Council, it may be argued, was strengthened.16 Accordingly, it is worth studying how China might effectively participate in Arctic governance and promote constructive solutions to the new challenges. I

Overview of Arctic Region Governance

The establishment and development of Arctic governance has emerged from a long process. Since the sixteenth century, the confirmation of the sovereignty of land territory around the Arctic Ocean followed colonization in North America and territorial expansion in the Arctic Region, which lead to increasing prosperity in exploration and research. In the twentieth century, attempts to establish systems of Arctic governance started, and the establishment and study of governance mechanisms has been accelerated by changes in the international political system, global development, and changes in the natural environment of the Arctic.17 A Existing Governance Mechanisms Although progress was made on research and establishment of its governance mechanism, as one of the still “undefined” areas in the world, a complete and widely accepted treaty system has not yet been formed in the Arctic region. The existing international laws and regulations are all specific, and together they lack a holistic approach.18 Theories and practices on Arctic governance were formed only recently, and these also lack a global perspective. There has not been a governance arrangement established specifically for the Arctic region, though this does not mean international governance in the region is an empty slate. A handful of relevant international institutional arrangements c­ oncerning the Arctic have emerged, and they include UNCLOS, the 15   “The Arctic Council Approved Six Countries Including China, Japan, India, and South Korea to be Formal Observers,” Sina.com, June 18, 2013, http://sh.sina.com.cn/ news/g/2013-05-16/134747367.html. 16  See, for example, Steven Lee Myers, “Arctic Council Adds Six Members, Including china,” New York Times, May 15, 2013. 17  Yuning Sun, “On Model of Arctic Governance” (beiji zhili moshi yanjiu), PhD Diss. of China Foreign Affairs University (Waijiao Xueyuan Boshi Lunwen) (2009), 29–31. 18  Sisi Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region” ( jinbeiji jizhi de tichu yu zhongguo canyu beiji), Jounal of Social Sciences (Shehui Kexue) 10 (2012), 28.

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Convention on Biological Diversity,19 and the UN Framework Convention on Climate Change.20 Because of close geographical proximity, countries around the Arctic Circle21 were the first to explore and implement Arctic governance. Initially, Canada and Russia put forward the “sector principal,”22 and they pursued policies built around their claims over the region. Such unilateral actions, however, encountered opposition from other Arctic countries. Scholar Li Zhenfu points out, the sector approach only divided the Arctic diplomatic community that international mechanisms were intended to establish.23 Some countries around the Arctic Circle advocated the establishment of co-management, including such as mechanisms centered on “Five Arctic Countries” and “Eight Arctic Countries.”24 Treating the Arctic region as the state-owned private property of those countries around the Arctic Circle, however, was also challenged by the international community and among other Arctic states.25 Therefore, despite the unilateral and multilateral attempts to 19  See Convention on Biological Diversity. Rio de Janeiro, 5 June 1992, available at https:// treaties.un.org/doc/Treaties/1992/06/19920605%2008-44%20PM/Ch_XXVII_08p.pdf. 20  See United Nations Framework Convention on Climate Change, available at https:// unfccc.int/files/essential_background/background_publications_htmlpdf/application/ pdf/conveng.pdf. 21  There are overall eight Arctic countries, including five littoral countries, namely Russia, Canada, the United States (Alaska), Denmark (Greenland) and Norway (Svalbard), and three other countries whose partial territory is within the Arctic Circle—Sweden, Finland and Iceland. 22  Sector Principal was first put forward by Canadian Senator P. Poirier in the year of 1907, and traces longitudinal parallels from borders of countries adjacent to the Arctic Circle to the North Pole, assigning the sectors so formed to the neighboring nations. Sovereign claims of Arctic islands on the Sector Principle have been proposed by both Canada and Russia, while the principal was solely based on adjacency and cannot be applied to areas such as high seas. Moreover, as long as there are sovereign claims against the narrow bar area from aforesaid borders to the North Pole, the Sector Principle should not be accepted in the Arctic region, and has long been denied legal force. See Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region,” 28–29. See also Ian Brownlie, Principles of Public International Law, trans. Lingliang Zeng et al. (Beijing: Law Press, 2003), 155–156. 23  Wright, “The Dragon Eyes the Top of the World,” 18. 24  The Arctic Eight (A8) refers to all of those states that have land or water territory in the Arctic: Russia, Canada, the United States, Denmark (Greenland), Iceland, Norway, Finland and Sweden. The Arctic Five (A5) are the states that have a shoreline on the Arctic Ocean: Russia, Canada, Norway, the United States, and Denmark (Greenland). Iceland has a very small stretch of coastline along the Arctic, but is not normally considered part of the A5. 25  Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region,” 28–29.

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strengthen governance, a greater Arctic political and legal structure with wide acceptance has not been formed. The international community pursued a multilayered practice for establishing feasible Arctic governance. Since the 1970s, states have depended more on multilateral legal systems. As Arctic environmental problems and economic interests became more apparent, a cooperative framework is emerging. The framework includes bilateral and multilateral international conventions ratified by the international community, including countries around the Arctic, international institutions and meetings, and a multilevel mechanism of Arctic environmental management, with the participation of multiple subjects.26 These existing mechanisms may be categorized in terms of three levels: global, regional, and bilateral arrangements. The first level incorporates global arrangements. For example, UNCLOS was not drafted specifically for the Arctic Ocean, but due to its general applicability, the Arctic Ocean falls within the geographic scope of the convention.27 Although Arctic Ocean waters are covered by ice, their nature as one of the seas of the world doesn’t change. Therefore, the Arctic Ocean, as a part of the global system of oceans, should be regarded as subject to all generallevel international oceans law. Thus, apart from the UNCLOS, International Maritime Organization (IMO) conventions on shipping navigation and ocean environmental pollution that reflect internationally accepted standards also apply in the Arctic Ocean. Meanwhile, Member States of the IMO have nearly completed guidelines for shipping in polar waters.28 These rules are recognized as soft law, but it is likely that they will become legally binding.29 The second level incorporates multilateral regional arrangements. For example, the 1920 Svalbard Treaty confirms Norway’s sovereignty of the Svalbard archipelago, and it stipulates rights and obligations of other countries in the

26  Yichou Han, “On International Law Governance in the Arctic Region” (lun beiji diqu zhi guojifa zhili), Master’s Thesis of East China University of Political Science and Law (Huadong Zhengfa Daxue Shuoshi Xuewei Lunwen) (2010), 10. 27  Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 3. 28  Øystein Jensen, “The IMO Guidelines for Ships Operating in Arctic Ice-covered Waters: From Voluntary to Mandatory Tool for Navigation Safety and Environmental Protection?,” FNI Report 2/2007 (Lysaker: Fridtjof Nansen Institute, March 2007), available at www.fni .no/doc&pdf/FNI-R0207.pdf‎. 29  Qiong Wu, “On Issues of International Laws in the Arctic Region” (beiji haiyu de guoji falv wenti yanjiu), PhD Diss. of East China University of Political Science and Law (Huadong Zhengfa Daxue Boshi Lunwen) (2010), 11–13.

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islands.30 There are about 40 States party, including both Arctic countries and non-Arctic countries. Openness in participation, reasonable provisions and shared interests make the Svalbard Treaty a model for solving sovereignty disputes. After the establishment of the agreement, regional multilateral cooperation in the Arctic region stagnated because of a lack of territorial disputes, a lack of issues of sufficient weight to compel multilateral action, and a lack of motivation of interests. It was not until 1973, when five Arctic countries signed the International Agreement on the Conservation of Polar Bears, that multilateral cooperation in the region was placed high on the agenda once again. The Polar Bear agreement was the first legally binding regional convention reached by the Arctic countries.31 The treaty is a seminal agreement among the multilateral and global mechanisms that form the international system in the Arctic.32 The third encompasses arrangements on a bilateral level, which includes the 1988 Arctic Cooperation Agreement between the United States and Canada,33 and the 1994 Agreement between the Government of the United States and the Russian Federation on Prevention of Environmental Pollution in the Arctic Region.34 Historically, bilateral cooperation among countries in the Arctic region has a longer history and broader scope than multilateral cooperation on environment, Arctic agreements extend from setting boundaries, ­fisheries 30  Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 3. 31  Wu, “On Issues of International Laws in the Arctic Region,” 14–15. It should be emphasized that the statement that “the International Agreement on Conservation of Polar Bears and Their Habitat is currently the only one legally binding regional convention,” was accurate before 2010. Since May 12, 2011, however, the Arctic States have adopted the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic. The instrument has been signed by countries in Arctic Council, and is also a binding instrument, as is the 2013 agreement on oil pollution preparedness and cooperation. 32  Some scholars believed and illustrated that geographically, international systems in the Arctic region could be divided in dichotomous ways, including a global system with general application and regional system which is restricted to be applied in the Arctic region. See Chuanxing Wang, “On the Characteristics of Non-Traditional Security of Regional International Institutions in the Arctic Region—A Case Study of the Arctic Council” (lun beiji diqu quyuxing guoji zhidu de feichuantong anquan texing, yi beiji lishihui weili), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 3 (2011), 1–6. 33  Canada and the United States Agreement on Arctic Cooperation, January 11, 1988, available at https://treaties.un.org/doc/publication/unts/volume 1852/volume-1852-i-31529english.pdf. 34   Baozhi Cheng, “Humble Opinions on Construction of Arctic Pole Management Mechanism and China’s Interests” (chuyi beiji zhili jizhi de guojian yu zhongguo quanyi), The Contemporary World (Dangdai Shijie) 10 (2010), 69.

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agreements protecting wild animals and plants, and marine-environment measures, and to military and scientific fields, and beyond.35 Under the background where sovereign disputes are not settled, where global governance is incomplete, and where the scope of multilateral cooperation is limited, bilateral cooperation will still be the focus of Arctic governance. B Defects in Current Governance The existing governance structure provides substantial ability for coping with challenges and embracing opportunities in Arctic governance, but it still remains doubtful if it can satisfy the demand for new governance needs and adapt to rapid changes in Arctic regions. The current political and legal systems lack a way to systematically promote regional development or coordinate disputes and avert confrontation among countries on Arctic resources and sea lanes.36 Specific defects of the existing framework of Arctic governance are set forth below. First, there is a lack of uniformity and comprehensiveness among the existing mechanisms. The existing approach involves international laws on Arctic governance, but they are scattered into separate conventions that are globally applied, and regional treaties on the Arctic region. In other words, the current legal framework on environmental governance of the Arctic region consists of fragmented, immethodical and selective legislation, and international and regional organizations with overlapping power and unclear allocation of function.37 These defects are a consequence of Arctic governance practice under the current system. Legal conflicts on the Arctic environment are indeed the embodiment of persistent problems in the reflection from international laws to Arctic affairs.38 The efficiency of the existing governance mechanism is perhaps subject to reduced efficiency because contradictions among the respective 35  Qiong Wu, “On Arctic Strategies of the United States and Russia and the Developing Trend of International Governance in the Arctic Region” (mei’e de beiji zhanlue ji beiji guoji zhili de fazhan qushi), Peace and Development (Heping yu Fazhan) 5 (2012), 37. 36  Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 3, quoted in Scott G. Borgerson, “Arctic Meltdown,” Foreign Affairs 87(2) (March/April 2008), 63–77. 37  Huirong Liu, “Analysis and Prospects of Legal Path in Arctic Environmental Governance” (beiji huanjing zhili de falv lujing fenxi yu zhanwang), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 2 (2011), 2. 38  Huirong Liu, “A Study on Legal Problems of Arctic Environment from the Perspective of International Law” (guojifa shiyexia de beiji huanjing falv wenti yanjiu), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 3 (2009), 4.

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treaties, domestic laws, international laws, and jurisdictional agencies in the framework of the system might emerge in future as their implementation goes forweard. Second, soft laws without binding consequences limit the effectiveness of existing governance mechanisms. This situation is in contrast to Antarctica, where hard laws are the main body of its international management system. Consequently, the Arctic Environmental Protection Strategy (AEPS) only served as a platform for communication among issues relating to the Arctic. Although a high level of cooperation on agreed policies has been achieved by the Arctic Council within the limited areas of policy it has addressed, there is no assurance of enforceability of those policies in the present legal status of the Council.39 The construction of most systems of Arctic governance is based on declarations of member states and international arrangements without binding effect. Therefore, the characteristic of soft law is quite overt.40 Insofar as the Arctic countries hold a conservative attitude toward the establishment and adjustment of Arctic policies, limiting the participation of countries outside the region in Arctic affairs. Relatively flexible soft laws have become popular in the Arctic region.41 While the this type of governance regime can builds consensus, they lack the force of binding effect.42 Third, the general management of the region and arrangement of sovereignty are lacking. In some Arctic countries, the problems of Arctic region are marginal issues on both politics and economy. Combined with the special 39  Wright, “The Dragon Eyes the Top of the World,” 19 (citing Dong Yue, Chen Yitong, and Li Shengcheng, “Soft Law Factors in Administering the Arctic Environment,” 12–13). 40  Kai Sun et al., “Changes of Arctic Governance System and China’s Strategy of Participation,” 123. 41  See Xia Wan, “On the Rising of Soft Laws in International Legal System” (shixi ruanfa zai guojifa zhong de boxing), Foreign Affairs Review (Waijiao Pinglun) 5 (2011), 137. 42  Some scholars believed soft laws like AEPS, with their high level of consensus, build the platform for communication in Arctic environmental governance between Arctic countries and other interested stakeholders. See ibid., 137. Some scholars suggest the importance of soft laws in Arctic governance have distinct advantages. It may be still too early to deny the system of soft laws despite its defects. See Dapeng Wang, “On Soft Law as Regulation of Arctic Issues” (beiji wenti de ruanfa guizhi yanjiu),” Phd Diss. of Dalian Maritime University (Dalian Haishi Daxue Boshi Lunwen) (2012), 77–86. Other scholars demonstrated the weakness of agreement with characteristics of soft laws, such as the lack of binding effect and difficulty to further promote cooperation. Faced with urgent Arctic problems, it became necessary to transition from nonbinding to binding agreements so that the governance needs could be fully satisfied. See Kai Sun et al., “Changes of Arctic Governance System and China’s Strategy of Participation,” 123.

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political environment during the Cold War, the multilateral cooperation in the Arctic lacks political and economic motivation.43 Currently, Arctic governance mainly focuses “low politics,” meaning that the focus rests on issues such as environmental protection and cooperation. The driving force of multilateral cooperation from the Arctic Environmental Protection Strategy to the establishment of the Arctic Council is that environmental problems reflect “low politics.”44 Cooperation based on “low politics” promotes the communication of science and technology. It is helpful in facilitating the achievement of common environmental protection and sustainable development. Due to the lack of political trust and inherent limitations, “low politics” cannot realize greater military and security cooperation, let alone achieve trust on vital matters of basic strategic consensus.45 This approach is not conducive to the long-term and in-depth development of Arctic governance. II

Contradictions in Arctic Governance

Competition in the Arctic region underlines two trends of Arctic development: the Arctic is undergoing rapid changes with the speed unable to be foreseen. For one part, the ice sheet is melting more quickly than anticipated just a few years ago. Second, A large number of dangerous political, legal and technical divergences can potentially threaten the future order of this most vulnerable yet vibrant area.46 These two trends are manifest in that the governance the Arctic faces multiple contradictions. The Arctic is faced with a series of important and realistic threats.

43  Qiong Wu, “On Arctic Strategies of Russia and the United States and the Developing Trend of International Governance in the Arctic Region,” 38. 44  Timo Koivurova, “Limits and Possibilities of the Arctic Council in a Rapidly Changing Scene of Arctic Governance,” Polar Record 46.2 (2010), 146–156. 45  Kai Sun et al., “Changes of Arctic Governance System and China’s Strategy of Participation,” 122–123. 46  Zhixiong Huang, “Analyses and Thoughts about Arctic under the Perspective of the International Law” (beiji wenti de guojifa fenxi he sikao), International Forum (Guoji Luntan) 6 (2009), 11, as quoted in “To Whom does Arctic Oil Belong?” (beiji shiyou shuyu shui), http://www.ftchinese.com.

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The contradictions in Arctic Governance have been precisely categorized and summed up by Cheng Baozhi in the following ways.47 A Practical Contradictions There are practical contradictions among resource exploitation, ecological protection and social construction. The Arctic region is rich in natural resources. About 22 percent of the world’s undiscovered, but recoverable oil and natural gas is believed to be within the Arctic region, as well as a large amount of precious metals.48 Global warming, ice melting, and the development of new technology, means that the cost of resource development is plunging, making extraction easier.49 Two of the greatest problems are the protection of fragile ecological environment and the enhancement of social construction. China has taken steps to ensure its position as a diplomatic power in the Arctic. Among other things, it has invested approximately $300 million to build a small icebreaker ship to accompany the Xuelong, China’s primary icebreaking ship.50 The Polar Research Institute of China will establish the China-Nordic Arctic Research Center in conjunction with the Iceland Center for Research, Norwegian Polar Institute, and the Nordic Institute of Asian Studies in Denmark.51 Though China is an observer in the Arctic Council, its support of regional scientific research in the Arctic gives it a greater voice through its allied permanent members.52 Different countries and international organizations have their own interests and values concerning development in the Arctic region. The divergence among states cannot be resolved in the short term, and the prospects for further cooperation are quite limited, except in the field of environmental protection.

47   See Baozhi Cheng, “On Three Contradictions in Current Arctic Governance and China’s Proper Reaction” (dangqian beiji zhili de sanda maodun ji zhongguo yingdui), Contemporary World (Dangdai Shijie) (2012). 48  Mamdouh G. Salameh, “China Eyes Arctic Access & Resources,” USAEE Working Paper No. 2142182 (September 5, 2012), 8. 49  Pan Zhengxiang et al., “Humble Opinions on China’s Arctic Strategy” (woguo weiji zhanlue qianjian), Journal of Chongqing Institute of Socialism (Chongqing Shehuizhuyi Xueyuan Xuebao) 5 (2011), 72. 50  Wright, “The Dragon Eyes the Top of the World,” 32. 51   “China to Build Research Center for Arctic Region,” China Arctic and Antarctic Administration, June 13, 2013, http://www.chinare.gov.cn/en/index.html?pid=news&sub= nat&id=91. 52  Ibid.

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Disorder in the Arctic region highlights the danger of a “tragedy of the commons,”53 which illustrates contradictions among resource exploitation, ecological protection, and social development. China, with one-fifth of the world’s population, would greatly benefit from the resources that could potentially be exploited in the Arctic.54 Rear Admiral Yin Zhuo has linked China’s Arctic scientific initiatives to China’s need for oil, highlighting the very realist—and contradictory—motives of China in the Arctic.55 To alleviate and finally solve this core contradiction the sustainable use of natural resources must be pursued. Second, the organic combination of ecological protection and social development must be confirmed. The public has the right to participate in decisionmaking and management of the Arctic ecosystem.56 What should not be ignored is that those who should be considered in the decision-making include the traditional knowledge and skills of the residents of the Arctic, especially aboriginal peoples—a consideration that has already been conceded and given attention in implementation schemes by most of the Council’s member states.57 B Legal Contradictions Legal contradictions refer to the contradictions between double appeals of sovereignty and human common property. As Arctic territory is mostly surrounded by water and ice, and the lands belong to different countries, the sovereign claims of these states are centered on establishing sovereign rights over an extended continental shelf. In the twenty-first century, resource development has become especially important due to rapid development of the global 53  Yichou Han, “On the United Nations and International Law Governance in the Arctic Region” (lun lianheguo yu beiji diqu zhi guojifa zhili), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 2 (2011), 6. The “tragedy of the commons” refers to the depletion of a shared resource by individuals, acting independently and rationally according to each individual’s self-interest and with appearance of free riders, despite their understanding that depleting the common resource is contrary to the group’s longterm best interests. Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968), 1243–1248. 54  See Linda Jakobson and Jingchao Peng, China’s Arctic Aspirations, Stockholm International Peace Research Institute, Policy Paper No. 34 (November 2012). 55  Admiral Zhou is quoted in Wright, “The Dragon Eyes the Top of the World,” 2. 56  Cheng, “On Three Contradictions in Current Arctic Governance and China’s Proper Reaction,” 71. 57  Baozhi Cheng, “Probing into the Arctic Governance: Chinese Scholars’ Perspective” (beiji zhili lungang: zhongguo xuezhe de shijiao), Pacific Jounal (Taipingyang Xuebao) 10 (2012), 65.

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economy, increasing need for natural resources, changes in the natural environment in the region, and the advancement of science and technology. As more countries pay attention to Arctic resource development, the prospect for disputes also increases. Since there is not a comprehensive law for the Arctic region, disputes about Arctic Ocean resources may be solved through elevation to the status of hard law of the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond Areas of National Jurisdiction58 (“the Declaration”) and through development of broader interpretations of UNCLOS.59 The Law of the Sea, as suggested by scholar Mei Hong, already establishes a platform of marine environmental law among nation, with consequent reduction of conflicts and promotion of greater cooperation among nations, including China.60 The Declaration expounds that the ocean floor and subsoil beyond national jurisdiction, and associated resources located there, are the common heritage of all mankind. The bottom of the Arctic Ocean is covered by the scope of the Declaration. There are conflicting strands in the directions taken by various nations as to the balance of sovereign rights and the desiderata of prioritizing international objectives such as are stated as aspirational objectives in the Delcaration. The Law of the Sea offers multiple optional standards, with controversies arising from claims to the continental shelf beyond two hundred nautical miles.61 This fact motivates states around the Arctic Ocean to expand their national claims in order to compete for more resources and gain strategic position.62 Neither the ICJ nor the ITLOS has as yet ruled in its jurisprudence on disputed boundaries claimed beyond two hundred nautical miles. Uncertainty 58  U N Doc. A/RES/25/2749, December 12, 1970. 59  Lijiu Wang, “Trends of Struggling for Sovereignty Over the Arctic,” (beibingyang zhuquan zhizheng de qushi), Contemporary Internal Relations (Dangdai Guoji Guanxi), 10 (2007), 18. 60  Wright, “The Dragon Eyes the Top of the World,” 14. 61  Article 76 of United Nations Convention on the Law of the Sea specifies that:  “The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 10 nautical miles from the 2,500 meter isobath, which is a line connecting the depth of 2,500 metres.” For the options caused by “or” in this article, many contradictions are raised. See Hui Wu, “On the Fight over the North Pole—A Study from the Perspective of International Law” (beiji zhengduozhan de guojifa fenxi), Journal of University of International Relations (Guoji Guanxi Xueyuan Xuebao) 5 (2007), 36–42. 62  Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 4.

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as to legal boundaries in the Arctic allows countries within around the Arctic Ocean region to put forward sovereign claims, while the area seen as a commons in the framework of the Declaration shrinks accordingly. International policy initiatives and judicial precedents are needed in order to obtain clarification of the regions’s regime.63 C Systemic Contradictions Systemic contradictions are those between rapid exploration in the Arctic and the lag in governance. As changes of the natural environment occur in the Arctic, economic and business activities become gradually more popular. Environmental and technological obstacles do not lead to indifference to polar resources, but the political competition over their control will surpass economic and technological elements. The core problem of politics is the allocation of interests, and political elements will influence the process of exploration for resources.64 The development of Arctic governance to date is not sufficient to assure rapid development of exploration and its huge economic potential. The existing political and legal mechanisms are scattered and fragmented—lacking uniformity, cooperativeness, and necessary binding and executive forces. In general, changes and adjustment of the current Arctic governance framework are lagging behind the rapid pace of new exploration in Arctic.65 III

The Improvement of Arctic Governance

A Integration and Reinforcement The integration and reinforcement of governance are the desired goals; by contrast, the current governance mechanisms are not binding, and they lack uniformity and are not open-ended as to “cooperativeness” with non-members of the Arctic Council. Although in the near future, it is unlikely we will witness formation of a comprehensive governance mechanism based on complete and legally binding treaties, there has in fact already been fashioned a series of complicated governance arrangements in this area. The various management 63  Jing Gui, “Uncertain factors in the delimitation of the outer continental shelf and its international practice in the Arctic” (waidalujia huajie zhong de buqueding yinsu jiqi zai beiji de guoji shijian), China Ocean Law Review 5 (2013), 115–116. 64  Peng Shen, “On Developmental Policy of the United States on Polar Resources” (meiguo de jidi ziyuan kaifa zhengce kaocha) 1 (2012), 100. 65  Cheng, “On Three Contradictions in Current Arctic Governance,” 72.

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agencies and organizations should work and support each other in forming a more integrated system of governance. They should hold a common management attitude, making the overall governance effect greater than the sum of that of different agencies and organizations.66 The AEPS and the Arctic Council, for example, play a role as consultation platforms building consensus in the governance of Arctic environment, but their functional limitations and lack of enforcement guarantees cannot be ignored. The AEPS contains environmental protection plans that are preventive specifications, all of which share the problem of leaving unspoken how to guarantee their terms by compelling force. The Arctic Council, as the largest intergovernmental institutions does not control resources, and has no rights to constrain the members.67 The reinforcement of the current governance mechanisms and regime structures becomes an desirable choice in a context, as now, in which binding regional and multilateral treaties on Arctic environmental governance could not be expected in short term. Ultimately, the role of United Nations, as the most influential international organization, should be seen as the crux of Arctic governance. The Antarctic management mode in effect is a unique mechanism for limiting the role that the the UN can take in the management of this place without a population. Only if the Arctic agreement and consensus become part of the system of the United Nations could the Arctic problem be thoroughly solved.68 Thus one prominent Chinese scholar has contended: “Main organs of the United Nations, such as the Security Council, the International Court of Justice, UNEP (Environment Programme), Commission on the Limits of the Continental Shelf, and International Maritime Organization, etc. could provide a sustainable platform for the confirmation of legal status of the Arctic and the allocation of resources.”69

66   Humrich and Wolf, “From Meltdown to Showdown? Challenges and Options for Governance in the Arctic.” 67  Yue Dong et al., “AEPS, Soft Law and the Arctic Environmental Governance” (beiji huanjing zhili zhong de ruanfa yinsu: yi beiji huanjing baohu zhanlue weili), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 1 (2010), 21. 68  Yichou Han, “On the United Nations and International Law Governance in the Arctic Region,” 8. 69  Yichou Han, “On International Law Governance in the Arctic Region,” 10. See also Yichou Han, “On the United Nations and International Law Governance in the Arctic Region,” 9–12.

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B Innovations on the Arctic Governance To more effectively govern the Arctic region, in the consolidation and strengthening of the existing mechanisms, the governance mechanism should be innovative and adaptable. The main pattern of contemporary Arctic self-governance is collective practice, and its main manifestation is the multilevel arrangement of Arctic countries, so that the coordination mechanism of the Arctic countries and the Arctic Council are the manifestation of self-governance. In addition, bilateral practice is possible as a component in the process of self-governance, with the most important current example being the 2010 Treaty of Russia-Norway Maritime Delimitation in Arctic Area.70 Introduction and development of an integrated Arctic governance mechanism need not abandon the existing pattern of collective practice. Historically, construction of an Arctic governance mechanism was based on agreement among countries around the region, and the process excluded non-Arctic countries. So far, the Arctic has basically formed three governance systems, including a “kernel” that consists of five states with shorelines in the Arctic Ocean, an Arctic core (the Arctic Council) and states characterized as a periphery, such as observers of the Arctic Council and the broader international community. The Arctic Council offers a platform for international cooperation in the Arctic region, but it also creates a bottleneck that impedes further cooperation.71 Non-Arctic countries, of course, may still claim the right to participate in the construction of Arctic governance. The Arctic is closely connected to the lives of people near it, and all changes in the Arctic have great influence on them. The current mechanism, however, largely excludes the participation of nonArctic countries, with China the prime example, and therefore it may be weak, as to viability over the long run. Arctic governance needs to open up further to take into consideration more interests of “outsiders” and to accommodate a broader set of claims.72 70  Norway and Russia sign historic maritime boundary agreement, available at https:// www.dur.ac.uk/ibru/news/boundary_news/?itemno=10741&rehref=/ibru/news/&resubj= Boundary+news+Headlines. 71  See Yugang Chen et al., “On the Arctic Council and International Cooperation in the Arctic Region” (beiji lishihui yu beiji guoji hezuo yanjiu), International Review (Guoji Guancha) 4 (2011), 22. 72  Accordingly, a significant number of officials and scholars think that the Arctic belongs to all the people around the world as no nation has sovereignty over the full limits of the oceanic region; China should be regarded as not an outsider but as a “near Arctic

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The Arctic region has an area beyond national jurisdiction under the supervision of International Seabed Authority, hence to that degree representing an extension of UN-based institutional and legal authority in the region. Environmental and ecological changes of the Arctic Ocean are connected to the interests of all humans, so the right to use the area and the power of administration of countries near the Arctic Ocean are compatible with the sovereign claims of Arctic states. Those elements consist of the basis of legality of subarctic mechanism, together with the gradual expansion of Arctic geopolitics and great potential of Arctic shipping lanes.73 The place of the European Union (EU) is also of current and future interest. Originally the EU participated very little in debates as to a regime covering Arctic issues. Since the addition to the EU of countries around the Arctic Ocean, however, Arctic geopolitics has inevitably gained the attention of the European Commission (EC). The EU also pays greater attention to the Arctic not only because of climate and environmental issues but also the strategic and the economic importance of the region, and additionally out of specific concern with issues such as the status and aspirations of Greenland. The EU’s Arctic Strategy is reflected in the Commission Communication on “The EU and the Arctic Region,” and the European Parliament’s Resolution on a sustainable EU policy for the High North.74 These documents outline the EU’s Arctic strategy, which consists of three aspects: first, to protect the rights of the Arctic region and its residents; second, to promote the sustainable development and utilization of its resources; and third, to encourage multilateral governance of the Arctic region.75 C Improving Arctic Governance The development of Arctic region governance is a long process that can be improved only gradually and in stages. This process may be divided into three steps.76 state,” and that the Arctic is an inherited wealth for all humankind. See Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region,” 30. 73  See ibid., 30–34. 74  Joint Communication to the European Parliament and the Council, “Developing a European Union Policy towards the Arctic Region: progress since 2008 and next steps,” JOIN (2012) 19 final (Brussels, June 26, 2012). 75  See Qisong He, “Climate Change and EU’s Arctic Strategy” (qihou bianhua yu ouzhou beiji zhanlue), European Studies (Ouzhou Yanjiu) 6 (2010), 59–73. 76  Some scholars illustrated the establishment of an international system of Arctic governance has three steps. The first one, as well as the transitional one, is the United Nations Convention on the Law of the Sea, and the second is the construction of a comprehensive

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First, the practical choice could be to consolidate existing governance mechanisms with current international instruments. The core instrument in this process is UNCLOS. The Convention does not specifically focus on Arctic Ocean governance, but its provisions are closely connected to all aspects of oceans governance. The three basic principles of the Law of Sea, namely the principle for convenient international transportation, the principle for fair use of the ocean and its resources, and the principle for sustainable development, may be applied separately to the issue of transit in the Arctic Ocean, ocean resource utilization, and maritime environmental protection in the Arctic region.77 These three issues reflect nearly all of the most important aspects of Arctic Ocean governance. Using UNCLOS as a basic framework for improving Arctic governance has great advantage, including universal jurisdiction over States’ party to the treaty. Second, a comprehensive environmental protection agreement on the Arctic Ocean should be made based on the current international regime and the development of functions of existing mechanisms towards the systematization of the Arctic shipping activities, the regularization of resource exploration and developing activities, and the uniformity and cooperativeness of current Arctic governance rules. Third, negotiation of an Arctic governance mechanism similar to the systemic integration of the Antarctic would be ideal. Previous studies have been conducted on this field, while most of them hold negative attitudes towards the establishment of the Arctic Treaty.78 agreement on environmental protection. Finally, a complete Arctic Treaty and relevant system of documents need to be finished. See Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 5–8. 77  See Huirong Liu et al., “The Legal Issues of the Arctic: A Preliminary Notion of Applying the Basic Principles of the Law of the Sea” (beiji falv wenti: shiyong haiyangfa jiben yuanze de jichuxing sikao), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 1 (2010), 5. 78  Some scholars trust the feasibility of forming a characteristic and effective Arctic treaty system with the core of Arctic Treaty. See Zhou Hongjun, “The Construction of Legal Status in Polar Regions and the Establishment of Relevant System” (liangji diqu falv diwei yu xiangguan zhidu de goujian), Chinese Yearbook of International Law (Zhongguo Falv Niankan) (Beijing: World Affairs Press, June 2009), 291–294. Other scholars treat an Arctic Treaty as the top design of an Arctic governance system. They approved the gradual establishment of an Arctic treaty system and made illustrations on several key issues. See also Huirong Liu et al., “The Legal Issues of the Arctic: A Preliminary Notion of Applying the Basic Principles of the Law of the Sea,” 5–6. Besides that, there are scholars who believed

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A Greater Chinese Participation China’s interest and participation in Arctic affairs has been growing, not only out of economic development considerations79 prompted by the better access to Arctic resources and new Arctic passages, but also due to a desire to influence Arctic governance. In particular, as one of the largest exporters and importers of shipped goods, China heavily relies on the sea lanes. If the ice does melt and the Northwest Passage opens, China has a huge incentive to use it due to the shortened distance and reduced costs. Accordingly, China needs to make sure that it does not get locked out of the region, and make sure that its usage of the region would not require any political concessions or loss of face. Moreover, China’s desperate need for energy resources and raw materials for its fast growing economy also prompted China to participate in the Arctic affairs. Indeed, China’s intentions for coming to the Arctic have been interpreted differently by commentators and scholars. Certain scholars depict China as the Arctic resources contender, whereas other scholars think that China wants to explore the Arctic resources while add value to the promotion of a peaceful international environment.80 To seize the various economic opportunities and contribute to good Arctic governance, China has increased its spending on Arctic capacity building, such as with the establishment of the Yellow River Station, the conduct of various Arctic expeditions, its joining various international research organizations, and its encouraging of research projects on Arctic social and natural sciences, to name a few.81 it is unwise to apply the Antarctic mode to the situation of the Arctic. They analyzed on the basic elements of the legal systems of the Arctic and Antarctic regions, their sovereign plans and existing treaties. See also Yue Dong, “Arctic Dispute and Its Solutions under the Law of the Sea” (lun haiyangfa shijiaoxia de beiji zhengduan jiqi jieyue lujing), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 3 (2009), 8–9. 79  Such as the new opportunities to cut shipping costs, get at the ocean’s fish stocks, and extraction of natural resources. See, for example, Linda Jakobson and Jingchao Peng, China’s Arctic Aspirations. 80  See Jóhanna Vágadal Joensen, “A New Chinese Arctic Policy? An Analysis of China’s Policies towards the Arctic in the Post-Cold War Period,” Thesis, Aarhus University (2013), available at http://www.academia.edu/4675427/A_New_Chinese_Arctic_Policy_An_Analysis_ of_Chinas_Policies_towards_the_Arctic_in_the_Post-Cold_War_Period. 81  Kai Sun, “China and the Arctic: China’s Interests and Participation in the Region,” East Asia-Arctic Relations: Boundary, Security and International Politics, Paper No. 2 (November 2013).

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Most recently, substantial melting of the Arctic ice has worked to encourage diplomatic relations among those Arctic States towards China with the intent to form commercial multilateral cooperation. Amidst extensive unilateral measures to assert its claims over the Northeast Passage,82 Russia’s Rosneft and Novatek—along with the American petroleum company, ExxonMobil— established separate joint venture projects in the Barents Sea with the CNPC.83 Though the Norwegian government has not yet confirmed the report,84 a joint project between CNOOC, Eykon Energy—an Icelandic firm—and Norway has also been undertaken. Based on this trend, China must rely on real strengths in the formulation of international law, scientific investigations, and jurisdiction over resources and sea routes, in order to develop their influence in the Arctic.85 Through further cooperation with the other Arctic nations, China’s influence would not only be limited to exhorting only marginal jurisdictional influence in the Arctic through membership to the Arctic Council, but to develop as a stakeholder in harvesting the resources within the Arctic, allowing it substantially more leverage in directing international environmental, resource development, and scientific efforts.86 Indeed, even though permanent observer membership in the Arctic Council seems somewhat shallow (as observer states cannot vote), it will provide China with greater access to valuable information and be a platform for Chinese government and industry officials to meet with counterpart officials from the Arctic states. For advancement of China’s strategic ambitions, it is essential that it become a participant in agreements among the Arctic nations. B Jurisprudential Basis of China’s Participation The international regimes concerning international waters and new access to the Arctic region offer the jurisprudential basis for China’s expanded participation in Arctic activities and governance. The Law of the Sea Convention is the main international basis for China’s participation. Dean David Caron, for 82  Marco Evers, “Northeast Passage: Russia Moves to Boost Arctic Shipping,” Die Spiegel Online, August 22, 2013, http://www.spiegel.de/international/world/russia-moves-to-promotenortheast-passage-through-arctic-ocean-a-917824.html (accessed November 16, 2013). 83  Atle Staalesen, “China to Drill in Barents Sea,” Barents Observer, March 25, 2013, http:// barentsobserver.com/en/energy/2013/03/china-drill-barents-sea-25–03 (accessed Novem­ ber 16, 2013). 84  Gwladys Fouche, “China, Norway may team up in search for Arctic Oil,” November 13, 2013, http://www.reuters.com/article/2013/11/13/iceland-oil-china-idUSL5N0IX3DB20131113 (accessed November 16, 2013). 85  Wright, “The Dragon Eyes the Top of the World,” 15. 86  Ibid., 10.

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example, stated in 2010, “As far as I am concerned, the Law of the Sea [Convention] is not the reason for changes in the Arctic, but a passage for China to gain motivation to join Arctic development.”87 Other analysts emphasize that “the Law of the Sea [Convention] offers a general legal framework for shipping rules in different regions of the ocean.”88 The Convention also confirms the principle of free navigation on the high seas and innocent passage through the territorial seas. China may exercise its right of navigation on the high seas, exclusive economic zones (EEZs) and territorial seas, in the Arctic region. Furthermore, even if straight baselines are applied by Canada and Russia along the Northeast Passage and Northwest Passage, China and other countries still enjoy the right of transit passage through those straits used for international navigation.89 Moreover, UNCLOS can be interpreted as affording China the right to explore and exploit certain natural resources in the Arctic region in areas beyond national jurisdiction. Other rules that may apply include that Part XIII of the Convention, which confirms the right of states to undertake marine scientific research on the ocean.90 In Part XI, the Convention provides that the International Seabed Authority has jurisdiction over the seabed of the Area in the Arctic region. Furthermore, the right of countries to exploit biological resources on high seas and under certain circumstances (not often realized) in their EEZs is ensured. The People’s Republic of China participates in bilateral and multilateral treaties concerning the Arctic region. These instruments are seen by China as asserting its right to participate in Arctic governance. China is one of the signatories to the Svalbard Treaty, which specifies that, all citizens and all companies of States’ parties may become residents and to have access to Svalbard, including the right to fish, hunt or undertake any kind of maritime, industrial, mining or trade activity. Meanwhile, the Kingdom of Norway has authority 87   David D. Caron, “Panel V Introductory Remarks: New Challenges—Arctic Marine Environment and Biodiversity,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron H. Nordquist, Tomas H. Heidar, and John Norton Moore (Leiden Boston: Martinus Nijhoff, 2010), 319–322. 88  Zhiwen Li et al., “Analysis about the Legal Problems of Navigation in Arctic” (beiji tonghang de hangxing falv wenti tanxi), Legal Science Magazine (Faxue Zazhi) 11 (2010), 63. 89  Lixin Han et al., “China’s Rights Analysis in the Arctic Region under International Ocean Law” (zhongguo zai beiji de guoji haiyang falv xia de quanli fenxi), Annual of China Maritime Law (Zhongguo Haishangfa Yanjiu) 3 (2012), 98. 90  For a detailed discussion on China’s perspective, see Zhiguo Gao, “Legal Issues of MSR in the Arctic: A Chinese Perspective,” Arctic Science, International Law and Climate Change (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht) 235 (2012): 141–154.

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over the security of the residents of Svalbard, and is authorized to protect the unique and fragile wilderness landscape and natural environment.91 Likewise, the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea was signed by China, Russia, the United States, Japan, South Korea, and Poland. The treaty recognizes the right of the parties to fish and conduct fishery management by agreement on the high seas in the Arctic region. Each of these international instruments offer support for China’s claims to continued and enhanced participation into Arctic activity and governance. International conventions concerning the exercise of the marine administrative power also support China’s interest in Arctic waters. For example, the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Code for Investigation) provides that the coastal state, flag state and the seafarer’s state may each participate into the investigation of marine casualties or maritime incidents. In accordance with this rule, China applies the Code for Investigation in cases involving . . . the safety investigation of marine incident that meets the “very serious” level prescribed in Section 2.22 of the Code for Investigation, and meanwhile concerns Chinese ships engaged in any international voyage in any sea areas or foreign ships in any sea areas under the jurisdiction of China.92 Therefore, when marine casualties and incidents concerning Chinese ships in the Arctic waters occur, China has legal responsibility to investigate them. China also has the legal right to conduct maritime search and rescue in the Arctic waters in accordance with the 1979 International Convention on Maritime Search and Rescue (Convention on Search and Rescue), which specifies in Article 3.1.2 that “a Party should authorize, subject to applicable national laws, rules and regulations, immediate entry into or over its territorial sea or 91  Miao He et al., “Svalbard Treaty and Its Significance to Spratlys Dispute” (sierbadetiaoyue ji nansha wenti duiqi de jiejian), Journal of Suzhou University (Suzhou Daxue Xuebao) 4 (2011), 179. 92   “Notice for Execution of IMO Rules on Accident Investigation,” Maritime Safety Administration of People’s Republic of China, 51, February 2, 2010; see International Maritime Organization (IMO), Annex 4: Resolution MSC.255(84)—Adoption of the code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code) 16 May 2008, MSC 84/3.

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territory of rescue units of other Parties solely for the purpose of searching for the position of maritime casualties and rescuing the survivors of such casualties.” Since the Convention on Search and Rescue may also be applied in the settlement of marine incidents in Arctic waters, and Arctic coastal states who are party to the treaty may be required to afford China a legal right to enter into or over their territorial sea for the purpose of rescue of Chinese ships and aircraft in distress.93 C Future Measures China’s Arctic strategy may be described in three dimensions. First, adopt a low-profile approach to avoid alarm or provocation among Arctic and other non-Arctic nations. Nations interested in the Arctic are watching China’s moves closely. Second, start from areas of “low” politics, such as climate change, and build out from there. Third, follow a low-confrontation approach that seeks to cooperate with Arctic and non-littoral countries. These elements coincide with China’s grand strategy: viz., to facilitate China’s rise to great power status while avoiding provocation and counterbalancing.94 Certainly, these need very careful planning and artful skills in order to realize the strategy. In addition, it is advisable that China emphasize the positive things that it can contribute to Arctic Governance. China’s enormous demand for natural resources, for example, provides ready markets once such natural resources are exploited and delivered into world trade. The more general market presence of China in the global economy also offers a source of leverage for recognition of its rights to engage in economic activities in ocean areas, including, in a dramatic way, the Arctic. 1 Legal Measures To gain initiative in the respect of international laws, China needs to continuously build and strengthen the legal basis for its participation in Arctic governance. The Law of the Sea is the core for Arctic governance in terms of ocean navigation and resource exploitation, etc. Consequently, China should also participate in Arctic governance with an emphasis on governance as very fundamental basis. The complexity of the governance, however, demands China’s active participation in constructing and improving specific legal

93  Lixin Han et al., “China’s Rights Analysis in the Arctic Region under International Ocean Law,” 98. 94  Michael Swaine and Ashley Tellis, Interpreting China’s Grand Strategy: Past, Present, and Future (Washington, DC: RAND, 2000).

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system because the Law of the Sea cannot solely provide for settlement of all of the various issues in Arctic governance. China’s participation in the environmental protection of the Arctic region also could become another method for its Arctic governance. China is a party to the main international environmental conventions, such as the Stockholm Convention on Persistent Organic Pollutions, the UN Framework Convention on Climate Change, and the Kyoto Protocol, for example. China has been consistently fulfilling its obligations in accordance with these relevant treaties.95 Climate change and environmental protection are the roots of Arctic governance and these issues inure to “common human concerns”96 in the domain of low politics. Consequently, these issues provide the best entry points for China’s participation into Arctic governance, both by helping reduce resistance, and by offering a solid basis and foundation for China’s involvement in international affairs. Finally, the long-term strategy should rely upon active participation in the existing legal mechanisms. Participation into the existing mechanisms is the only possible way to further dialogue, and only by opening discourse can China safeguard its national interests.97 Therefore, only by participating in the existing mechanisms may the geopolitical disadvantages of China be offset and the resistance of the Arctic countries softened. 2 Political Measures China should actively include Arctic governance in its policy making under the framework of global governance. Openness and fuzziness of the concept of governance are theoretical tools for China to take political measures, to participate into Arctic governance, and to reduce or break the exclusivity of the cooperative mechanism among Arctic countries.98 China needs to form 95  Cheng, “On Legal and Political Construction and Consummation of Arctic Governance,” 7. 96  In international law, the term “Common Human Concerns” refers to activities or resources originally within the scope of national sovereignty, but that also share public interests. Albeit it has not yet become part of international customary law, this concept has gradually been accepted by most states and wisely applied to climate change and biodiversity with support by practices from many countries within short periods. This theory may also become the basis for China’s greater participation in Arctic governance. See Yue Dong, “Trends of the Arctic Legal Order and New Horizons for China’s Rights in the Arctic” (beiji falv zhixu zouxiang yu zhongguo beiji quanyi xinshiye), Journal of Ocean University of China (Zhongguo Haiyang Daxue Xuebao) 6 (2012), 4–5. 97  Pan Zhengxiang et al., “Humble Opinions on China’s Arctic Strategy” (woguo weiji zhanlue qianjian), Journal of Chongqing Institute of Socialism (Chongqing Shehuizhuyi Xueyuan Xuebao) 5 (2011), 72–73. 98  See Cheng, “Probing into the Arctic Governance: Chinese Scholars’ Perspective,” 69.

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a union of mutual benefit with countries around the Arctic by alleviating conflicts of interest with policy flexibility. In addition, China should include the Arctic in its global governance by means of inclusiveness and extensive contents of global governance framework. It should admit the rationality of the existing regional governance system of the Arctic countries, while also promoting the participation of subjects outside, and organically combine the governance of the Arctic region with that of global climate change and environmental management.99 China should introduce its own Arctic strategy, to strengthen its Arctic policies, and to further enhance its effectiveness in discourse on Arctic governance. China is an important stakeholder to the Arctic region since the natural and social changes in the Arctic region greatly influence China’s development. The country has not, however, introduced a complete and unified Arctic strategy. It is necessary for China to establish a complete and comprehensive strategic system that embraces the concerns of politics, economy, society, technology and diplomacy, to expand and safeguard the overseas interests of China in the Arctic regions.100 Creation of feasible foreign policies is another important aspect for China’s active participation into Arctic governance. As one of the “subarctic” countries, China should heavily emphasize the development of relations with other countries that are geopolitically similar. This approach proposes the necessity for China to coordinate on policies about Arctic governance with such other “subarctic” countries as Japan, South Korea, and the states of the European Union,101 in order to influence Arctic states to take into consideration the rights and interests of countries outside the region.102 Among all relations of China with other Arctic countries, it is important to enhance policy coordination on Arctic issues with the United States, since this is in favor of China’s better participation into Arctic governance.103 The success of Arctic governance 99  See Baozhi Cheng, “Thoughts for Probing How would China better Participate into Arctic Governance” (zhongguo canyu beiji zhili de silu yu lujing), China Ocean Newspaper (Zhongguo Haiyangbao) (4th ed., October 12, 2012), 1. 100  See Wenzhong Kang, “Arctic Governance in Competition between Big Powers and China’s Rights” (daguo boyixia de beiji zhili yu zhongguo quanyi), PhD Thesis of Central Party School (Zhonggong Zhongyang Dangxiao Boshi Lunwen) (2012), 129. 101  See Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region,” 32. 102  See Kai Sun et al., “Changes of Arctic Governance System and China’s Strategy of Participation” (beiji zhili jizhi bianqian ji zhongguo de canyu zhanlue yanjiu), Forum of World Economy and Politics (Shijie Jingji Yu Zhengzhi Luntan) 2 (2012), 128. 103  See Baozhi Cheng, “On the Functional Transformation of the Arctic Council and China’s Countermeasures” (shixi beiji lishihui de gongneng zhuanxing yu zhongguo de yingdui

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largely depends on Russia.104 Russia is a key state in Arctic governance and therefore it becomes a necessary process for China to tighten the cooperation between China and Russia on Arctic governance.105 3

Practical Measures toward Achievement of China’s Policy Objectives Apart from the establishment of strong legal and political support, China also needs to take practical measures to manifest its existence and function in Arctic governance, which means China should promote an open, reasonable and effective structure for Arctic governance. Meanwhile, it is understandable that due to China’s limited impact upon the current Arctic governance, China has to keep its low-profile approach without direct confrontation with the Arctic countries.106 Scientific investigation is a great opportunity for China to participate in Arctic governance.107 It is not only currently one of the most prominent concerns in China’s aspirations for a role governance in the Arctic region, but also is the most effective method for China to assert its concern to participate into Arctic affairs.108 Scientific investigation is the best source of feedback from China to the Arctic states and for collaboration in the long term. After realizing the great importance of scientific investigation, China should seek to actively open the door to enter into Arctic governance with the help of two platforms—the International Arctic Science Committee and the Arctic Council. Programs of scientific investigation based on mutual interests ensure effective exchange and coordination with relevant countries on Arctic issues, and can serve to reduce conflict—especially if achieved with the assistance celue), International Forum (Guoji Luntan) 3 (2013). Some scholars stated that Canada and Russia are the biggest beneficiaries of the Sector Principle, while it is important for China to cooperate with the United States in the Arctic Region instead of these two. See also Liu, “Subarctic Mechanism and China’s Participation in the Arctic Region,” 32–33. 104  David D. Caron, “Images of the Arctic and the Futures They Suggest,” Library of Congress Lecture (March 2011), 18. 105  See, for example, Juha Käpylä and Harri Mikkola, “The Global Arctic: The Growing Arctic Interests of Russia, China, the United States and the European Union,” Finnish Institute of International Affairs, November 8, 2013, available at http://www.isn.ethz.ch/ Digital-Library/Articles/Detail/?lng=en&id=172671. 106  See Gang Chen, “China’s emerging Arctic strategy,” The Polar Journal 2:2 (December 2012), 7–8, DOI: 10.1080/2154896X.2012.735039. 107  Zhiguo Gao, “Legal Issues of MSR in the Arctic: A Chinese Perspective,” 141–154. 108  Cheng, “Thoughts for Probing How would China better Participate into Arctic Governance,” 1.

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(or in the framework) of international organizations.109 These programs can serve as a significant stepping stone in building trust between China and the Arctic States, which is crucial for an effective Arctic Governance. Besides enhancing its role in Arctic scientific inquiry, China should ensure the long-term development of Arctic governance, and participate actively in the fields with extreme economic value, such as Arctic shipping and resource exploitation Activities by China in these fields has heretofore not been carried out on large scale, and therefore it becomes necessary to participate in their international planning and development. Before the forming of related systems, China needs to continue to promote its views in multilateral agencies and forums such as the UN Conference on Climate Change and Sustainable Development, the various law of the sea meetings organized by the UN Division of Ocean Affairs and the Law of the Sea, IMO polar code negotiations, and Commission on the Limits of the Continental Shelf, so that the future system may embody China’s interests.110 China’s construction of “soft strength” in Arctic governance benefits not only the contemporary policy agenda but also its future objectives. From one perspective, the construction of oft strength through scientific research and practical investigation in Arctic governance promotes China’s transformation from a “learner” status to one of the producers of knowledge, with all the political and strategic advantages that flow from that transformation. Hence the importance of research and dissemination of new knowledge on international institutions and laws about the Arctic region, on climate change, on Arctic environmental management, on its shipping regulations, on the indigenous populations in the Arctic region.111 From another perspective, in the pursuit of strategic and policy objectives, China must seek to obtain and enlarge its participatory role in in Arctic governance, and exercise its power of discourse, and give priority to creating consistent and distinctive Arctic policies. In the process, China should also express well-informed concerns about Arctic issues, consistent with undertake international responsibilities as a rising power, and continue to seek to integrate actively into the community of interests with an Arctic identity.

109  Wenzhong Kang, “Arctic Governance in Competition between Big Powers and China’s Rights,” 130. 110  Baozhi, “Thoughts for Probing How would China better Participate into Arctic Governance,” 1–2. 111  Wenzhong Kang, “Arctic Governance in Competition between Big Powers and China’s Rights,” 131.

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As Arctic governance continues to develop and thrive, it becomes increasingly urgent for China to participate in that Arctic governance based on a strong legal basis. Judging by China’s diplomacy over past years, it is expected that China will respect the sovereignty of the Arctic countries, and yet will at the same time continue to promote its interests in a progressive incremental way through various forms of cooperation.112

112  See Aaron Friedberg, A Contest for Supremacy: China, America, and the Struggle for Mastery in Asia (New York, NY: W.W. Norton, 2011), 144.

Chapter 15

Boundary Conflict: The China-Philippines Confrontation over the Scarborough Reef, and the Viability of UNCLOS Dispute Resolution Procedures Joel C. Coito Introduction Scarborough,1 an exposed landmass in the South China Sea, has become the focal point of an increasingly bitter dispute between the People’s Republic of China (China) and the Republic of the Philippines (the Philippines).2 The South China Sea encompasses approximately 1.4 million square miles of * Judge Advocate, U.S. Coast Guard; J.D., 2013, University of California, Berkeley, School of Law. I would like to thank Professor Harry Scheiber for the guidance, mentorship, and valuable feedback received during the completion of this chapter. Further, this chapter benefitted greatly from the discussions, questions, and presentations made at the 2013 Law of the Sea Institute (LOSI)—Korea Institute for Ocean Science and Technology (KIOST) Conference. The views expressed in this chapter are those of the author and do not reflect the official policy or position of the U.S. Coast Guard, the Department of Homeland Security, or the U.S. Government. 1 Scarborough Reef, also called Scarborough Shoal, is called “Huangyan Island” in Chinese. See Keyuan Zou, “Scarborough Reef: A New Flashpoint in Sino-Philippine Relations?,” International Boundaries Research Unit Boundary and Security Bulletin (1999): 71. China’s characterization of Scarborough Shoal as an island has significant implications under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and the accuracy of this classification is taken up in detail in Part IV. In the Philippines, Scarborough Shoal is also known as “Panatag Shoal.” See Edsel Tupaz, Daniel Wagner, and Ira Paulo Pozon, “China, the Philippines, and the Scarborough Shoal,” Huffington Post, January 28, 2013, accessed April 2, 2013, http://www.huffingtonpost.com/daniel-wagner/china-the-philippines-and_b_1531623 .html. 2  See Tupaz, Wagner, and Pozon, “China, the Philippines, and the Scarborough Shoal” (“[T]he rising tension over the Scarborough Shoal has served to raise the Philippines’ profile once again—both as a potential adversary to China over mineral resources in the region, and as a reliable ally of the U.S.”); see also Peter Dutton, “Three Disputes and Three Objectives, China and the South China Sea,” Naval War College Review 64 (2011): 1. (“[S]ome have described

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the Pacific Ocean, within which China, the Philippines, Vietnam, Malaysia, and Brunei3 have asserted a conflicting “tangle of overlapping boundaries.”4 The impetus for these disparate claims stems from the strategic importance of the South China Sea and its abundant natural resources, including oil, gas, and hydrocarbons.5 This chapter addresses the purported basis and legitimacy of the territorial claims over the Scarborough Shoal asserted by China and the Philippines, growing tensions and recent standoffs at the Shoal, proper classification of the Scarborough Shoal under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and dispute resolution mechanisms available to, and in some cases compulsory for, State parties contained in the treaty. Finally, it assesses the impact of the Philippines’ unprecedented decision to initiate arbitration proceedings against China, as well as the importance of China’s response to the legitimacy of dispute resolution mechanisms under the UNCLOS regime. I

Scarborough Reef

An accurate, if uncharitable, description of the Scarborough Shoal recently labeled it a “miniscule rock formation in the South China Sea.”6 Given the growing fracas over sovereign rights to the shoal, its meager size is overshadowed by its great geopolitical significance. To understand the controversy over this small feature, it is helpful to first discuss its vast resources and strategic importance within the South China Sea. With this context as a backdrop, Part II dissects the conflicting claims of China and the Philippines to the Scarborough Shoal.

the complex disputes in the South China Sea as essentially a tangled knot of intractable challenges.”). 3  Beina Xo, “South China Sea Tensions,” Council on Foreign Relations, accessed January 31, 2013, http://cfr.org/china/south-china-sea-tensions/p29790. 4  “South China Sea,” accessed February 2, 2013, www.southchinasea.org. 5  “Standoff at Scarborough Shoal,” Aljazeera, August 3, 2012, accessed January 15, 2013, http://www .aljazeera.com/programmes/101east/2012/07/201273093650328417.html (“The South China Sea is a strategically important and resource-rich area in Asia. Around half the world’s merchant fleets pass through every year carrying an estimated $5 trillion worth of trade. The area is also believed to contain valuable oil and gas deposits.”). 6  Max Boot, “China Starts to Claim the Seas,” Wall Street Journal, June 24, 2012, accessed January 21, 2013, http://online.wsj.com/article/SB10001424052702304782404577486302897095 274.html.

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A Natural Resources Scarborough Reef is rich in living marine resources, including fish, sea cucumbers, and shells.7 The premium placed on these marine resources is a product of the demand for an inexpensive source of protein for the “500 million people in China, Hong Kong, Taiwan, Vietnam, Malaysia, Singapore, Indonesia, Brunei, and the Philippines” that “live within 100 miles of the South China Sea coastline.”8 Coastal economies depend on the lucrative tuna and shrimp fisheries, and regional workers depend on income from fishing, marine transportation, and tourism in the South China Sea.9 Unfortunately, advances in fishing technology and the inability of coastal states to reconcile overlapping territorial claims only exacerbates these extraordinary demands; the competition has resulted in a maritime tragedy of the commons.10 Perhaps even more important than the living marine resources, the growing demand for oil and energy security has sharpened the competing territorial claims in the South China Sea.11 The resources could be so vast that some have referred to the South China Sea as the “second Persian Gulf.”12 China is 7   Zou, “Scarborough Reef,” 72; see also Manuel Mogato, “PH Fishermen Say Chinese Have Taken over Scarborough Shoal,” Reuters, April 23, 2013, http://www.abs-cbnnews .com/focus/04/23/13/ph-fishermen-say-chinese-have-taken-over-scarborough-shoal (“The Scarborough shoal is famed among fisherm[e]n for its rich waters, packed with turtles and squid as well as fish such as grouper and mackerel.”). 8    David Rosenberg, “Beyond the Scarborough Scare: Joint Resource Management in the South China Sea,” e-International Relations, accessed May 1, 2012, http://www.e-ir.info/ 2012/05/01/beyond-the-scarborough-scare-prospects-for-joint-resource-management-inthe-south-china-sea/. 9   Rosenberg, “Beyond the Scarborough Scare.” 10  See Rosenberg, “Beyond the Scarborough Scare” (“The demand on fish resources has intensified considerably due to coastal urbanization and improvements in fishing methods. This has led to the overexploitation of fisheries in the shared waters of the South China Sea. Fish catch rates began to decline in the 1970s with sharper declines registered in the 1980s. . . . Fisheries depletion is not only evident in declining catch rates, but also in small fish sizes and market movements down the food chain from large, high-value fish such as tuna, grouper, and snapper, to smaller, lower-value fish such as sardines, herring, and mackerel.”). 11  “Standoff at Scarborough Shoal,” Aljazeera (“The South China Sea is a strategically important and resource-rich area in Asia. . . . The area is also believed to contain valuable oil and gas deposits. And ownership is hotly contested. There are ongoing territorial disputes between Vietnam, Malaysia, Indonesia, Philippines and China.”). 12  Lee Lai To and Chen Shaofeng, “China and Joint Development in the South China Sea: An Energy Security Perspective,” in Security and International Politics in the South China Sea, ed. Sam Bateman and Ralf Emmers (New York: Routledge, 2009), 160.

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at the center of this theme. Surging economic growth in Asia, led by China,13 has caused a sharp spike in the regional demand for fossil fuels, especially oil.14 China’s acute shortfall in oil is worsened by its use of inefficient industrial equipment, anomalous pricing methods, and lopsided exploitation practices.15 This confluence of factors largely explains China’s focus on the Scarborough Shoal and its “potentially enormous oil and gas deposits.”16 Strategic military security is even more important than the lucrative offshore energy in the region. B Strategic Security In addition to substantial natural resources, the South China Sea is of paramount strategic significance to the Asian security paradigm, and indeed to global stability.17 The South China Sea has become “the hub of the industrial revolution of Asia.”18 The area is a major conduit for world trade, including some 18,000 commercial vessels that transit the Sea each year.19 Since 2003 Asia has become “by far” the continent with the world’s largest volume of seaborne commerce, accounting for over 37 percent of the global share.20 Home to a number of critical sea-lanes, including the Malacca, Sunda, Singapore, 13  Lai To and Shaofeng, “China and Joint Development in the South China Sea.” 14  South China Sea, U.S. Energy Information Administration 1 (March 2008) (“The South China Sea is rich in natural resources such as oil and natural gas, but ownership of the resources is in dispute. Asia’s robust economic growth has boosted demand for energy in the region. According to EIA estimates, oil consumption in developing Asian countries is expected to rise by 2.7 percent annually from about 14.8 million barrels per day (MMbbl/d) in 2004 to nearly 29.8 MMbbl/d by 2030.”). 15  See Mark Valencia, Jon Van Dyke, and Noel Ludwig, Sharing the Resources of the South China Sea (The Hague, Netherlands: Kluwer Law International, 1997), 83. 16  “Standoff at Scarborough Shoal,” Aljazeera. 17  See Mark Valencia, “China and the South China Sea Disputes.” International Institute for Strategic Studies, Adelphi Paper 298, 1995) (“[T]he South China Sea disputes are not primarily about oil but about . . . strategic significance and sovereignty claims thereto.”); see also Wu Shicun, “Commentary: A Regional Perspective on South Sea Passage Security,” in Maritime Security in the South China Sea: Regional Implications and International Cooperation, ed. Shicun Wu and Keyuan Zou (Burlington, VT: Ashgate Publishing Co., 2009), 99. (“Passage through the South China Sea plays an important geopolitical and geo-economic role, as it shapes the security pattern in the region.”). 18  Rosenberg, “Governing the South China Sea,” 7. 19  See Yann-huei Song, United States and Territorial Disputes in the South China Sea: A Study of Ocean Law and Politics, Maryland Series in Contemporary Asian Studies (Baltimore, MD: School of Law, University of Maryland, 2002), 21. 20  Hong Nong, “Maritime Trade Development in Asia, a Need for Regional Maritime Security Cooperation in the South China Sea,” in Maritime Security in the South China Sea: Regional

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Lombok and Makasar straits,21 the South China Sea is the “throat” of the Pacific and Indian Oceans.22 In the last decade of the 19th century, Admiral Alfred Thayer Mahan famously highlighted the “profound determining influence of maritime strength upon great issues,” and proclaimed the “use and control of the sea is and has been a great factor in the history of the world.”23 The gravity of these statements has not been lost upon contemporary leaders, and today significant disruption of free navigation in the South China Sea has the capacity to send shockwaves through the Asia-Pacific region and beyond.24 Freedom of navigation is a particular concern for the great naval powers, including the United States and Japan.25 Professor David Rosenberg, professor emeritus at Middlebury College, notes that “[f]or major naval powers, freedom of navigation through the sea lanes of the South China Sea is of paramount importance for their naval fleets.”26 Regional naval forces have become increasingly assertive in response to disputes between fishing vessels over diminished fish stocks, and have stepped up interdiction of maritime piracy, drug trafficking, and illegal migration.27 As a result of these competing concerns, coastal states and influential naval forces from distant regions have engaged in tactical and intelligence gathering activities that are “more intensive, intrusive, controversial, and dangerous.”28 The legal dispute between the Philippines and China over Scarborough Reef has arisen within this increasingly complex maritime security setting. Implications and International Cooperation, ed. Shicun Wu and Keyuan Zou (Burlington, VT: Ashgate Publishing Co, 2009), 35–36. 21  Song, United States and Territorial Disputes in the South China Sea, 21. 22  Mingjiang, “China’s South China Sea Dilemma,” 141. 23  Alfred Thayer Mahan, The Influence of Sea Power Upon History 1660–1783 (Little, Brown, and Company: Boston, 1918), Preface iv. 24  See, e.g., Song, United States and Territorial Disputes in the South China Sea, 21 (“If freedom of navigation cannot be maintained [in the South China Sea], the economic health of the countries in the Asia-Pacific will be seriously affected.”). 25  See Geoffrey Till, “The South China Sea Dispute: An International History,” in Security and International Politics in the South China Sea, ed. Sam Bateman and Ralf Emmers (New York: Routledge, 2009), 35 (“[I]t is easy to see why the . . . South China Sea . . . should be thought strategically important, as placed to protect and refurnish naval forces. They could provide a means of maintaining a strong maritime presence in the area, and a route by which to advance to other regions.”). 26  Rosenberg, “Governing the South China Sea,” 7. 27  Rosenberg, “Governing the South China Sea,” 7. 28  Ibid.

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Conflicting Claims to the Scarborough Reef

A China’s Claim to Scarborough Reef China claims sovereign control over Scarborough Reef.29 Sovereign control, it argues, is “indisputably” established by historic rights.30 China’s historical claims begin with the Yuan Dynasty (1271–1368 AD),31 which relied on the astronomical research of Guo Shoujing, whom China claims surveyed the islands in 1279 AD.32 China buttresses its sovereignty arguments with maps from the 3rd and 18th century, and archaeological relics found [on the Spratly and Paracel Islands] that it attributes to the Han Dynasty.33 China’s historical account of sovereignty at Scarborough Shoal is dubious. Philip Bowring, for example, contends that “China avoids the[. . .] inconvenient geographic facts [that Scarborough Shoal is well within the Philippine EEZ and approximately 350 miles from mainland China] and relies on historical halftruths that it applies to every feature it claims in the South China Sea.”34 Even a more measured response to China’s historical claims concedes that there is a “very limited amount of information about the so-called history of China’s

29  Zou, “Scarborough Reef,” 73 (“China has maintained a longstanding territorial claim over the Scarborough Reef.”). 30  Carlyle Thayer, “The China-Philippines Face Off at Scarborough Shoal: Back to Square One?,” e-International Relations, accessed May 2, 2013), http://www.e-ir.info/2012/04/26/ the-china-philippines-face-off-at-scarborough-shoal-back-to-square-one/ (“China bases its claim [to Scarborough Reef] on historic rights.”). See also id. (Discussing the actions of Chinese civilian vessels interfering with commercial exploration in the EEZ of the Philippines and Vietnam in 2011, and noting that “China justified its actions by claiming ‘indisputable sovereignty’ over these waters on the basis of historic rights.”). 31  Francois-Xavier Bonnet, “Geopolitics of Scarborough Shoal.” Research Institute on Contemporary Southeast Asia, Discussion Paper #14, 2012, 12. 32  Daniel Wagner, Edsel Tupaz, and Ira Paulo Pozon, “China, the Philippines, and the Scarborough Shoal,” Huffington Post, May 20, 2012, http://www.huffingtonpost.com/danielwagner/china-the-philippines-and_b_1531623.html (“Beijing now argues that it first discovered and mapped the entire South China Sea during the Yuan Dynasty (1271–1368 AD), and that it was again mapped in 1279 AD by Chinese astronomer Guo Shoujing in a survey of islands surrounding China.”). 33  Adam Nieves Johnson, “A Bilateral Analysis of the South China Sea Dispute: China, the Philippines, and the Scarborough Shoal” (unpublished M.A. thesis, Florida International University, June 1, 2012), 12. On file with FIU Electronic Theses and Dissertations, Florida International University. 34  Philip Bowring, “China’s Invented History,” Wall St. J., June 4, 2012, http://online.wsj.com/ article/SB10001424052702303918204577446202239267134.html.

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sovereignty over Scarborough Shoal.”35 The late professor Jon Van Dyke, an esteemed scholar of the law of the sea and expert in South China Sea issues, noted that China has not historically exercised “effective occupation and control” over the islets of the South China Sea.36 Furthermore, archaeological artifacts and ancient documents found on the islands of the South China Sea are considered inconclusive evidence of sovereignty.37 “Although an object may be Chinese in style or originate in a place that today is a part of China, the one who brought it to the island did not necessarily represent China as a state.”38 The ambiguity of China’s claims in the South China Sea has further weakened its argument for historic rights to the Scarborough Shoal.39 A further difficulty with China’s historic claims is that they significantly predate the current international law structures that govern questions of maritime boundary delimitation.40 Mark Valencia, a senior fellow with the Program on International Economics and Politics at the East-West Center, observes that China “will have to defend [its territorial claims in the South China Sea] in the 35  Bonnet, “Geopolitics of Scarborough Shoal,” 12. 36  Jon M. Van Dyke, “What’s at Stake in the South China Sea?,” in Sharing and Distributing Ocean Resources, ed. Jin-Hyun Paik and Seokwoo Lee, SLOC Study Group—Korea Monograph Series (Yonsei University Press: South Korea, 2012), 117. 37  Stein Tonnesson, “An International History of the Dispute in the South China Sea” (working paper no. 71, East Asian Institute, 2001) (“Some present-day governments maintain that their claims to sovereignty over islands and reefs, sometimes even the sea as such, have a legal origin extending back into the classic or pre-modern era. They sustain their claims by referring to archaeological finds and ancient documents. Chinese archaeologists have discovered ‘Chinese’ objects in the islands of the South China Sea dating from more than 2000 years ago. Vietnamese archaeologists claim to have found ‘Vietnamese’ objects. However, it seems doubtful that these objects may be considered ‘Chinese’ or ‘Vietnamese.’ ”). 38  Tonnesson, “An International History.” 39  Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 27 (“The ambiguity of China’s claims presents, of course, a major weakness to its legal status. Claims to historic waters must be notorious, announced to all the world, and efforts must be made to enforce such claims.”). See also Rosenberg, supra note 8, at 3 (“There are a lot of complex aspects to this sovereignty dispute, but one of the most problematic is China’s ambiguous claims in the South China Sea. These claims have been referred to as the ‘ninedashed line, the ‘nine interrupted-lines,’ the ‘U-shaped line,’ as well as the official Chinese name: “traditional maritime boundary line” (chuantong haijiang xian).”). 40  See Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 23 (“Chinese scholars respond [to arguments that it has not exercised continuous authority in the South China Sea] by arguing that China was not familiar with Western international law principles and procedures until the 19th century.”).

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context of current international law, and . . . a claim to most of the South China Sea as historic waters will be very difficult to defend.”41 The expansive claim to “most of the South China Sea” to which Valencia refers is the area bounded by China’s nine-dashed line. In 1935, the Land and Water Maps Inspection Committee of the Republic of China published a map with a dotted line drawn around 132 reefs and islets of the four South China Sea archipelagos, enclosing the Scarborough Reef.42 In 1947, the Republic of China then published an “official map of the archipelagos of the South China Sea,” using eleven dashed lines “to indicate the boundary of the islands, reefs, banks and adjacent waters over which China exercised sovereignty.”43 The People’s Republic of China adopted the maps, and in 1953, Premier Zhou Enlai approved elimination of two lines in the Tonkin Gulf, leaving a line with nine dashes.44 Since 1935, China has regarded Scarborough Shoal as part of the Zhongsha Islands (Zhongsha Qundao).45 This conclusion has been challenged as geographically suspect,46 and analytically clouded by disparate English and Chinese translations of the term “Zhongsha Qundao.”47 Despite these 41  Valencia, “China and the South China Sea Disputes,” 13. 42  Rosenberg, “Beyond the Scarborough Scare,” 3. 43  Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 24. 44  Rosenberg, “Beyond the Scarborough Scare,” 3. See also Zou, “Scarborough Reef,” 74 (“China has claimed all the islands, reefs, and shoals within its 1947 unilaterally drawn U-shaped line in the South China Sea as its territory. Scarborough Reef lies within this line. For administrative purposes, China places the South China islands, including Scarborough Reef, under the administration of Hainan Province.”). 45  Zou, “Scarborough Reef,” 71. 46  See Robert Beckman, “Scarborough Shoal: Flashpoint for Confrontation or Opportunity for Cooperation?,” S. Rajaratnam School of International Studies (RSIS) Commentaries No. 72, 2012 (“There is some difficulty with China’s argument that it has sovereignty over Scarborough Shoal based on the inclusion of the Shoal within China’s historic claim to Zhongsha Islands, otherwise known as Macclesfield Bank. First, Scarborough Shoal is geographically a considerable distance from Macclesfield Bank. Second, under international law, Macclesfield Bank may not be capable of being subject to a claim of sovereignty because it is completely submerged. It would be difficult for China to argue that Scarborough Shoal falls within any maritime zone claimed from Macclesfield Bank.”). 47  See Zou, “Scarborough Reef,” 71 (“Certain foreign scholars challenge the inclusion of Scarborough Reef in the Zhongsha islands as being geographically questionable, and even incorrect. The problem lies in the different perceptions of the meaning of the term ‘Zhongsha Qundao.’ If the term Zhongsha Islands is regarded merely as the English equivalent to Macclesfield Bank, then Scarborough Reef does not form part of this group. Nevertheless, in the Chinese conception, the term ‘Zongsha Qundao’ is not limited only

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o­ bjections, however, China’s 1992 Law on the Territorial Sea and the Contiguous Zone reaffirmed China’s claim to sovereignty over the Zhongsha Islands, including Scarborough Reef.48 B Philippine Claim to the Scarborough Reef The Philippine claim to the Scarborough Reef is based primarily upon geographical proximity and the rules in UNCLOS. The Philippines argues that Scarborough Shoal, located approximately 115 nautical miles from Luzon, the largest island in the Philippine archipelago, is well within its 200 nm EEZ,49 as authorized by UNCLOS.50 One commentator wryly noted, “Scarborough Shoal, which lies not only close to the Luzon coast but on the direct route from Manila bay to the ancient Cham ports of Hoi An and Qui Nhon, had to be known to Malay sailors,” likening China’s “there first” argument to “arguing that Europeans got to Australia before its aboriginal inhabitants.”51 Further, the Philippines asserts that since gaining its independence from the United States in the 1946 Treaty of Manila, it has “exercised effective occupation and jurisdiction” over the Scarborough Shoal.52 As further evidence of this claim, the Philippines cites a lighthouse it erected upon the shoal in 1965, and extensive scientific research that it has conducted in the surrounding waters.53 The thrust of the Philippines’ argument is that it has: [E]xercised sovereignty and effective jurisdiction in the Shoal and its nearby waters, which was never contested by other countries in the past. For decades, the Philippines has used it as: (1) a traditional fishing ground to Macclesfield Bank, but includes Scarborough Reef and other shoals. . . . In addition, the term ‘Qundao’ in Chinese can be translated into ‘archipelagoes’ in English, thus making the geographical scope of the Zhongsha Islands even wider.”). 48  Zou, “Scarborough Reef,” 74. 49  Bowring, “China’s Invented History, ” 1 (“The Philippine case for Scarborough is mostly presented as one of geography . . . It’s well within the Philippine’s Exclusive Economic Zone, which as per the U.N. Law of the Sea Convention, extends 200nm off the coast. On the other hand, the shoal is roughly 350 miles from the mainland of China and 300 miles from the tip of Taiwan.”). 50  United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS], arts. 55–58 (describing the legal regime of the Exclusive Economic Zone (EEZ), rights of the coastal state in the EEZ, breadth of the EEZ, and the rights and duties of other States in the EEZ). 51  Bowring, “China’s Invented History,” 2. 52  Rosenberg, “Beyond the Scarborough Scare,” 2. 53  Rosenberg, “Beyond the Scarborough Scare,” 2.

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and sanctuary; (2) a site for scientific studies, particularly on oceanography and by marine scientists and government agencies; (3) an impact range for Philippine and American air forces during the 1980’s; (4) an area for lighthouse operation; and (5) an area of operations for the enforcement of law in smuggling and illegal fishing.54 The Philippine government made an overt claim to the Scarborough Shoal in 1997, when its Secretary of Foreign Affairs Domingo Saizon officially stated that “the Scarborough Shoal is part of [the Philippines’] territory.”55 He cited a provision in the Philippine Constitution that “national territory comprises the Philippine archipelago, with all the islands and waters embraced therein.”56 In February 2009, the Philippine Congress cemented its claim to the Scarborough Shoal by passing the Territorial Sea Baseline Bill—a move met with strong condemnation by the Chinese and Vietnamese governments.57 The Philippine claim to the Scarborough Shoal is most vulnerable by virtue of its recency.58 Francois-Xavier Bonnet, a French geographer and Research Associate of the Research Institute on Contemporary Southeast Asia, presents a fascinating rebuttal to this argument, and suggests that the Philippine Commonwealth government claimed the Scarborough Shoal as early as 1937–1938.59 Citing the historical research of David Hancox and Victor

54  Merliza M. Makinano, “Understanding the South China Sea Dispute.” Office of Strategic and Special Studies, Armed Forces of the Philippines, OSS Briefing Paper, 1998), 22. 55  Zou, “Scarborough Reef,” 74 (quoting the Statement of the Philippine Foreign Affairs Secretary Domingo Siazon before the Public Hearing of the Senate Foreign Relations and Defense Committees on 5 June 1997). 56  1987 Constitution of the Republic of the Philippines Oct 15, 1986, art. 1. 57  Nong Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea (Routledge: New York, 2012), 20, 30. 58  Bonnet, “Geopolitics of Scarborough Shoal,” 10 (“The main argument of the Chinese government and legal scholars is to consider the Philippine claim on Scarborough Shoal as extremely recent. According to their writings, the Philippine government claimed this shoal for the first time in 1997.”); see also Zou, “Scarborough Reef,” 74 (“In comparison to China’s claim, the claim by the Philippines is rather new. . . . Historically, the Philippines had no territorial claim to Scarborough Reef.”). 59  See Bonnet, “Geopolitics of Scarborough Shoal,” 10 (“On the Filipino side, legal scholars have avoided [the arguments regarding the recency of the Philippine claim], jumping from the Spanish time to some activities in the 1960s and then to UNCLOS. By doing this, these Filipino researches have missed, in my opinion, a point: a claim on Scarborough Shoal by the Philippine Commonwealth government in 1937–1938.”).

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Prescott,60 Bonnet asserts that the reefs and islets of the South China Sea were subject to covert surveying and mapping in the 1920s and 1930s.61 During this time, the United States, Britain, and Japan were exploring these features in the South China Sea to determine the feasibility of military infrastructure, including refueling stations, observation points, and submarine bases.62 Noting that in the 1930s the Commonwealth of the Philippines (Commonwealth) was preparing for its anticipated independence from the United States and its subsequent defense needs, Bonnet argues that “none of the [. . .] conflicting claims in the South China Sea escaped the vigilance of high-level Filipino politicians and scholars.”63 For example, in 1938, Commonwealth President Manuel Quezon asked the U.S. State Department to help determine ownership of the Scarborough Shoal to facilitate an air and ocean navigation system on it.64 While the U.S. State Department could find no information on ownership, U.S. Secretary of State Cordell Hull suggested that “the [Scarborough] shoal should be regarded as included among the islands ceded to the United States by the American-Spanish Treaty of November 7, 1900,”65 and that, absent a superior claim, the U.S. did not object to the Commonwealth’s assessment of the Scarborough Shoal for use “as an aid to air and ocean navigation.”66 Still, Bonnet concedes that he has yet to uncover documentary evidence of an 60  See David Hancox and Victor Prescott, “A Geographical Description of the Spratyl Islands and an Account of Hydrographic Surveys Amongst Those Islands,” International Boundaries Research Unit, University of Durham, Maritime Briefing 1, no. 6 (1995), 36–37. 61  See Bonnet, “Geopolitics of Scarborough Shoal,” 10. 62  Ibid. 63  Ibid. But see Bowring, “China’s Invented History” (“Another unsteady pillar in China’s claim to the Scarborough Shoal is its reliance on the Treaty of Paris of 1898. This yielded Spanish sovereignty over the Philippine archipelago to the U.S. and drew straight lines on the map which left the shoal a few miles outside the longitudinal line defined by the treaty. China now conveniently uses this accord, which these two foreign powers arrived at without any input from the Philippine people, to argue that Manila has no claim.”). 64  Bonnet, “Geopolitics of Scarborough Shoal,” 11. 65  Cordell Hull, Memorandum to Wayne Coy, Office of the United States High Commissioner, March 31, 1938. BIA 907.127 U.S. National Archives and Records Administration. But see Bonnet, “Geopolitics of Scarborough Shoal,” 10 (“Subscribers to [the view that the Philippines first claimed the Scarborough Shoal in 1997] contend that the atoll is outside the Treaty of Paris between Spain and the United States in December 1898, the Treaty of Washington between the United States and Spain on November 7, 1900, and the Convention between Great Britain and the United States concluded on January 2, 1930, so the Philippines cannot reasonably claim it.”). 66  Cordell Hull, Memorandum to Harry Woodring, Secretary of War, July 27, 1938, BIA 907.127 U.S. National Archives and Records Administration.

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official Philippine claim to Scarborough Shoal until more recently.67 Bonnet suggests, however, that the United States and the Commonwealth strategically avoided formal claims to the shoal in order to avoid Japanese aggression and intervention.68 Perhaps the recent declassification of essential documents used in Bonnet’s research69 account for the prevalence of the view that the Philippine claims to Scarborough Shoal are relatively new. This view is implicitly supported by the Philippine government’s failure in recent decades to publish maps showing the Scarborough Shoal as part of Philippine territory.70 The persistent jousting match between China and the Philippines over the Scarborough Shoal belies claims by either country that their respective sovereignty claims can be resolved bilaterally, and the conflict suggests that international adjudication may be the most viable means for peaceful dispute resolution.71 III

Escalating Tensions and the Philippine Initiation of Arbitration Proceedings Against China

A Escalating Tensions in the South China Sea The “Mischief Reef” incident of 1995 set the tone for the current climate of dispute between China and the Philippines in the South China Sea.72 The 67  Bonnet, “Geopolitics of Scarborough Shoal,” 11. 68  Ibid. (“The bureaucratic process took nearly the whole year of 1938, and in 1939 the Japanese Navy took the control of Hainan Island, the Paracel Islands, and was pushing toward the Spratly Islands. For security reasons, the Scarborough Shoal was unofficially claimed.”). 69   The documents were declassified by the U.S. National Archives and Records Administration in 1994. See ibid., 10 n. 28. 70  Zou, “Scarborough Reef,” 74 (“Even in a 1978 map which was published by the Philippine National Mapping and Resource Information Authority, Scarborough Reef was not marked as Philippine territory.”). 71  See, e.g., Van Dyke, “What’s at Stake in the South China Sea?,” 116 (noting that parties to a South China Sea dispute “should display enough confidence in their legal positions to refer the territorial sovereignty dispute to the International Court of Justice, the International Tribunal for the Law of the Sea or an agreed arbitration panel. Further dithering is dangerous and unproductive.”). 72  See Ian James Storey, “Creeping Assertiveness: China, the Philippines, and the South China Sea Dispute,” Contemporary Southeast Asia 21, no. 1 (1999): 97 (“The year 1995 marked a turning point in Sino-Philippine relations with the discovery of Chinese-built structures on Mischief Reef—a small, rocky outcrop . . . well within the Philippine claimed 200-mile [EEZ].”).

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incident began in early-1995 when the crew of a Philippine fishing vessel was detained by Chinese troops for several days at the Reef.73 The Mischief Reef incident was the first time China openly took territory from a member state of the Association of Southeast Asian Nations (ASEAN).74 China also seized the Paracel Islands from Vietnam over 20 years earlier—in 1974—but at the time Vietnam was not a member of ASEAN. Hanoi joined the organization on July 28, 1995. Further investigation revealed that China had erected various structures on the Reef, including bunkers and communications equipment.75 In August, 1995, the Mischief Reef incident was diplomatically diffused76 through a bilateral code of conduct that called for peaceful dispute resolution in accordance with UNCLOS.77 Brief though this incident was, scholarly commentary on the Mischief Reef confrontation abounds.78 Among c­ ommentators, there 73  Ibid., 97. 74  Ralph Emmers, “The De-escalation of the Spratly Dispute in Sino-Southeast Asian Relations,” Security and International Politics in the South China Sea, ed. Sam Bateman and Ralf Emmers (New York: Routledge, 2009), 130–31 (2009). The ASEAN “was established on 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN declaration (Bangkok Declaration) by the Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore, and Thailand.” There are seven stated “aims and purposes” of the ASEAN established in its declaration, including “economic growth, social progress, and cultural development,” the promotion of “regional peace and security through abiding respect for justice and the rule of law,” the promotion of “active collaboration and mutual assistance,” “assistance to each other in the form of training and research facilities,” collaborating “more effectively for greater utilization of . . . agriculture and industries, the expansion of their trade . . . and the raising of the living standards of their peoples,” and “maintain[ing] close and beneficial cooperation with existing international and regional organizations . . . .”. “Overview,” Association of Southeast Asian Nations, accessed May 1, 2013, http://www.asean.org/asean/about-asean/overview. The current ASEAN member states are Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. “ASEAN Member States,” Association of Southeast Asian Nations, accessed May 1, 2013, http://www.asean.org/asean/aseanmember-states. Notably, China is not an ASEAN member state. 75  Storey, “Creeping Assertiveness,” 97. 76  However, subsequent confrontations between China and the Philippines warships at Mischief Reef would arise in January of 1996. Further, it was discovered in March and May of 1996 that China had upgraded its infrastructure at Mischief Reef. See ibid., 98. 77  Emmers, “The De-escalation of the Spratly Dispute,” 131. 78  See, e.g., Raul Pedrozo, “The Building of China’s Great Wall at Sea,” Ocean and Coastal Law Journal 17 (2012), 258; Christopher C. Joyner, “The Spratly Island Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-politics in the South China Sea,” International Journal of Marine and Coastal Law 13 (1998): 210; Daniel J. Dzurek, “China Occupies Mischief Reef In Latest Spratly Gambit,” IBRU Boundary and Security Bulletin (1995);

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is a palpable sense that China “is pursuing a policy of ‘creeping assertiveness’” in the South China Sea.79 Viewed in light of these territorial ambitions, the implications of the Mischief Reef incident extend well beyond the sovereignty of a rocky outcrop, and include the security architecture of the entire South China Sea.80 B The Conflict Moves to Scarborough Reef Perhaps counter-intuitively, China’s aggressive territorial posture in the South China Sea may have contributed to a brief period of regional stability in the years following the diplomatic resolution of the Mischief Reef incident. Peter Dutton, Director of the China Maritime Studies Institute at the U.S. Naval War College, notes that a pattern of Chinese aggression related to offshore claims of sovereignty in the region resulted in the . . . coalescence of a unified Association of Southeast Asian Nations (ASEAN) political position in opposition to China’s behavior. . . . ASEAN persuaded China to accept the 2002 ASEAN Declaration on the Conduct of the Parties in the South China Sea to decrease tensions among neighbors. . . . The Declaration of Conduct became the centerpiece of more than a decade of relative regional calm after 1995.81 Enduring peace in the South China Sea, however, has proved elusive. Stability was shattered by a series of “antagonistic Chinese actions” that began in 2007.82 In “2009 and 2010, the South China Sea emerged as a regional hot spot as a result of an increase in Chinese assertiveness in pressing its sovereignty claims.”83 In Valence, Van Dyke, and Ludwig, “Sharing the Resources of the South China Sea,” 79–82; Valencia, “China and the South China Sea Disputes,” 44–46; Stanley Meyer, “Incident at Mischief Reef: Implications for the Philippines, China, and the United States,” U.S. Army War College, Strategic Research Project (1996). 79  Storey, “Creeping Assertiveness,” 99. 80  Ibid., 112. 81  Peter Dutton, “Three Disputes and Three Objectives: China and the South China Sea,” Naval War College Review 64 (2011), 43 (noting Chinese pressure upon U.S. and foreign oil firms to stop oil exploration work with Vietnamese partners, as well as the March 2009 harassment of the American survey vessel USNS Impeccable, which encountered a host of Chinese naval, police, and fishing vessels during a patrol in the region). 82  Ibid., 43. See also Rosenberg, “Beyond the Scarborough Scare,” 1 (“Almost every month an incident occurs in the South China Sea that threatens to escalate into an armed conflict.”). 83  Carlyle A. Thayer, “China’s New Wave of Aggressive Assertiveness in the South China Sea,” International Journal of China Studies 2 (2011): 555.

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the Spring of 2012, when the Philippine Navy discovered eight Chinese fishing vessels at the Scarborough Shoal, the stage was set for conflict.84 On April 8, 2012, a Philippine naval surveillance plane observed eight Chinese fishing vessels anchored off Scarborough Shoal.85 Two days later, a Philippine naval team, stationed aboard a former 378-foot Hamilton Class high endurance coast guard cutter from the U.S. Coast Guard, boarded the Chinese fishing boats. The boarding team discovered “large amounts of illegally collected coral, giant clams, and live sharks” inside one of the boats.86 Two Chinese marine surveillance boats then arrived on the scene, and prevented Philippine naval forces from arresting the Chinese fishermen. A two-day standoff ensued.87 Philippine forces left the immediate area,88 although both countries maintained a naval presence in the vicinity of the Shoal until late June. At that point, both countries left, at least in part due to an impending typhoon.89 Making clear that the dispute over the Scarborough Shoal was far from over, Chinese Foreign Ministry spokesperson Hong Lei announced that China would “continue to maintain administration and vigilance over Huangyan Island [Scarborough Shoal] waters.”90 Likewise, the Philippine Department of Foreign Affairs made reference to ongoing “consultations” regarding the removal of the Chinese vessels from the Shoal.91

84  See Bruce A. Elleman, “Maritime Territorial Disputes and Their Impact on Maritime Strategy,” in Security and International Politics in the South China Sea, ed. Sam Bateman and Ralf Emmers (New York: Routledge, 2009), 53 (“In 1995, the Philippines and China agreed on eight ‘principles for a code of conduct.’ However, Beijing gradually upgraded its buildings on the Spratlys even while verbally disputing the Philippine’s claim to Scarborough Shoal. . . . According to one Rand report from 1999, such incidents showed that ‘China may use force to vindicate its claim to the South China Sea and its islands.’”). 85  “Scarborough Shoal Standoff: A Timeline,” Inquirer Global Nation, May 9, 2012, http:// globalnation.inquirer.net/36003/scarborough-shoal-standoff-a-historicaltimeline. 86  James Hookway, “Philippine Warship in Standoff with China Vessels,” Wall Street Journal, Apr. 11, 2012, http://online.wsj.com/article/SB100014240527023038154045773365504393996 94.html. 87  Jane Perlez, “Philippines and China Ease Tensions in Rift at Sea,” New York Times, June 19, 2012, A6. 88  Ibid. 89  See Jerry E. Esplanada, “China Fishing Boats Leave Scarborough Shoal—DFA,” Inquirer Global Nation, June 26, 2012, http://globalnation.inquirer.net/41311/dfa-chinese-boatsleave-scarborough-lagoon. 90  Ibid. 91  Ibid.

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C The Philippines Initiates Arbitration Proceedings Against China Recognizing that the hope for bilateral resolution of the Scarborough Shoal dispute was becoming increasingly bleak,92 on January 22, 2013, the Philippine Government initiated arbitral proceedings against China to dispute Beijing’s ambitious claims to the South China Sea, including Scarborough Reef.93 The Philippine Government informed China that it had asked for an Arbitral Tribunal under UNCLOS to “declare as illegal China’s nine-dash-line, which claims almost all the islands of the South China Sea, and encompasses territories the Philippines believes it rightfully owns.”94 IV

Proper Classification of the Scarborough Shoal under UNCLOS

Before discussing the viability of arbitral proceedings or other dispute resolution mechanisms available under UNCLOS, it is worthwhile to consider the legal status of the Scarborough Shoal. Given the persistently intractable nature of territorial disputes in the South China Sea in recent years,95 categorization of offshore features has been, perhaps unsurprisingly, a formidable task. This difficulty is due in part to the imprecision of various UNCLOS definitions and terms of art, and the disparate interpretations that have arisen as a result.96 The 92  See Tupaz, Wagner, and Pozon, “China, the Philippines, and the Scarborough Shoal” (“Discussions between Beijing and Manila [regarding the Scarborough Shoal] have been cordial at best, and with both sides having dug in their heels on this subject, there is no resolution in sight.”). 93  See Dapo Akande, “Philippines Initiates Arbitration Against China over South China Seas Dispute,” EJIL: Talk!: Blog of the European Journal of International Law (blog), January 22, 2013, http://www.ejiltalk.org/philippines-initiates-arbitration-against-chinaover-south-china-seas-dispute/. 94  Michael Lim Ubac and Tarra Quismundo, “The Philippines Says Taking Sea Dispute Case to Arbitration was Last Resort,” Philippine Daily Inquirer, April 28, 2013, http://global nation.inquirer.net/73281/del-rosario-taking-sea-case-to-arbitration-was-last-resort #ixzz2RiDes5vp. 95  See Clive Schofield, “The Trouble with Islands: The Definition and Role of Islands and Rocks,” in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, ed. Seung-Yong Hong and Jon M. Van Dyke (Martinus Nijhoff Publishers, 2009), 7 (“In terms of the number and complexity of overlapping jurisdictional and sovereignty claims made to it, the South China Sea is among the world’s most disputed areas.”). 96  See Hong, UNCLOS and Ocean Dispute Settlement, 32–33 (“The disagreements . . . between coastal states and user states in general on the interpretation of UNCLOS provisions generally, relate to the exact presumed meaning of the terms in the Convention, as well as the meaning of specific articles.”).

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Scarborough Shoal dispute is a particularly salient example of this problem.97 Proper characterization requires an analysis of UNCLOS Article 121, governing the regime of islands.98 This article, having been “drafted in an intentionally vague and ambiguous fashion,” has thus far “defied definitive interpretation.”99 Article 121 provides that: 1. 2.

3.

An island is a naturally formed area of land, surrounded by water, which is above water at high tide. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this convention applicable to other land territory. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.100

Despite the interpretive difficulties, the characterization of the Scarborough Shoal as an “island” versus a “rock” under Article 121 is a fundamental, yet contentious,101 element in resolving the dispute. There is a sharp distinction in the maritime territorial claims that flow from rocks and islands.102 Specifically, a country with an “island” under UNCLOS receives the full panoply of maritime zones: a territorial sea, contiguous zone, an exclusive economic zone,

97  See Keyuan Zou, Law of the Sea in East Asia: Issues and Prospects, (Routledge: New York, 2005), 62–63 (“In the case of Scarborough [Shoal], there is no doubt that the feature can generate its own territorial sea for its owner. It is, however, questionable whether Scarborough [Shoal] could have the capacity to generate its own EEZ. According to the [Law of the Sea] Convention, rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf (Art. 121). However, [UNCLOS] contains no further provisions on the exact meanings of ‘rocks’, ‘human habitation’, and ‘economic life of their own’, thus leading to different interpretations.”). 98  United National Convention on the Law of the Sea (UNCLOS), art. 121. 99  See Schofield, “The Trouble with Islands,” 27. 100  U NCLOS, art. 121. 101  Schofield, “Dangerous Ground,” 9 (“Differentiating between ‘islands’ and ‘rocks’ is problematic and has generated considerable scholarly debate as well as proving an important factor in numerous maritime and boundary disputes and delimitation questions.”). 102  Schofield, “The Trouble with Islands,” 20 (“The issue of distinguishing between types of insular feature, especially what constitutes an ‘island’ versus a ‘rock’ in the context of the Law of the Sea Convention Article 121, must be considered. This is a crucial distinction in respect of the claims to maritime jurisdiction that may be generated from such features.”).

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and a continental shelf.103 By contrast, “rocks” which are a “disadvantaged subcategory of islands,”104 are entitled only to a 12 nm territorial sea, and perhaps a contiguous zone.105 The “maritime zone-generative capacity” of “small, remote and, at first glance, apparently worthless islands,”106 has thus had a profound impact upon a host of overlapping claims in the South China Sea. Therefore, coastal states have a compelling motive to classify their sovereign claims as “islands” rather than rocks in order to increase the area over which they could exercise some form of national jurisdiction.107 Similarly, states are inclined to assert that the sovereign claims of their competitors are characterized not as islands, but mere “rocks.” A Islands Article 121(1) lists four elements of an island: (1) an area of land; (2) formed naturally; (3) surrounded by water; and, (4) above water at high tide.108 The “area of land” requirement means that the land “must be connected to the seabed, have the property of terra firma, and have a degree of permanence.”109 The “formed naturally” requirement means that the putative island cannot be manmade or artificial.110 The “surrounded by water” element is self-evident and non-controversial.111 The final requirement that the land be above water at 103  See UNCLOS, art 121(2); see also Jonathan I. Charney, “Rocks That Cannot Sustain Human Habitation,” American Journal of International Law 93 (1999): 864 (“Article 121(2) of the 1982 [Law of the Sea] Convention expressly provides that islands are entitled to all maritime territorial zones: a territorial sea, a contiguous zone, an exclusive economic zone and a continental shelf.”). 104  Schofield, “The Trouble with Islands,” 25. 105  See UNCLOS, art. 121(3); see also Charney, “Rocks That Cannot Sustain Human Habitation,” 866. 106  Schofield, “The Trouble with Islands,” 19. 107  Schofield, “The Trouble with Islands,” 36 (Describing a “strong perception on the part of many [coastal states] that small and previously inconsequential insular features can give rise to potentially large claims to maritime jurisdiction and that these claims will, in turn, give rise to sovereign rights over significant ocean resources.”). 108  U NCLOS, art. 121(1). 109  Yann-huei Song, “Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China, in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, ed. Seoung-Yong Hong and Jon M. Van Dyke (Martinus Nijhoff Publishers, 2009), 165. 110  Ibid., 165. However, the author notes that respected ocean law commentators have disagreed on the threshold at which “extensive reinforcement” of naturally formed land effectively renders it an artificial island “unable to claim an EEZ or a continental shelf.” 111  See Schofield, “The Trouble with Islands,” 24.

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high tide makes clear that “reefs that are submerged at high tide, even if artificial structures have been built on them,” are not properly considered islands, and do not support a claim to maritime zones.112 The elements of an island under Article 121(1)–(2) are mostly uncontroversial by virtue of their establishment as customary international law.113 A lively debate, however, has arisen over the proper interpretation of the term “rocks” under Article 121(3).114 B Rocks A central difficulty in applying Article 121(3) is that the word “rocks” is not defined in UNCLOS.115 The confusion is also attributable to the intentionally imprecise116 drafting of UNCLOS. Article 121 is the sole article under Part VIII of UNCLOS, “Regime of Islands.” From this title, one might infer that “all the features addressed in [article 121] are islands, including rocks in paragraph 3.”117 Yet islands are entitled to a territorial sea, contiguous zone, EEZ, and continental shelf, whereas rocks, which are a subset of islands, are specifically 112  Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 41. 113  Song, “Okinotorishima,” 164 (“Article 121 paragraphs 1 and 2 . . . should be considered customary law . . . . Thus, even non-parties to the Law of the Sea Convention are bound by Article 121 paragraphs 1 and 2.”). 114  See Schofield, “The Trouble with Islands,” 26 (“Relevant literature indicates that commentators have advocated wildly differing interpretations of the text of Article 121(3).”) (emphasis added). See also Ian Townsend-Gault, “The South China Sea Workshops,” in Security and International Politics in the South China Sea (New York: Routledge, 2009), 192 (“Academic and juridical debate rages on also about the precise meaning of Article 121(3).”). 115  Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 42. 116  Schofield, “The Trouble with Islands,” 27. However, the wisdom of a vaguely defined island-rocks regime under what became Article 121(3) was challenged early on during the Third United Nations Conference on the Law of the Sea (UNCLOS III) by geographers Dr. Robert Hodgson and Robert Smith, who advocated for the deletion of paragraph 3 of Article 121, or, in the alternative, that “rock be defined objectively so as to remove all doubts as to which rocks would be affected by this provision.” Barbara Kwiatkowska and Alfred H.A. Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own,” Netherlands Yearbook of International Law 21 (1990): 140. 21. Following the lead of Hodgson and Smith, Japan, Greece, France, Cyprus, the United Kingdom, Brazil, Zambia, Iran, Portugal, and Ecuador advocated for the deletion of paragraph 3. Id. at 142 n. 9. Yet, “despite the repeated efforts of States during UNCLOS III . . . the ambiguous language of the rocks-principle remained unchanged through all versions of the negotiating texts and, thereafter, the draft convention.” Id. at 140–41. 117  Charney, “Rocks That Cannot Sustain Human Habitation,” 864.

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denied an EEZ and a continental shelf. By resort to “negative implication,” it is determined that “rocks are entitled to a territorial sea and a contiguous zone.”118 While not a model of statutory clarity, a rock’s entitlement to generate a territorial sea and contiguous zone is not widely disputed.119 Rather, the heart of the interpretive debate surrounds the distinguishing feature of rocks—they “cannot sustain human habitation or economic life of their own.”120 1 Human Habitation The term “human habitation” is not defined in UNCLOS.121 Some scholars have taken the view that a feature must possess “natural conditions,” such as water, fertile soil, and related resources, in order to be considered capable of supporting human habitation.122 Even if these foundational elements of human survival are absent, however, an island could be deemed habitable if a state invested the money necessary to provide the resident population with food and water.123 Importation of resources to make a feature “habitable,” however, is in tension with the qualifying language “of their own.” Professor Van Dyke and attorney Robert Brooks took a pragmatic approach to the question of human habitation. Their touchstone for human habitability was whether the feature in question could support “stable c­ ommunities

118  Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press: Cambridge, 2005), 275. 119  See Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 144 (“Although the question of legal entitlement of rocks to a [territorial sea] . . . is not free from potential controversies, it seems beyond doubt given the wording of 121, paragraph 3 that its basic objective is to limit the category of islands able to generate those spaces under national jurisdiction and control ([Exclusive Economic Zone] and [Continental Shelf]) that extend beyond the [territorial sea].” 120  See Jon M. Van Dyke and Robert A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources,” Ocean Development and International Law 12 (1983): 285–87; see also Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 274 (“Rocks do not generate continental shelf or EEZ rights if they ‘cannot sustain human habitation or economic life of their own.’ The exact meaning of this qualification has been rightly queried.”); see also Schofield, “The Trouble with Islands,” 26 (“Concerning an insular feature’s capacity to ‘sustain human habitation’ or an ‘economic life’ of its own, there has been considerable scholarly debate on the issues, especially among international lawyers.’ ”). 121  Van Dyke and Brooks, “Uninhabited Islands,” 267 (“The [UNCLOS] text does not . . . explain what it means for a place to be able to ‘sustain human habitation . . . on its own.’ ”). 122  Ibid., 284. 123  Ibid.

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of people.”124 In a later work, Professor Van Dyke expanded upon this formula to suggest that a population of fifty individuals was a sufficiently stable community.125 Some scholars suggest a more ephemeral quality to the human habitation requirement. Human habitation “does not require that people reside permanently on the feature. . . . The phrase seems merely to require proof that the rock actually has some capacity for human habitation.”126 This view, however, provides a perverse incentive for a sovereign to demonstrate “some” habitation, even on small and remote features that provide highly improbable platforms for human settlement, solely to buttress claims.127 Perhaps this pernicious strategy was precisely what Professor Van Dyke had in mind when he stated the notion of a stable community, which requires from the claimant state:  . . . a commitment to the resources surrounding [an] insular structure greater than sending an occasional explorer or scientist to visit the outcropping. It would also require a use of the island for purposes other than a recently discovered interest by a distant population in the resources surrounding the uninhabited rock.128

124  Ibid., 286. 125  Jon M. Van Dyke et al., “The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?,” San Diego Law Review 25 (1988), 438. 126  Charney, “Rocks That Cannot Sustain Human Habitation,” 868; see also Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 166 (“neither should the human habitation of an island need to be permanent, for . . . an island (rock) is required to possess not human habitation per se, but the capacity to sustain human habitation, which implies that habitation of an island (rock) might not be permanent.”); cf. Song, “Okinotorishima,” 167:  “Based on the travaux preparatoires at the Law of the Sea Conference, it seems that the requirement of ‘human habitation’ referred to in paragraph 3 of Article 121 does not require that people be permanent residents living on the rock. But how long should the habitation be? Can fishers who live on shelters built on reefs or rocks be counted as habitation? All of the questions above remain to be answered. However, a common view is that if a rock or reef has enough food and drinking water, and is suitable for housing, then it meets the requirement of ‘sustain human habitation’ . . .” 127  For example, China recently sent a team of radio operators to the Shoal to participate in a broadcasting competition. The motivation for hosting such a competition is plausibly connected to a desire to demonstrate the human habitability of the Shoal. See infra note 165 and accompanying text. 128  Van Dyke et al., “The Exclusive Economic Zone of the Northwestern Hawaiian Island,” 437–38.

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2 Economic Life The phrase “economic life” is likewise undefined in UNCLOS.129 Consistent with the “stable community” interpretation of human habitation described above, some commentators have concluded that an “economic life” of an island requires more than an “artificial economic life supported by a distant population in order to gain control over an extended maritime zone.”130 The idea is “that a state cannot avoid a rock being denied an EEZ and a [continental] shelf by injecting an artificial economic life, based on resources from its other land territory.”131 An insular feature must possess organic economic viability to avoid sub-classification as a rock. This view suggests that human habitation is a necessary concomitant to economic life. Should there be a more holistic approach to weighing economic viability? One commentator would consider the ability to exploit fisheries and hydrocarbon resources within the insular feature’s territorial sea as part of the economic calculus.132 In a later writing, perhaps influenced by Van Dyke’s concept of a stable community, the same scholar clarified resources “in the abstract” would be insufficient to demonstrate economic activity, if they lacked the economic value to be exploited over an extended time period.133 Proponents that argue that the “economic life” of an insular feature can be sustained by external support invoke the International Arbitral Award decision in the Jan Mayen case.134 In that case, three jurists actively involved in negotiations at the Third United Nations Conference on the Law of the Sea suggested that an island’s economic life “would not . . . exclude external support for a not necessarily permanent population.”135 129  Van Dyke and Robert A. Brooks, “Uninhabited Islands,” 267 (“The [UNCLOS] text does not . . . explain what it means for a place to be able to . . . ‘sustain’ . . . economic life of [its] own.”). 130  Valencia, Jon Van Dyke, and Noel Ludwig, Sharing the Resources of the South China Sea, 43 (emphasis added). 131  Derek W. Bowett, The Legal Regime of Islands in International Law (Dubbs Ferry: New York, 1979), 34 (emphasis added). 132  See Jonathan I. Charney, “Central East Asian Maritime Boundaries and the Law of the Sea,” American Journal of International Law 89 (1995): 734. 133  Charney, “Rocks That Cannot Sustain Human Habitation,” 871. 134  “Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen: Report and Recommendations to the Governments of Iceland and Norway,” U.N. Reports of International Arbitral Awards (1981). 135  Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 169; cf. Song, “Okino­torishima,” 167:  “Does [‘economic life of their own’] mean self-sustaining, or is some degree of dependency allowed? Should rocks or reefs have their own food and water, and tillable soil?

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Yet an examination of the source of the economic activity may need to be supplemented with analysis of the substance of economic activity. A rock that lacks economic value in the traditional sense may still have economic value for use as a navigation, communication, or weather observation station.136 3

The Disjunctive “Or” between “Human Habitation” and “Economic Life” A further interpretive difficulty regarding Article 121(3) is the use of the disjunctive “or” between “human habitation” and “economic life.” Article 31(1) of the Vienna Convention on the Law of Treaties instructs that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”137 Ascribing ordinary meaning to the disjunctive “or” suggests that an insular feature needs either human habitation or economic life of its own to evade sub-classification as a “rock.”138 In apparent defiance of this ordinary meaning, however, Denmark argued during negotiations for UNCLOS that it “interpreted the word ‘or’ . . . to mean ‘and.’ ” The Danish interpretation is designed to reduce the number of states that evade the restrictions of Article 121(3) by showing only human habitation or economic life.139 A demonstration of “human habitation” does not necessarily imply economic life. Should they be self-sufficient, or can they depend on supplies transported from afar? Do the living and seabed resources in the maritime zones surrounding rocks count? Can activities related to fisheries, mining, oil and gas development, scuba diving, snorkeling, rock-climbing, whale watching, eco-tourism, setting up lighthouses, weather stations, communication facilities, or tidal monitoring stations, be regarded as ‘economic life of their own’?” 136  Van Dyke and Brooks, “Uninhabited Islands,” 284 (citing Hodgson and Smith). 137  Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S 331, art. 31. 138  See also Charney, “Rocks That Cannot Sustain Human Habitation,” 868 (“Only one of these qualifications must be met to remove the feature from the restrictions of Article 121(3).”). 139  See Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 164–65 (“The emphasis by States supporting the rocks-principle on the conjunctive character of the two tests seems to be justified by the fact that requiring a rock to sustain alternatively either human habitation or economic life could increase the possibility of excluding some islands from the definition of rocks under this provision. . . . [H]uman habitation as an alternative, sufficient criterion distinguishing an island from a rock could prevent some islands having manned military installations on them from qualifying as rocks on the ground that they serve no economic purpose.”).

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The imprecise drafting of Article 121(3), the consensus decision-making process of during the Third UN Conference, and the reality that many “participating states . . . considered first their own maritime interest,”140 mean uncertainty in interpretation of Article 121(3) will persist.141 4 Potential Capacity The term “cannot sustain” in Article 121(3) is also controversial. The phrase “cannot sustain,” as opposed to “do not sustain,” “proves that the test in question covers the capacity of rocks to sustain human habitation or economic life of their own, rather than the factual situation of sustaining or not sustaining such life. In other words, the definition refers to uninhabitable rather than uninhabited island (rocks).”142 In this view, it is the potentiality of human habitation or economic life, rather than habitation or economic life in fact, that controls the analysis. 5 Future Capacity and the Limiting Phrase “of their own” A more nuanced question is whether the capacity to sustain human habitation and economic life is prospective, that is, whether a future capacity to sustain human habitation or economic life is sufficient to escape classification as a rock. Some scholars, in a nod to human ingenuity, insist that it must be forward-looking. The late professor Jonathan Charney argued that the capacity of an island to “sustain human habitation or economic life of [its] own” must be determined in light of shifting resource values, and “human capacity to inhabit or economically develop the area” at some future point.143

140  Song, “Okinotorishima,” 167. 141  Ibid., 168 (“A satisfactory answer cannot be found by referring to the international judicial decisions to help interpret the application of Article 121 of [UNCLOS], mainly because relevant judgments have dealt with the issue of disputed islands’ roles in, or effect on, maritime delimitation, instead of the legal status of the islands. There are virtually no judicial precedents that have made specific judgments on whether an island in question, in accordance with Article 121 paragraph 3 of [UNCLOS], can or cannot claim a 200-n.m. EEZ or a continental shelf.”). 142  Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 160. 143  Charney, “Rocks That Cannot Sustain Human Habitation,” 867; see also Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 274 (“Charney has rightly noted that the [requirements of sustaining human habitation or economic life of their own] are directly linked to human activities and development and that they may well vary over time as technology and resource use change.”).

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On the other hand, “Any rock could support human habitation if the State was willing to spend enough money.”144 This interpretation of Article 121(3), however, reads out the qualifying phrase “of their own” from the treaty language. Indeed, “of their own” appears to be mere surplusage if any State with a vested interest in avoiding classification as a rock can simply import the essentials of human habitation and some indicia of economic activity. A reasonable interpretation of Article 121(3) should not reward such mischief by allowing States to transmogrify otherwise inhospitable rocks into islands as a basis for substantial maritime claims. Failure to give interpretive weight to the “of their own” limitation may thus result in an intermittent but interminable delegation of scientists, observers, supply vessels, businessmen, and visitors to otherwise inhospitable rocks in an ongoing charade of “human habitation and economic life.”145 Therefore, reading out this critical limitation of Article 121(3) is tantamount to manufacturing the “golden keys to vast maritime zones” that the article’s proponents warned of during the UNCLOS negotiations.146 6 Geographic Size While the text of Article 121 includes no reference to size, some scholars put forth proposals for an island regime organized by “area ratios.”147 For example, 144  Kwiatowska and Soons, “Entitlement to Maritime Areas,” 162 (quoting Hodgson and Smith, “The Informal Single Negotiating Text (Committee II): A Geographical Perspective,” 3 Ocean Development and International Law 3 (1976): 231 (1976); see also Van Dyke and Brooks, “Uninhabited Islands,” at 284 (“[Hodgson and Smith] note that a rock might be uninhabitable because of the absence of potable water, tillable soil, natural resources, biotic , and so forth, but that persons might nonetheless be able to survive there if a nation were willing to spend the money to ship in whatever staples and water are needed.”). 145  See Jon M. Van Dyke et al., “The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?,” San Diego Law Review 25 (1988): 438 (“Limiting extended maritime zones to those insular formations capable of sustaining a resident or nearby stable community of persons avoids the post hoc justification of declaring an extended zone that creates an economic life for the insular feature. . . . Infrequent visits from interested scientists would not constitute a stable community sufficient to create an EEZ for a rock or islet.”). 146  See Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 145 (quoting Statement of Denmark, The Law of the Sea, Regime of Islands—Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea, UN Sales No. E.87.V.11, 107); see also Valencia, Van Dyke, and Ludwig, Sharing the Resources of the South China Sea, 43 (“The language in Article 121(3) appears to require that the relevant ‘economic life’ of features must be ‘of their own.’ An artificial economic life supported by a distant population in order to gain control over an extended maritime zone is not sufficient.”). 147  Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 155.

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political geographers Dr. Robert Hodgson and Robert Smith proposed a system that distinguished between rocks, islets, isles, and islands, based primarily upon square mileage.148 Similarly, some countries proposed drafts of a sizebased island regime during the UNCLOS negotiations.149 Ultimately, however, these proposals were rejected “because size alone is not the key variable. Some very small islands have substantial populations and some large ones are virtually abandoned.”150 C Classification of the Scarborough Shoal as a “Rock” The Scarborough Shoal is an island. The maritime claim implications that flow from classification as an island, as opposed to a rock, are striking. In the case of the Scarborough Shoal, classification as an island would generate an EEZ claim of approximately 54,000 square nautical miles.151 The Scarborough Shoal is a “naturally formed”152 area of land with a “degree of permanence,”153 in that it is a non-artificial, triangle-shaped atoll with a 29-mile circumference.154 While size is not a requirement for classification as an island,155 one Chinese authority on the South China Sea has listed it as the largest atoll in the South China Sea.156 Located over 100 miles west of the Philippine Island of Luzon,157 the Scarborough Shoal is completely surrounded by water. Finally, “South Rock,” the reef’s largest feature, extends 5.9 feet above water at high tide, and thus

148  Kwiatkowska and Soons, “Entitlement to Maritime Areas,” 155–56. 149  See, e.g., “Romania: draft articles on definition of and regime applicable to islets and islands similar to islets,” U.N. Doc. A/CONF.62/C.2/L.53, III UNCLOS Vol. III, 228, at http:// legal.un.org/diplomaticconferences/lawofthesea-1982/docs/vol_III/a_conf-62_c-2_l-53 .pdf. 150  Van Dyke and Brooks, “Uninhabited Islands,” 286. 151  See Keyuan Zou, “Dispute Over the Scarborough Reef,” in Law of the Sea in East Asia: Issues and Prospects (New York: Routledge), 63. However, the author notes this claim would be limited by the overlapping Philippine claim from Luzon Island, which is “one of the reasons why Scarborough Reef has become a contentious issue between China and the Philippines.” 152  See supra note 110. 153  See supra note 109. 154  Zou, “Dispute Over the Scarborough Reef,” 61. 155  See Van Dyke and Brooks, “Uninhabited Islands,” 286. 156  Zou, “Dispute Over the Scarborough Reef,” 61. 157  Ibid.

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satisfies the final element of an island.158 In addition to South Rock, there are a few smaller features that also remain above sea level at high tide.159 Though less clear, the reef is most accurately classified as a rock. Regardless of whether one reads “human habitation” or “economic life of [its] own” as a disjunctive or conjunctive requirement, the Scarborough Reef fails on both counts. First, with regard to human habitation, the Scarborough Shoal is completely devoid of potable water and fertile soil—among the most basic “natural conditions” to sustain human life.160 Second, if one adopts Professor Van Dyke’s theory of a stable community of at least fifty persons to find human habitation, one commentator has noted that Scarborough Shoal would “clearly” fail to support such a population.161 Even if one takes the more liberal stance that a feature in question need only demonstrate some capacity for human habitation,162 it has been unequivocally stated, “none could live on these rocks.”163 There is a prophetic quality to Professor Van Dyke’s assertion that satisfaction of the human habitation element requires a “commitment to the resources surrounding [an] insular structure greater than sending an occasional explorer or scientist to visit the outcropping.”164 It appears that sending scientists and visitors to Scarborough Reef is precisely the course of action taken by both the Philippines and China. Specifically, in 1995, China sponsored a visit to the shoal by a team of radio operators to participate in an amateur radio broadcast competition.165 Likewise, in 1997, Philippine Congressmen Roque Ablan and Jose Yap visited one of the rocks at Scarborough Shoal to erect a Filipino flag.166 These actions, while almost certainly motivated by a desire to bolster sovereign claims to use and control of the Scarborough Shoal, may have also been aimed at demonstrating human habitation, necessary to assert claims to an island and its consequent maritime zones. The size of the exposed portion of rocks at Scarborough Reef, however, demonstrates that it is not only 158  Ibid. 159  Bonnet, “Geopolitics of Scarborough Shoal,” 6 (“[T]he shoal has few rocks above sea level at high tide.”). 160  See Van Dyke and Brooks, “Uninhabited Islands,” 284. 161  See Zou, “Dispute Over the Scarborough Reef,” 63. 162  See supra note 126 and accompanying text. 163  Bonnet, “Geopolitics of Scarborough Shoal,” 6. 164  Van Dyke et al., “The Exclusive Economic Zone of the Northwestern Hawaiian Islands,” 437–38. 165  “Scarborough Shoal—A Chinese Photo Tour,” South Sea Conversations, April 13, 2012, http:// southseaconversations.wordpress.com/2012/04/13/scarborough-shoal-a-photo-tour/. 166  See “Scarborough Shoal—A Chinese Photo Tour”; see also Bonnet, “Geopolitics of Scarborough Shoal,” 21.

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currently uninhabited, but also uninhabitable.167 Photos documenting both the Congressmen’s and the radio operators’ travels to Scarborough Reef make clear that these visitors had scarcely enough room to travel more than a few feet in any direction. No meaningful definition of “human habitation” can encompass such limited occupancy of the Scarborough Reef. It is also worth mentioning here that a number of smaller features in the vicinity of South Rock are best characterized as “low-tide elevations.” Under UNCLOS Article 13, a low-tide elevation is a “naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.”168 Because the main interpretive question at issue here deals with the proper classification of those features that remain above water at high tide, a detailed discussion of low-tide elevations is outside the scope of this paper. Though it presents a closer question, the Scarborough Reef also lacks a sufficient “economic life of [its] own” to avoid sub-classification as a rock. First, under the view that economic life within the meaning article 121 is not “artificial economic life supported by a distant population,” Scarborough Shoal has no economic life of its own. Though the reef is noted for its abundant living marine resources, “both Filipino and Chinese fisherman live on their boats during the fishing season,” as opposed to establishing an economic existence upon the feature.169 Furthermore, it would be a strained interpretation of the limiting phrase “of their own” to treat Chinese and Filipino fishermen from distant coastlines, whose “logistics come from the two mainlands,”170 as a proxy for organic economic activities. However, under the more expansive view of economic life espoused by Professor Charney, there is a rebuttal argument that Scarborough Shoal has an economic life of its own. In Professor Charney’s view, economic life “may include exploitation of the living or mineral resources found in the [surrounding] territorial sea.”171 In addition to abundant fishing grounds, the Scarborough Shoal also has “potential deposits of polymetallic nodules.”172 Charney believed such living marine and hydrocarbon resources must factor into the “economic life” calculus. Importantly, however, he clarified his statement by asserting that the feature(s) surrounded by such resources would be an “economically

167  See supra note 142 and accompanying text. 168  U NCLOS, art. 13. 169  Bonnet, “Geopolitics of Scarborough Shoal,” 6. 170  Ibid. 171  Charney, “Rocks That Cannot Sustain Human Habitation,” 870. 172  Bonnet, “Geopolitics of Scarborough Shoal,” 4.

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viable base for operations.”173 Given the size of the exposed portions of the Scarborough Shoal, it is unlikely that Charney envisioned this isolated rock with no fresh water or refuge from the elements as a “base for operations.” This conclusion is particularly true in cases in which a rock offers less space for a fisherman or oil prospecter than all but the most modest of vessels. As such, the reef is best viewed as a rock having no economic life of its own. V

Scarborough Shoal Dispute Resolution under UNCLOS

A The UNCLOS Dispute Resolution Framework 1 Compulsory Procedures for Dispute Resolution What are the possibilities for resolving the dispute over Scarborough Shoal by using the binding dispute settlement procedures in UNCLOS? The comprehensive dispute resolution framework under Part XV174 of UNCLOS has been called “the most sophisticated and detailed system for international dispute resolution ever drafted.”175 This dispute settlement system is grounded in two overarching principles of (1) state party flexibility in resolving their disputes176 and (2) the primacy of the will of those parties.177 These principles are expressed through an emphasis on peaceful resolution of disputes,178 negotiation and diplomacy,179 or resolution through binding decisions under “general, regional, or bilateral agreements.”180 Furthermore, third-party procedures including “inquiry, mediation, and conciliation”181 round out the possibilities for consentbased dispute resolution under Part XV.

173  Charney, “Central East Asian Maritime Boundaries,” 735. 174  U NCLOS Part XV, Settlement of Disputes, arts. 279–299. 175  John E. Noyes, “Compulsory Third-Party Adjudication and the United Nations Convention on the Law of the Sea,” Connecticut Journal of International Law 4 (1989): 675. 176  Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 29; see also Noyes, “Compulsory Third-Party Adjudication,” 683 (“[UNCLOS] acknowledges the continued primacy of informal mechanisms for dispute settlement in international relations.”). 177  A. O. Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea (Martinus Nijhoff: Dordrecht, 1987), 283. 178  See UNCLOS, art. 279. 179  Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 33 (“Negotiation and settlement through diplomatic channels is emphasized through the obligation to exchange views.”). 180  U NCLOS, art. 282. 181  Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 33–34.

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An unprecedented182 counterpoint to these consent-based measures is that State parties to UNCLOS “simultaneously consent to binding and mandatory dispute resolution procedures.”183 Where resolution of the dispute has not been accomplished under the consent-based procedures in Section 1,184 including an “exchange of views”185 aimed at settling matters through party negotiation,186 “any dispute concerning the interpretation or application of [UNCLOS] shall . . . be submitted at the request of any party to the dispute” to formal adjudication.187 Parties to the dispute then have four options for the forum in which the formal adjudication would take place: (1) the International Tribunal for the Law of the Sea (ITLOS), (2) the International Court of Justice (ICJ), (3) an arbitral tribunal constituted under Annex VII, (4), or a special arbitration panel under Annex VIII for disputes involving fisheries, marine environmental protection, marine scientific research, and/or navigation.188 If a State neglects to identify its forum preference, arbitration is selected by default.189 Similarly, if parties to a dispute have not accepted the same forum for dispute settlement, arbitration is automatically selected.190 182  See Noyes, “Compulsory Third-Party Adjudication,” 677–78 (“International law does not obligate states to submit their disputes to an international tribunal unless the states expressly agree, and no strong tradition of international adjudication of interstate disputes exists.”). 183  Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 29. Proponents of compulsory dispute settlement mechanisms during UNCLOS negotiations argued that such a system was necessary to ensure the “integrity” of the Convention’s text and to provide a defense against “unilateral interpretations of the terms of the Convention . . . .”. Id. at 52. 184  See UNCLOS, art. 279–285. 185  See UNCLOS, art. 283. 186  See Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 33 (“The inclusion of an obligation to exchange views was designed to cater to the wishes of delegations that the primary obligation of parties to a dispute should be to make every effort to settle the matter through negotiations.”). 187  U NCLOS, art. 286; see also Noyes, “Compulsory Third-Party Adjudication,” 53 (“When states have not settled their differences through the various means available under Section 1 of Part XV, disputes can be submitted at the request of any party to the appropriate forum subject to the terms of the Convention. No additional form of consent is required once a State is party to the Convention—consent to be bound by UNCLOS includes consent to compulsory procedures entailing binding decisions (subject to Sections 1 and 3 of Part XV).”). 188  U NCLOS, art. 287. 189  U NCLOS, art. 287(3). 190  U NCLOS, art. 287(5).

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2 Exceptions to Compulsory Procedures for Dispute Resolution The “remarkable”191 institution of compulsory third-party adjudication is, however, tempered by limitations and exceptions, enumerated in Section 3 of Part XV. Article 297(1), while not an explicit exception or limitation on the applicability of Section 2,192 specifically identifies disputes over freedom of navigation, laying of submarine cables or pipelines, or other internationally lawful uses of the sea as subject to compulsory procedures.193 Article 297(2) and (3) also state that Part XV, Section 2, applies to disputes regarding marine scientific research and fisheries, respectively.194 With regard to the dispute between China and the Philippines over the Scarborough Shoal, the more important exceptions are Article 298’s optional provisions for the applicability of Section 2. These exceptions enable a State party, “[w]hen signing, ratifying, or acceding [to UNCLOS] or anytime thereafter. . .[to] declare in writing that it does not accept any one or more of the procedures provided for in Section 2” for a specific category of disputes.195 China has declared that it does not accept any of the categories of disputes referred to in paragraph 1(a)–(c) of the Article 298.196 The most pertinent exception to the Scarborough Shoal dispute is that for disputes “relating to sea boundary delimitations, or those involving historic bays or titles.”197

191  Noyes, “Compulsory Third-Party Adjudication,” 677. 192  See Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 121 n. 415. 193  See UNCLOS, art. 297(1)(a). 194  See UNCLOS, art. 297(2)–(3); see also Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 121 (“Article 297 sets out which of these disputes are subject to compulsory procedures entailing binding decisions, which disputes are subject to compulsory conciliation, and which disputes are not subject to the UNCLOS dispute resolution regime at all.”). 195  U NCLOS, art. 298(1). 196  “Declarations and Statements, China, Declarations Made After Ratification,” Oceans and Law of the Sea, United Nations, August 25, 2006, http://www.un.org/Depts/los/convention_ agreements/convention_declarations.htm#China%20after%20ratification (“The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1(a)(b) and (c) of Article 298 of the Convention.”). 197  U NCLOS, art. 298(1)(a)(i).

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B The Initiation of Arbitral Proceedings and China’s Response 1 The Philippines Initiates Arbitration On January 22, 2013, the Philippines initiated arbitral proceedings against China over its extensive claim to the 9-dash line in the South China Sea.198 This unprecedented move has prompted speculation that the Philippines’ action was a “game changer” in the South China Sea dispute in what has become, “without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.”199 Given the Philippines’ economic dependence on China and inferior political, military and economic resources, it is not surprising that some have characterized Philippine action as a risky move.200 Still, the strength of the Philippine government’s conviction in the face of such risk suggests that it was indeed what Foreign Secretary Albert del Rosario called a “last resort . . . after the exhaustion of political and diplomatic approaches.”201 2 China’s Response to the Initiation of Arbitral Proceedings Chinese foreign ministry spokesman Hong Lei responded within one day of the initiation of arbitration by reiterating China’s position that it has “indisputable sovereignty over the South China Sea islands and adjacent waters.”202 Spokesman Lei asserted that sovereignty was supported by “abundant historical and legal grounds.”203 Approximately one month later, China formally

198  See “Philippines ‘to Take South China Sea Row to Court’,” BBC News, January 22, 2013, http://www.bbc.co.uk/news/world-asia-21137144. 199  Julian Ku, “Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea, Opinio Juris, January 22, 2013, http://opiniojuris.org/2013/01/22/gamechanger-philippines-seeks-unclos-arbitration-with-china-over-the-south-china-sea/. 200  See Ku, “Game Changer?,” (“The Philippines is taking a risk [by initiating arbitration against China] . . . [i]t knows China will not like it and it is increasingly dependent on China economically.”). 201  Michael Lim Ubac and Tarra Quismundo, “Del Rosario: Taking Sea Case to Arbitration was Last Resort,” Inquirer Global Nation, April 28, 2013, http://globalnation.inquirer.net/73281/ del-rosario-taking-sea-case-to-arbitration-was-last-resort; see also Ku, “Game Changer?,” (“I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily. In this forum, the worst case scenario is that the Philippines will lose on jurisdiction.”). 202  “China Reiterates Islands Claim After Philippine UN Move,” BBC News, January 23, 2013, http://www.bbc.co.uk/news/world-asia-21163507. 203  “China Reiterates Islands Claim After Philippine UN Move,” BBC News, January 23, 2013, http://www.bbc.co.uk/news/world-asia-21163507.

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responded to the Philippines by delivering a Note Verbale rejecting and returning the Philippines Notification and Statement of Claim.204 China has grounded its rejection of arbitral proceedings on its 2006 written declaration that it does not accept compulsory procedures with respect to disputes “concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles.”205 China argues that its adoption of this optional exception under Article 298(1) takes the Philippine claim outside the scope of compulsory dispute settlement procedures.206 China argues as an alternate, independent ground for rejecting arbitration that the Philippines’ arbitral claims “are essentially concerned with maritime delimitation” and “territorial sovereignty” over various islands and reefs, including the Scarborough Shoal. China argues that these issues do not “[involve the] interpretation or application of the [UNCLOS]” and cannot be resolved by compulsory procedures until the Sino-Philippine territorial disputes are resolved.207 An unstated, but perhaps additional reason for China’s resistance to the arbitral proceedings is its traditional preference for bilateral negotiation and general aversion to the control of regional bodies and international organizations.208 204  See “Department of Foreign Affairs’ Statement on China’s Response to the Philippines’ Arbitration Case,” Republic of the Philippines Department of Foreign Affairs, February 19, 2013, http://www.dfa.gov.ph/index.php/newsroom/dfa-releases/7465-the-department-offoreign-affairs-statement-on-chinas-response-to-the-philippines-arbitration-case. 205  See also note 196, supra, and accompanying text. 206  “Foreign Ministry Spokesperson Hua Chunying’s Remarks on the Philippines’ Efforts in Pushing for the Establishment of the Arbitral Tribunal in Relation to the Disputes Between China and the Philippines in the South China Sea,” Ministry of Foreign Affairs of the People’s Republic of China, April 26, 2013, http://www.fmprc.gov.cn/eng/xwfw/ s2510/2535/t1035577.shtml. The remarks stated:  “[I]n 2006, the Chinese Government made a declaration in pursuance of Article 298 of UNCLOS, excluding disputes regarding such matters as those related to maritime delimitation from the compulsory dispute settlement procedures, including arbitration. Therefore, the request for arbitration by the Philippines is manifestly unfounded. China’s rejection of the Philippine’s request for arbitration, consequently, has a solid basis in international law.” 207  Ibid. 208  See “China Reiterates Islands Claim After Philippine UN Move,” (“China has in the past preferred to handle disputes on a bilateral level, rather than through regional groupings or international organizations.”); see also Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 229 (“The Convention permits States to exclude at their election disputes relating to . . . maritime delimitation of the territorial sea, EEZ, and continental shelf . . . . This optional exclusion potentially denies a range of advantages otherwise

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3 The Arbitration Proceedings In accordance with Annex VII, which governs UNCLOS arbitration procedures, an arbitral tribunal consists of five members.209 Each party has the ability to appoint one member, and the other three members are appointed by agreement of the parties.210 In the event that the parties cannot agree on appointment of these three members within sixty days of the institution of proceedings, the President of the ITLOS will make the necessary appointments.211 The Philippines has nominated former ITLOS President Rudiger Wolfrum.212 China has refused to nominate a representative to the arbitral panel, and thus ITLOS President Shunji Yanai appointed Judge Stanislaw Pawlak of Poland as China’s representative.213 On April 24, 2013, President Yanai appointed the three remaining judges.214 The assembly of the arbitral tribunal is indeed a “step forward” for the Philippines in pursuing its claims against China.215 Selection of the arbitration tribunal, however, is only a preliminary step in determining the ultimate outcome of the Philippine claim. Before the tribunal can reach the merits, it must first be satisfied that it has jurisdiction to hear the claim.216 As one commentator closely following the Chinese-Philippine dispute noted, “the Philippines has a massive jurisdictional problem” as a result of China’s written declaration under Article 298 that rejects compulsory procedures for disputes over maritime boundary delimitations and those involving historic titles.217 accruing to States in dispute but is a realistic reflection of States preferences for political, rather than third-party, settlement when dealing with an important matter such as title.”). 209  U NCLOS Annex VII, art. 3(a). 210  U NCLOS Annex VII, art. 3(b)–(c). 211  U NCLOS, Annex VII, art. 3(e). 212  “Polish Judge to Represent China in Philippine Arbitration Proceedings,” SinaEnglish, March 25, 2013, http://english.sina.com/china/p/2013/0324/574844.html. 213  Ibid. 214  Michela Del Callar, “ITLOS Completes Five-man Tribunal That Will Hear PHL Case vs. China,” GMA News Online, April 25, 2013, http://www.gmanetwork.com/news/story/ 305570/news/nation/itlos-completes-five-man-tribunal-that-will-hear-phl-case-vs-china. As of June 21, 2013, the other members, after one resignation and appointment of a replacement, were: Thomas Mensah (Ghana), president; Jean-Pierre Cot (France); and Alfred Soons (The Netherlands). 215  Del Callar, “ITLOS Completes Five-man Tribunal.” 216  See Ku “Game Changer?” (“I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction.”). 217  Ku “Game Changer?”.

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Recognizing this jurisdictional problem, the Philippine government astutely crafted its statement of claim in a way that avoids asking the tribunal to delimit maritime boundaries between itself and China,218 or determine sovereign rights to historic titles, which would implicate China’s exception to compulsory procedures. Rather, the Philippine’ claim seeks a ruling on whether the Scarborough Reef, among other features “claimed by both China and the Philippines,” is an island, rock, low-tide elevation, or submerged bank, rather than asking for a delimitation or resolution of sovereign rights.219 Herein lies the fundamental difficulty that the arbitral tribunal will have to address: are the disputes over classifying the Scarborough Shoal as an “island” or a “rock,” and China’s broader claim to the 9-dash line “so inextricably linked with sovereignty that they cannot be separated”?220 Natalie Klein suggests that these issues may not be so linked. Specifically, she notes that a “State may try to raise the specific question of whether a particular feature is a rock or an island under Article 121 without asking a tribunal or a court to be involved in the actual maritime delimitation.” Klein is acutely aware, however, of the jurisdictional challenge that arises and that China has asserted here, noting that such a challenge “would certainly be warranted on the basis that the question is inherently related to maritime delimitation and should be excluded due to the optional exception of one (or both) of the disputant States.”221 The fact that the arbitral tribunal has been assembled, without the participation of China and in the midst of these jurisdictional uncertainties, highlights an important aspect of the UNCLOS dispute resolution system. Namely, with regard to China’s absence, a “court or tribunal may render a decision whether or not the other party participates in the process.”222 With regard to the uncertain jurisdictional issues, the UNCLOS dispute resolution system recognizes and accounts for the “complexities . . . and varying interpretations” of UNCLOS.223 As such, it seeks to give the parties a forum to argue their claims and the tribunal an “opportunity to consider the issues raised,” rather than 218  Akande, “Philippines Initiates Arbitration against China.” 219  See Ibid. 220  Ibid. 221  Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 276. 222  Ibid., 53; see also “China Rejects Arbitration with Philippines Under UNCLOS; Can It?,” Chinese Law Prof Blog, February 19, 2013, http://lawprofessors.typepad.com/china_law_ prof_blog/2013/02/china-rejects-arbitration-with-philippines-under-unclos-can-it.html (“Annex VII makes clear that the failure of a state to show up and cooperate does not bring the proceedings to a halt; they go on without it.”). 223  See Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 69.

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excluding a dispute based upon a “simple assertion that is may fall within the exceptions of Section 3 of the Part XV.”224 For this reason, and based upon the selection of a complete arbitral panel, the arbitral tribunal will convene to determine its jurisdiction to hear the merits of the Philippine claim. VI

Implications of China’s Response for the Future Legitimacy of UNCLOS Dispute Resolution Mechanisms

China has rejected the Philippine initiation of arbitral proceedings, has refused to nominate a representative to the arbitral tribunal, and has unequivocally stated that its position “will not change.”225 There are far-reaching implications when a country such as China—a rising economic and military superpower and signatory to UNCLOS—fails to comply with UNCLOS dispute settlement procedures. China’s failure to meaningfully respond to the Philippine initiation of arbitral proceedings has the potential to deliver a “serious, near fatal blow, to the UNCLOS dispute settlement system.”226 Absence of a good faith effort by China to litigate the proper interpretation of Article 121’s definition of a “rock” versus an “island” reduces the chance of “developing and clarifying the law on this [persistently unresolved] issue.”227 Furthermore, Professor Robin Churchill notes that at least one-third of 165 parties to UNCLOS “are in breach of at least one significant provision of [UNCLOS].”228 Such flagrant non-compliance, he warns, “undermines the integrity and legitimacy” of the Convention and raises the specter of violent conflict arising from unresolved disputes.229 A violent end to the Scarborough Reef dispute would be tragic, not only for China and the Philippines, but to

224  Ibid. 225  “Foreign Ministry Spokesperson Hua Chunying’s Remarks.” 226  Julian Ku, “Goodbye UNCLOS Dispute Settlement? China Walks Away from UNCLOS Arbitration with the Philippines,” Opinio Juris, February 19, 2013, http://opiniojuris. org/2013/02/19/goodbye-unclos-dispute-settlement-china-walks-away-from-unclos-arbi tration-with-the-philippines/. 227  See Klein, Dispute Settlement in the UN Convention on the Law of the Sea, 275. 228  Robin Churchill, “The Persisting Problem of Non-compliance with the Law of the Sea Convention: Disorder in the Oceans,” International Journal of Marine and Coastal Law 27 (2012): 815. 229  Ibid.

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all who hope that the rule of law and peaceful dispute resolution will prevail under UNCLOS.230

230  See Louis B. Sohn, “Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way?,” Law and Contemporary Problems 46 (1983), 200 (“[F]or disputes between parties to [UNCLOS] the system of dispute settlement provided by the Convention, though it appears extremely flexible and provides several options, in the great majority of cases can lead to a binding decision likely to be accepted and complied with by parties to the dispute. This is the way to the rule of law and to ensuring that the peace of the world will not be jeopardized by a dangerous escalation of law of the sea controversies.”).

Part 6 Enforcement in Ocean Management Regimes

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Chapter 16

Combating Illegal and Unauthorized Fishing: An Assessment of Contemporary Practice Stuart Kaye Introduction The emergence of the exclusive economic zone (EEZ) in the 1970s placed potentially vast areas under national jurisdiction. From a regime of relatively modest territorial seas close to the coast as the only basis of fisheries jurisdiction for States, suddenly the international community embraced a new form of jurisdiction over resources that extended to fisheries up to 200 nautical miles from land. This extension brought over one third of the world’s oceans under national jurisdiction, or more importantly, approximately ninety percent of the world’s wild fish catch.1 While the possibility of bringing the resources of these areas under national control was of tremendous value to many developing States, the difficulties of enforcement over such areas were not so readily considered. Some States, notably the States of the South Pacific, but by no means restricted to them, simply lacked the capacity to police their waters and protect their resources from the depredation of others. A vast area subject to national jurisdiction would potentially require substantial assets at sea and in the air in order to effectively patrol, police and enforce the new jurisdiction vested in States. For oil and gas exploitation, deployment of few if any coast guard or naval assets in the EEZ was not a huge difficulty, as exploitation of the seabed is a slow and expensive business. For fisheries, which can be far more cheaply exploited, and in a more transitory fashion, a lack of enforcement capacity represented a potentially serious impediment. In the years since the United Nations Convention on the Law of the Sea (UNCLOS)2 was opened for signature, many States have learned that the maintenance of a capability to enforce their laws in their EEZ is expensive and * Professor of Law at the Australian National Centre for Ocean Resources and Security at the University of Wollongong. 1  FAO, State of World Fisheries and Aquaculture 2012 (Rome: FAO, 2012), 94. 2  United Nations Convention on the Law of the Sea, 1833 UNTS 3.

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difficult to maintain. Some valuable fisheries have been seriously damaged by illegal, unreported and unregulated (IUU) fishing in any areas, which are difficult to patrol, by virtue of geography and lack of capacity. In the latter case, the inability to enforce the fisheries laws of the coastal State has been credited as a contributing cause to the rise of piracy in the waters around Somalia in the past decade.3 When the difficulties present in enforcing coast al State law are coupled with the inexorable rise in IUU fishing, and the greater emphasis on international cooperation in the management of straddling and high seas fish stocks, it is natural that States would begin to explore the possibility of cooperation in the patrol and enforcement of their EEZs. This chapter considers the range of responses by States to their individual lack of enforcement capacity, and considers the types of cooperative response to which the present situation has given rise.

Types of Cooperation

Cooperation between States over issues of maritime enforcement can be characterized into a number of types, based on a continuum of engagement in cooperation. For the purposes of argument here, cooperation has been placed into one of three categories:

· Data exchange and observers · Boarding and referral to the flag State · Boarding and arrest by a third State Each type of cooperation represents a different level of enforcement engagement, passing through a continuum from virtually nothing to another State stepping into the shoes of the flag State for the purpose of conducting an arrest. Strictly speaking, exchanging data and the deployment of independent observers is very much at the lowest end of engagement, where everything but the collection of the most basic eye-witness testimony as to fishing activities and catch volumes still rests with the flag, coastal or port State. Boarding and referral represent a greater level of engagement, where only a portion of the authority is vested in a third party. Finally, boarding and arrest represents the complete vesting of jurisdiction and authority in a third party.

3  I. Tharoor, “How Somalia’s Fishermen Became Pirates,” Time, April 18, 2009, http://www.time .com/time/world/article/0,8599,1892376,00.html.

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As might be expected, the frequency of the use of these different arrangements is inversely proportionate to the level of authority required of a third State seeking to enforce the law. Such a situation is to be expected, given the great reluctance of States to cede their authority to others. Nevertheless, the difficulties of enforcement and concerns over IUU fishing have compelled some States to be prepared to cooperate, even at the expense of what might be seen as traditional prerogatives. a Data Exchange and Observers Far and away the most common arrangement for cooperation in maritime enforcement is in the context of data exchange and the deployment of observers. Cooperation in the sharing of data and the use of observers in fisheries has been employed across a number of agreements.4 It has typically been used as a mechanism to ensure that compliance is effectively monitored by flag and port States. A system of observation and inspection typically involves the facilitation by a Regional Fisheries Management Organization (RFMO) to arrange the placement of an observer on board a fishing vessel for all or part of its voyage. The observer will typically be from another State, although this need not always be the case, and will be able to watch the fishing activities, and to inspect the catch. The observer would also have the ability to report back to the RFMO in respect of any possible breaches of fisheries conservation measures that occurred on board the vessel. It is important to note that an observer has no ability to affect the conduct of fisheries operations on board a vessel, nor does the observer have a power of arrest. The observer’s presence is passive, and the report they provide is typically factored into discussions by State parties at meetings of the RFMO, rather than the report being used directly as the basis for punitive action by the flag State.5 An example of an observation and inspection scheme in action can be found in the Convention on the Conservation of Antarctic Marine Living Resources6 (CCAMLR). The Convention itself provides for the scheme, under Article XXIV, although the details in relation to its operation are limited, as the State Parties

4  A short contemporary summary of RFMO practices can be found at RFMO Report Card: On Governance of Bycatch and Discards by Regional Fisheries Management Organizations, August 2012, http://www.lenfestocean.org/sites/default/files/lenfest_rfmo_en_20120816_x1a.pdf. 5  See S.B. Kaye, International Fisheries Management (The Hague: Kluwer, 2001), 389–397. 6  Convention on Antarctic Marine Living Resources, 1329 UNTS 48.

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chose to leave the mechanics of such a scheme to a later date.7 The Convention did however prescribe three principles under which the scheme would operate:

· cooperation between States to establish procedures for boarding and

inspection, and for flag State prosecutions, consistent with international practice;8 observation and inspection of vessels engaged in harvesting or research;9 and inspectors remaining subject to jurisdiction of the member State of which they are nationals, and reports from them being transmitted to the Commission.10

· ·

The scheme itself took over half a decade to bring to fruition.11 It was formally adopted by the State parties in 1989, eight years after the Convention entered into force. It was to be operated under the auspices of a Standing Committee

7   Article XXIV(1), CCAMLR provides:  “In order to promote the objective and ensure observance of the provisions of this Convention, the Contracting Parties agree that a system of observation and inspection be established.” 8   Article XXIV(2)(a), CCAMLR provides:  “Contracting Parties shall cooperate with each other to ensure the effective implementation of the system of observation and inspection, taking account of the existing international practice. This system shall include, inter alia, procedures for boarding and inspection by observers and inspectors designated by Members of the Commission and procedures for flag state prosecutions and sanctions on the basis of evidence resulting from such boarding and inspections. A report of such prosecutions and sanctions imposed shall be included in the information referred to in Article XXI of this Convention;” 9   Article XXIV(2)(b), CCAMLR provides:  “in order to verify compliance with measures adopted under this Convention, observation and inspection shall be carried out on board vessels engaged in scientific research or harvesting of marine living resources in the area to which this Convention applies, through observers and inspectors designated by Members of the Commission and operating under terms and conditions to be established by the Commission;” 10  Article XXIV(2)(c), CCAMLR provides:  “[D]esignated observers and inspectors shall remain subject to the jurisdiction of the Contracting Party of which they are nationals. They shall report to the Member of the Commission by which they have been designated which in turn shall report to the Commission.” 11  The implementation of Article XXIV was not immediate, and the issue itself was only raised at the third Commission meeting in 1984.

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on Observation and Inspection (SCOI), which in 1988 established a system of observation and inspection.12 The system provides for the designation of qualified individuals as inspectors and observers who may be placed aboard vessels engaged in scientific research or harvesting in the CCAMLR area.13 Inspectors are drawn from a register maintained by the CCAMLR,14 must be nationals of the State party nominating them,15 and must speak the language of flag State of the vessel to be observed or inspected.16 When aboard a vessel, an inspector remains solely subject to the jurisdiction of their nominating State.17 Each party must provide prior notification of all vessels intending to enter the CCAMLR area to harvest resources during the year commencing 1 July, by 1 May of the same year.18 Any such vessels are potentially subject to inspection. The inspector has wide powers in respect of access, but not enforcement. Inspectors may observe and inspect the catch, the gear used, data collected, and any records and reports on catch and location data.19 Inspectors may also photograph alleged violations of conservation measures and affix identification marks to alleged gear used in contravention of conservation measures.20 12  CCAMLR, Report of the Seventh Meeting of the Commission (Australia, 1988), 111–121. The SCOI recommendations were adopted by States Parties the following year into: CCAMLR, Report of the Seventh Meeting of the Commission (Australia, 1988), 29–36. 13  Items I(a) and III, Observation and Inspection System: reprinted CCAMLR, Report of the Seventh Meeting of the Commission (Australia 1988), 30. Inspectors can be either placed aboard, or inspect from a vessel under their own State’s flag. Items I(d), I(e) and III(a), III(b) and III(c), Observation and Inspection System. See also R. Rayfuse, “Enforcement of High Seas Fisheries Agreements: Observation and Inspection under the Convention on the Conservation of Antarctic Marine Living Resources,” International Journal of Marine and Coastal Law 13, no. 4 (1998), 579–589. 14  Item II, Observation and Inspection System. 15  Item I(c), Observation and Inspection System. This is consistent with Article XXIV(2)(c), CCAMLR. 16  Item I(d), Observation and Inspection System. This provision appears to assume that the captain and crew also speak the language of the flag State. 17  Item I(c), Observation and Inspection System. This is consistent with Article XXIV(2)(c), CCAMLR. 18  Parties must provide information including the name of the vessel, the call sign of the vessel registered with appropriate flag State authorities, the home port and nationality of the vessel, the owner or charterer of the vessel, and notification that the vessel’s master is aware of the conservation measures in force for the areas where the vessel will be harvesting. Item IV, Observation and Inspection System. 19  Item VI, Observation and Inspection System. 20  Item VI(e), Observation and Inspection System.

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In the event a breach is observed, the inspector is only empowered to alert the master of the vessel of the breach, and to log it in the official inspection report.21 This report is transmitted to the flag State from the inspector’s State via CCAMLR, although the flag State can comment upon the report prior to its formal consideration at a Commission meeting.22 Enforcement action is only the responsibility of the flag State. What is clear from this system is that, although the inspector has wide powers to collect evidence of a breach, only the flag State has the right to proceed to prosecute an offence. There is no requirement upon the flag State to take any action, even when presented with conclusive evidence of the most egregious breach. This demonstrates the significant limitation inherent in the inspection and observation system under the CCAMLR. b Boarding and Referral to Flag State The next type of cooperative response vests an ability to board and inspect in a third State, but it continues to leave enforcement action in the hands of the flag State. To some extent, this type of action superficially resembles the placing of an inspector aboard, but the reality of the intervention is a little more involved. Upon the high seas, there are substantial restrictions upon the boarding of a vessel by any ship other than a Government vessel of the vessel’s flag State. The circumstances where a boarding can be undertaken are extremely limited, and are largely directed at Stateless vessels or with respect to serious international crimes such as piracy or the slave trade. In the ordinary course of events, without the concurrence of the flag State, a boarding to do anything more than establish identity is contrary to international law. The concurrence of the flag State can be supplied in a variety of ways. First, it can be achieved by way of a bilateral agreement between the flag State and the boarding State. Such an agreement would be a treaty-level document, and would permit a right to stop and board in certain circumstances. The most widely cited examples of these are the agreements between the United States and a range of largely open registry States to permit boarding to investigate for

21  Item VIII, Observation and Inspection System. 22  Item IX, Observation and Inspection System. These procedures were amended in 1992, 1996 and 1997 to provide for time limits on the submission of reports, and expedition of consideration of reports by flag States. See CCAMLR, Report of the Eleventh Meeting of the Commission (Australia, 1992), 94; see also Rayfuse, supra note 14, 593.

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the presence of weapons of mass destruction or their precursors, which are not directed at fishing activity.23 Second, multi-lateral agreements could be used to provide the consent of the flag State to a third party. This is the most common way such boarding permission is typically achieved, and for which a number of examples can be identified. For example, under Article 21 of the United Nations Fish Stocks Agreement,24 States’ parties to a regional fisheries management arrangement effectively authorise other State parties to board and inspect their fishing vessels while fishing on the high seas, in the area covered by that arrangement.25 If a boarding were to take place pursuant to Article 21 in relation to violations of any conservation measures, any evidence is secured and the flag State notified.26 The flag State then has a limited period in which to initiate an investigation itself, or, to authorize the inspecting State to do so.27 Serious violations,28 which are not the subject of a response by the flag State, could see a vessel directed to the nearest appropriate port.29 In practice, few boardings under Article 21-style arrangements appear to have taken place. That this situation is so should not be surprising. First, the efficacy of undertaking boardings in these circumstances is still dependent upon the flag State undertaking a prosecution—a circumstance that would 23  For a background and links to the agreements see the website devoted to the topic maintained by the State Department, http://www.state.gov/t/isn/c27733.htm (February 2013). 24  United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 88 [hereinafter UNFSA]. 25  UNFSA, Articles 21(1) and 21(2); see also H.L. Brown, “The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: An Analysis of International Environmental Law and the Conference’s Final Agreement,” Vermont Law Review 21 (South Royalton: Vermont Law School, 1996), 547, at 583. 26  UNFSA, Article 21(5). 27  UNFSA, Article 21(6). 28  The term “serious violation” is defined to include nine offences, including: fishing without a valid authorization from the flag State; failing to maintain accurate records of the catch as required by the regional fisheries organization; fishing in a closed area, during a closed season, or without or beyond an authorized; fishing for a stock which is prohibited or subject to a moratorium; using prohibited gear; falsifying or concealing the markings, identity or registration of the vessel; concealing, tampering with, or disposing of evidence relating to an investigation; multiple violations which constitute a serious disregard of conservation and management measures; and, other violations specified as such by the regional organization. UNFSA, Article 19. 29  UNFSA, Articles 21(8) and 21(10).

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not be certain without prior arrangement between the States Parties. There has been no real practice where boardings have been derived from an opportunistic encounter at sea. Second, few States will be interested in undertaking difficult enforcement operations far from home, in waters beyond their national jurisdiction. c Boarding and Arrest by a Third State The most rare and invasive form of cooperative enforcement is one in which one State empowers another to act upon its behalf and effectively places itself in the position of the flag State. This is essentially accomplished by using another State’s vessel and personnel to undertake boarding and arrest. The ultimate prosecution of arrested individuals is still retained by the coastal State, but all elements prior to the handover of arrested persons and their vessel is in the hands of a third State. This mechanism gives tremendous reach of enforcement, as in addition to a coastal State’s own platforms, it may be able to make use of the ships and aircraft of a third State. There are a number of issues to be considered in such a situation. First, the jurisdictional space in which such activities might occur. In the ordinary course of events, there is no freedom of navigation in the territorial sea of a coastal State for foreign ships. A right of innocent passage can be asserted under Article 19 of the Law of the Sea Convention, but undertaking enforcement operations will manifestly fall within the list of activities inconsistent with such passage. As such, any enforcement arrangement will need either (1) not to be applicable to illegal fishing in its territorial sea, or (2) to provide the flag State with an authority to undertake actions beyond what is permitted by innocent passage.30 Second, mechanisms need to be in place to facilitate consistency between the flag State and the coastal State’s laws. The use of another State’s personnel in enforcement will naturally require harmonization of laws with respect to matters such as the appropriate use of force, search and evidentiary matters, custodial matters and handover, and, the liability of personnel in the event of an authorized activity taking place. Each of these matters has a substantial impact upon a specific operation. A prosecution may ultimately fail if there are breaches of rules of evidence or in the treatment of arrested persons. In addition, future cooperation may be jeopardized if personnel undertaking a boarding or arrest are pursued for criminal or civil violations through the coastal State’s courts. 30  This situation is dealt with explicitly in the 2007 Australia-France Agreement, see infra.

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Finally, although an enforcement operation is being undertaken, it may be assumed that a flag State will not wish to prejudice the sovereign immunity of its vessel. Although a third State may be asserting jurisdiction for the purposes of an enforcement operation, a flag State will not generally wish to consent to any action that might create a situation where the coastal State’s domestic laws had any application against their ship.

Case Study: Ad hoc Cooperation—South Tasman Rise Disputes

To the south of the large Australian island of Tasmania, the continental shelf extends a substantial distance to the south, in an area known as the South Tasman Rise. The area of relatively shallow water extends a little over 200 nautical miles from the territorial sea baselines around Tasmania’s south-eastern coast, and consequently there are rich fishing grounds in waters just outside Australia’s EEZ. These waters provide a habitat for the orange roughy, a species that has been heavily fished commercially around southern Australia and New Zealand since the early 1980s. The orange roughy is an unusual fish, whose life cycle has impacted efforts at commercial exploitation. The species is extremely long-lived, and breeds only when decades old, meaning that its exploitation was unsuited to a more common pattern of size being used as a designator of breeding maturity. Fullsized orange roughy might be decades away from breeding, and their removal from the biomass prior to reaching sexual maturity had implications for the stock’s ability to regenerate. Unfortunately, the details of the orange roughy’s life-cycle were not fully understood when commercial exploitation began. As a result, stocks in waters proximate to Australia and New Zealand were heavily overfished. This made more remote stocks, like those on the South Tasman Rise, very appealing to fishing vessels. The disputes concerning orange roughy exploitation on the South Tasman Rise both have their origins in same element that was responsible for the Estai dispute between Spain and Canada.31 That is, a fishery with a straddling stock extending just out of a coastal State EEZ, where the coastal state is concerned to try to limit exploitation of a threatened stock, and the distant water fishing nations (DWFNs) seek to exploit the stock in the waters beyond national regulation. In 1997, the South Tasman Rise fishery, just outside the Australian EEZ was targeted by New Zealand fishing vessels. The Australian response was to 31  See the summary of the facts given by the ICJ in subsequent litigation arising out of the case in Fisheries Jurisdiction Case (Spain v Canada) ICJ Reports (1998), 432 paras. 13–22.

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raise the matter at a diplomatic level with New Zealand, and attempt to negotiate a solution.32 A more forthright response, along the lines of the Canada with the Estai arresting the vessel in international waters, was not pursued, as Australia endeavoured to remain within the bounds of accepted international practice. Rather negotiations, consistent with Article 116 of the Law of the Sea Convention were initiated, and a mutually acceptable solution was reached. Early in 1998, the two States concluded an Arrangement, which provided precautionary catch limits for orange roughy in the areas beyond the Australian Fishery Zone, and the collaboration of the two States in a research programme to better manage the stock.33 The arrangement has subsequently been continued, and cooperation on the management of the fishery has also continued.34 The travails of the orange roughy on the South Tasman rise were by no means ended in 1998. The following year, vessels flagged in States outside the region began to take an interest in the stock, again just outside the Australian Fishery Zone. In 1999, at least four vessels were observed operating on the high seas portion of the South Tasman Rise, fishing for orange roughy. The vessels were flagged in South Africa and Belize, and the Australian Government immediately approached these two States, to request that the vessels cease fishing orange roughy. The basis of the requests was that the stocks were the subject of an international management regime with New Zealand, and that it was appropriate for South Africa and Belize to desist pending their participation in negotiations to assist in the management of the fishery consistent with Article 116 of the Law of the Sea Convention. The response from both States was encouraging. South Africa requested that its vessels cease fishing, on pain of revocation of high seas fishing licences. This sanction was ultimately applied. Belize requested its vessel to cease fishing, to no avail, whereupon it deregistered the vessel, and requested Australia, with a formal written authorization, to enforce Belize law on its behalf if the vessel continued to fish. Shortly after the authorization was given, the vessel departed.35 The incidents are good examples of the type of ad hoc cooperation that may 32  See See Austl. Gov’t Dep’t of Agriculture, Fisheries and Forestry, Fishery Status Reports 2007, http://data.daff.gov.au/brs/data/warehouse/brsShop/data/19_FSR07_strtf.pdf. 33  Done on February 18, 1998, expired February 28, 1999, reprinted at http://www.dfat.gov .au/geo/new_zealand/roughy.pdf. 34  The TAC (total allowable catches) dropped dramatically from 2400 tons in 1999 to only 200 tons in 2006–7, and even this modest level was not reached. Australia and New Zealand agreed to a TAC of zero tons in 2007–08 and indefinitely thereafter. See Austl. Gov’t Dep’t of Agriculture, South Tasman Rise Trawl Fishery, 239–241 (2007). 35  See Australian Yearbook of International Law 20 (Canberra: Australian National University College of Law, 1999), 422–423.

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be possible to deal with managing fisheries. In both cases, Australia lacked the regulatory responsibility to unilaterally enforce conservation measures on the South Tasman Rise, as the waters were beyond national jurisdiction.

Case Study: Enforcement Cooperation—Niue Treaty

The Niue Treaty36 was concluded in 1992 with a view to assist the States of the South Pacific to patrol and enforce fisheries laws within the vast areas of maritime jurisdiction within their EEZs. The purpose of the Niue Treaty to facilitate cooperation is explicitly stated in Article III: 1. 2.

The Parties shall cooperate in the enforcement of their fisheries laws and regulations in accordance with this Treaty and may agree on forms of assistance for that purpose. The Parties shall cooperate to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement. Where appropriate, fisheries surveillance and law enforcement will be conducted in accordance with such regionally agreed procedures.

The cooperation is made manifest in a variety of ways. First, there is cooperation on the dissemination of data about fishing activities throughout the region. This allows States to be more effective in their enforcement activities. This is particularly valuable where States have few platforms to conduct enforcement. Cooperation through boarding and arrest is considered in Article VI. It provides in relevant part: 1.

A Party may, by way of provisions in a Subsidiary Agreement or otherwise, permit another Party to extend its fisheries surveillance and law enforcement activities to the territorial sea and archipelagic waters of that Party. In such circumstances, the conditions and method of stopping, inspecting, detaining, directing to port and seizing vessels shall be governed by the national laws and regulations applicable in the State in whose territorial sea or archipelagic waters the fisheries surveillance or law enforcement activity was carried out.

36  Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region available at http://www.ffa.int/system/files/Niue%20Treaty_0.pdf.

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Vessels seized by another Party pursuant to an agreement under paragraph 1 of this Article in the territorial sea or archipelagic waters of a Party shall, together with the persons on board, be handed over as soon as possible to the authorities of that Party.

In essence, Article VI provides that a State Party can, under the Niue Agreement provide for the boarding and arrest of vessels flying its flag by an enforcement vessel of another State through the mechanism of a Subsidiary Agreement. Such an Agreement spells out the circumstances and nature of the use of a power of boarding and arrest. The Subsidiary Agreement empowers the vessels of one State Party to undertake EEZ enforcement operations on behalf of another State, effectively widening the range and number of enforcement vessels that can undertake enforcement operations. There are a number of limitations with the effectiveness of the Niue Treaty. First, there are very few Subsidiary Agreements that subsist on a permanent basis.37 Some Agreements have been negotiated as temporary arrangements, but even these have been few and far between. Second, even with a larger number of Subsidiary Agreements, there is still a dearth of vessels to undertake enforcement operations. For example, during operation Tui Moana 12, which was designed to give effect to the Subsidiary Agreement between the Cook Islands and Samoa, vessels from the two States were joined by RNZN ships, RNZAF aircraft, French and American patrol aircraft.38 While encouraging that such an operation took place at all, had the efforts been left to Samoa and the Cook Islands, there would have been very little impact given their relative paucity of equipment and platforms to patrol a vast area. The limited number of Subsidiary Agreements has undermined the effectiveness of the Niue Treaty, as it limits the efficacy of cooperation to essentially data exchange and related activities. This has long been a concern, and has spurred along efforts to negotiate a multilateral Niue Treaty Subsidiary Agreement. The negotiation of a general multilateral Subsidiary Agreement 37  For example, the Te Vaka Toa Arrangement between the Cook Islands, New Zealand, Niue, Samoa and Tokelau was only finalized in July 2011. See New Zealand Ministry of Foreign Affairs and Trade, Developing and Protecting Marine Resources, http://www .aid.govt.nz/media-and-publications/development-stories/october-2011/developing-andprotecting-marine-resources (last accessed October 20, 2014). The text of the arrangement is available at http://www.tevakamoana.org/sites/default/files/downloads/te-vaka-toaarrangement.pdf. 38  “Fisheries Surveillance Mission Accomplished- Operation Tui Moana,” Herald Weekly 608, March 21, 2012, http://www.ciherald.co.ck/articles/h623d.htm.

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has been afoot since 2009,39 and was opened for signature in November 2012.40 The new Agreement may be a boon to the operation of the Niue Treaty, as it would see a significant rise in the use of Article VI of the Treaty, and increase the level of enforcement operations in the South Pacific.

Case Study: Enforcement Cooperation—Australia-France Southern Ocean Agreements

The remoteness of the far south of the Indian Ocean has encouraged cooperation between Australia and France and so far that represents the most complete level of cooperation between States with interests in managing the fisheries in and around their respective EEZs. This ad hoc cooperation has been built upon by Australia and France in respect of their possessions in the Indian Ocean sector. Both States concluded a treaty in 2003,41 providing for continuing cooperation in surveillance,42 intelligence,43 and scientific research.44 This arrangement will permit a speedier response to Southern Ocean cooperation, and allow both States to make more efficient use of precious assets in such a remote region. More controversially, the treaty also provided that one State could authorise vessels of the other to continue a hot pursuit through their territorial sea, providing no enforcement action took place within the territorial sea.45 This may be inconsistent with the letter of Article 111 of the Law of the Sea Convention, but as none of the hot pursuits undertaken to date have passed through a third State’s territorial sea the legality of the provision has not been tested and is still moot. 39  “Update on the Use of Information Exchange in combating Illegal Fishing,” Pacific Islands Law Officers’ Network, http://www.pilonsec.org/index.php?option=com_content&view= article&id=98:update-ntsa&catid=3:pacific-law-and-justice-news&Itemid=94 (last accessed October 20, 2014). 40  Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific [2014] ATNIF 25. 41  Treaty between the Government of Australia and the Government of the French Republic on cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard and McDonald Islands, Australian TS No. 6 (2005) [hereinafter Australia-France Cooperation Treaty]. 42  Australia-France Cooperation Treaty, Article 3 and Annex I. 43  Australia-France Cooperation Treaty, Article 5. 44  Australia-France Cooperation Treaty, Article 3(5) and Annex II. 45  Australia-France Cooperation Treaty, Article 3(3).

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The treaty was successful, and was followed up with a more ambitious arrangement in 2007. Australia and France entered into a subsequent agreement to provide for cooperative enforcement within the EEZs of Australia and France in the Southern Indian Ocean.46 The reach of the treaty is of interest. Cooperative enforcement is defined as: “Cooperative enforcement” means fisheries enforcement activities such as the boarding, inspection, hot pursuit, apprehension, seizure and investigation of fishing vessels that are believed to have violated applicable fisheries laws, undertaken by one Party in cooperation with the other Party. The definition makes it clear that the 2007 Agreement directly encompasses apprehension, seizure and investigation. As such, there is cooperation, with the policing elements up to handover of the offending vessel and its crew to the other party, and prosecution of offences through the coastal State’s domestic courts.47 This is a remarkable level of cooperation. The Agreement deals with a range of matters that are designed to ensure the smooth running of any cooperative enforcement operations. Most importantly, there is a requirement that an appropriate fisheries officer of the coastal State be aboard the enforcing vessel. This presence is important, as it gives the coastal State a scintilla of its own enforcement mechanisms within the enforcement activity undertaken upon its behalf. That said, the Agreement does not create a fiction of the single official exercising jurisdiction alone. Article 5 makes it clear that jurisdiction is being exercised by the other party

46  Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands, Australian TS No. 1 (2011) [hereinafter, Australia-France Enforcement Agreement]. 47  Vessels seized by a Party pursuant to Article 3 in the maritime zone of the other Party, or following a hot pursuit undertaken on behalf of the other Party pursuant to Article 4, shall, together with the persons, equipment and any documents and catch on board, be handed over as soon as possible to the authorities of the other Party. Australia-France Enforcement Agreement.

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in the coastal State’s EEZ, although every effort would be made to comply with the laws of the coastal State.48 The Agreement deals with a range of aspects of cooperative enforcement that are also important. First, the officers undertaking the enforcement are given immunity for any actions they undertake in the course of enforcing the coastal State’s law. This is an important safeguard in facilitating cooperation, as well as in maintaining the sovereign immunity of the warship undertaking enforcement.49 It notes that cooperation is ordinarily assumed to have the cost borne by the enforcing rather than the coastal State. This would seem to suppose that both States will undertake cooperative operations to an approximately equal extent, although the Agreement does foresee some adjustment might need to be necessary if too much of the burden were to be borne by a single State.50 The Agreement has now been on afoot for some time, and there are reports of its having been utilised in enforcement actions, although with little public fanfare. Given the two States concerned have similar capacities in the region at in issue and face similar challenges in combating illegal fishing in their EEZs, there is every reason to believe this effective cooperative regime will continue for the foreseeable future. Conclusion Cooperation in maritime enforcement is certainly growing, but to date examples beyond the most basal are relatively rare, and largely restricted to either areas that are very remote, or areas where vast EEZs are essentially unpatrolled by extremely small States. Even in these unusual circumstances, anything beyond very simple cooperation is almost non-existent. Even an arrangement such as the Niue Treaty, which has existed for well over a decade, with the obvious and stated aim of facilitating cooperative enforcement, has largely gone unused. The reluctance of States to surrender any of their prerogatives to uphold their sovereign rights is certainly very strong and cannot be under48  Article 5(1) of the Australia-France Enforcement Agreement provides:  “1. The Party whose authorized vessel, and its crew, is undertaking cooperative and enforcement activities in accordance with this Agreement, shall take all appropriate measures to ensure that the laws of the other Party are observed and respected.” 49  Australia-France Enforcement Agreement, Article 5(2). 50  Australia-France Enforcement Agreement, Article 8.

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estimated. Given the limited capacity of many States to effectively police their EEZs, many have great incentive to embark upon cooperative measures, and so it is telling that relatively little actual progress has been made. That said, there is still some reason to be optimistic. The recent efforts to provide for a permanent subsidiary agreement to the Niue Treaty, and the Australia-France Agreement demonstrate that cooperation as a solution is still an avenue for some States. In the far flung reaches of the world’s oceans, the prospect of cooperative measures to resolve the difficulties of enforcement are still being considered, and actively used to clamp down on illegal fishing. Perhaps in time, they may provide a way forward for greater cooperation.

Part 7

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Chapter 17

A Remembrance of Stefan A. Riesenfeld John Briscoe



Stefan A. Riesenfeld

If a Nobel Prize were given in law, it was said more than once, Stefan Riesenfeld would have taken it twice, at the least. In 1975, when Steve had twenty-four more years of productive life ahead, Richard Jennings wrote that Riesenfeld had “produced more quality research than the entire faculties of many firstrate law schools. He is the closest approximation to a law faculty, a research center and a law revision commission that can be found in a single human being.”1 Riesenfeld cared for teaching as passionately as for his research and writing. He gave of his time and talents to his adopted country as he did to his * Law of the Sea Institute, University of California at Berkeley; Adjunct Professor, Hastings College of the Law; member, Briscoe Ivester & Bazel LLP, San Francisco. This essay is based in part on a keynote presentation delivered on October 12, 2013 to the conference, “Science, Technology, and New Challenges to Ocean Law,” sponsored by the Law of the Sea Institute at the University of California, Berkeley and the Korea Institute of Ocean Science and Technology, and held in Berkeley, California. 1  R. Jennings, “Stefan A. Riesenfeld—In Tribute,” California Law Review 63 (1975): 1391–92.

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students—with a generosity bordering on the prodigal. He was a charming, often wicked wit. He was a character that Dickens or Twain or Hammett would have invented, had they had the wit. Much has been written about Riesenfeld, but it is too little. For one thing, among Steve’s forty books there is no autobiography. For another, there is yet no proper biography. When asked eighty years ago to give a talk on Elihu Root to the Bar Association of the City of New York, Philip Jessup’s response was to write a two-volume biography of Root.2 Jessup’s work sprang from the impulse to record the life of a great man, and from his affection for Root. A right biography of Steve Riesenfeld would also require two volumes, at least. And it would spring from an equal affection. That biography remains to be written. (His life was inexplicably omitted from Roger Newman’s The Yale Biographical Dictionary of American Law, published in 2009).3 On this occasion there is not time or space for anything approaching a proper biography of Steve Riesenfeld; bearing in mind the limitations of a brief memorial tribute, this paper relates selected highlights of Steve’s rich life bookended, more or less, by two of his many enormous contributions to the law, in this case contributions to the law of the sea. One was early in his career, in 1942, the other occurred 42 years later, when Steve still had fifteen vigorous years ahead of him. Stefan Albrecht Riesenfeld, before or behind a twin brother, was born in Breslau, Germany (now Wroclaw, Poland), on June 8, 1908. His earliest memory was sitting on his father’s shoulders to watch Kaiser Wilhelm II (nephew of the reigning King Edward VII of Great Britain) ride a horse gleaming with armor through Breslau to dedicate a hall celebrating the one-hundredth anniversary of the defeat of Napoleon. After the First World War, in which his father was killed, Steve studied at the university in Breslau (now the University of Wroclaw), and received the Dr. iur. summa cum laude in 1930. This 22-year-old’s dissertation was published two years later (and it wasn’t his first publication). In that year of 1930, Riesenfeld traveled to The Hague—at his own expense, he would invariably remind us—to attend as a spectator the League of Nations Conference for the Codification of International Law. He was particularly interested in the sessions striving to draft the first multilateral convention on the international law of the sea. In those last years of the Weimar Republic, Steve practiced with a Berlin commercial-law firm, where he volunteered time to the government to work on 2  Pers. comm. with author; Philip C. Jessup, Elihu Root (New York: Dodd, Mead and Co., 1938). 3  Roger Newman, The Yale Biographical Dictionary of American Law (New Haven: Yale University Press, 2009).

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reforms of the German Civil Code. During an academic stint at the University of Milano, where Steve earned the Dott. in giur. in 1934, he met Boalt Hall’s Max Radin who, conversing with Steve in German, told him that Edwin Dickinson, then the dean of Boalt Hall, was searching for a research associate who could work in German, Italian and French. Steve could do so. Dickinson soon offered Steve a position in California. Cognizant of the accession of the Third Reich in Germany the year before, Steve eagerly accepted. It was when Steve arrived in Berkeley in 1935 that Dickinson learned that Steve, fluent in German, Italian and French, knew no English. But English soon became Steve’s fourth language, en route to seven, or more; who knows how many languages Riesenfeld had mastered by the time he reached his nineties? He not only served as Dean Dickinson’s research assistant, but enrolled as a student at Boalt Hall as well, notwithstanding his two European law degrees, and he subsequently graduated in 1937 at the top of his class, at the same time earning the degree of Master in Public Policy. In 1938—just three years after Steve had taken up the study of our mongrel language English—the California Law Review published a review Steve had written of Julius Goebel’s Felony and Misdemeanor, a treatise on criminal law. His review was characteristically brilliant, and succinct. Steve began, “Wagner’s Ring [des Nibelungen] was composed, as one knows, backwards.”4 Then Steve went backward in time in legal history to make his point. It was characteristic of Steve’s scholarship that he would go backward, to the root of law, to trace its present meaning, only then to suggest its forward arc. It was also characteristic that in writing “as one knows,” he would seek to take the “I” out of his work. (The book review was not, it ought to be mentioned, Steve’s first writing published in the California Law Review. Its last sentence did, however, give a glimpse into his acute, and sometimes acerbic wit). Later in his career he would show that, just as Goebel had deficiencies, the great English legal scholar Maitland was wrong in his reading of certain ancient precedents.5 Riesenfeld was not cowed by the wrong writings of dead masters, less still by those of living ones.

4  Stefan A. Riesenfeld, “Review Essay: Goebel, Felony and Misdemeanor. A Study in the History of English Criminal Procedure,” California Law Review 26 (1938). 5  Riesenfeld, “Individual and Family Rights in Land during the Formative Period of the Common Law,” in Essays in Jurisprudence in Honor of Roscoe Pound (1962), 439.

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In 1942 Steve published the first bookend of his monumental career. The volume, Protection of Coastal Fisheries under International Law, was written in English, and is one of the masterpieces in the modern law of the sea. In it he began by ignoring Justinian—because Justinian and the Romans ignored the subject—and started instead with the Fourteenth Century scholars Bartolus and Baldus, proceeding on to Hugo DeGroot, our Grotius, and the more modern writers. In this sweeping, 300-page work, Steve surveyed the entire historical seascape of western coastal fisheries law. He explained in his Preface the modest goal of this unsurpassed piece of scholarship: The following study has a somewhat curious history. It was commenced in 1936.

…

While the data in the following pages were [. . .] assembled as, and even now do not pretend to be more than, an annotated digest and bibliography, I am hoping that they may be of value to other students of the problem and of international law in general. It was been my endeavor to arrange the material in a logical and scholarly fashion and to analyze it from a critical and historical point of view, without developing a “thesis.” The study was completed for the most part in December of 1939. My appointment to the University of Minnesota Law Faculty and the resulting difficulties of access to the great eastern libraries among other factors, unfortunately delayed my giving the manuscript its final form. Meanwhile the present war has broken out and, in my opinion, has largely destroyed the very foundations upon which international law rested in its classical conception as constituting the legal order of the community of nations. A book such as this might seem therefore to be practically useless. Yet all of us hope that a new and better international organization will take the place of the old order. One of the chief tasks of the future will be to avoid carefully the many shortcomings and weaknesses, which were inherent in the old system. It can probably be said without exaggeration that the law of territorial waters has been one of the most unsatisfactory portions of international law. At least this is the conviction, which I gained while working on the subject. In hardly any other branch of international law do national egotism, rash generalizations and insufficient consideration of basic questions seem to have caused so many conflicts and uncertainties. Even in the rare instances where a rule seemed to be somewhat crystallized, its

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acceptance as such appeared to be due more to sheer repetition than to sound tradition.6 The reader can hear in these brief passages Riesenfeld’s humility of purpose (he had, on the other hand, no humility about his intellectual prowess), his hope for the future of mankind, his worry over the feebleness of the law of the sea, and his mastery, so quickly, of a direct, often elegant English prose style. The work, he tells us, was begun in 1936—just a year after he had taken up the study of English, the year before he graduated from Boalt Hall—and finished three years later, at the end of 1939. In his swift attainment of a crystalline English prose style, Stefan Riesenfeld was our Joseph Conrad. The three-year hiatus between Riesenfeld’s completion of the work and its publication is itself grist for a great story, too long to be indulged in here. An abbreviated account will have to suffice. In the years leading up to the Japanese attack on Pearl Harbor, one major source of tension between Washington and Tokyo was Japanese-flagged factory ships operating in the Bering Sea and Bristol Bay, Alaska. In 1936, the Institute of Pacific Relations (IPR), an organization in which the Washington State and Alaska salmon industries had considerable influence, commissioned a research paper on the subject of the three-mile rule of territorial waters, or “marginal seas” in older parlance. Rigid adherence to the three-mile rule would permit the Japanese factory ship “ravaging” of the fishing grounds just beyond three nautical miles from shore, in Bristol Bay, on the Bering Sea coast, and even within Cook Inlet up to Anchorage. Professor Joseph Walter Bingham of Stanford University was awarded the contract to write the paper, and he engaged the young Steve Riesenfeld as his research assistant. As Harry Scheiber wrote in 2008, “As for Riesenfeld, the project developed into an opportunity for him to pursue the research question well beyond immediate purposes; and ultimately, with Bingham’s approval and support, Riesenfeld produced his great historical and jurisprudential treatise, Protection of Coastal Fisheries under International Law. The book was completed in 1939, but for reasons essentially political it was not published until 1942.” Professor Scheiber—in full disclosure, he is the Stefan A. Riesenfeld Professor of Law (Emeritus) at Berkeley Law—then writes that internationallaw scholars in “the traditionalist camp” on the IPR board “were aghast” at what they saw as Riesenfeld’s attack on the rule of law, specifically the “cannon shot” three-mile rule. The board asked Riesenfeld to accept publication with 6  Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (Washington: Carnegie Endowment for International Peace, 1942), ix–x.

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a preface by a senior scholar such as Philip Jessup, whose own monumental work on the law of territorial waters had been published some ten years earlier. Jessup would presumably have been condescending if not dismissive of Riesenfeld’s views. Riesenfeld refused. After Pearl Harbor, Riesenfeld’s position no longer seemed objectionable, and the Carnegie Endowment agreed to publish Riesenfeld’s study as a major book publication.7 While writing his monumental Coastal Fisheries, Steve took time for graduate legal studies at Harvard, where he earned a J.S.D. degree in 1940. He then accepted a teaching position at the University of Minnesota, where he taught law while in spare time earning an undergraduate degree in engineering. During World War II, Steve enlisted in the U.S. Navy, and served as a radioman and Landing Ship Tank (LST) commander in the South Pacific, displaying unerring navigation skills. Following the war he returned to teaching at the University of Minnesota, where he met and married the love of his life, Phyllis Thorgrimson Riesenfeld. Steve and Phyllis had two sons, Peter and Stefan, both scientists, and several grandchildren. In 1952 Riesenfeld accepted an offer to join the faculty at Boalt Hall. There he taught dizzyingly different courses, and wrote prolifically, until in 1976 he encountered the menacing rocks of Boalt Hall’s mandatory-retirement policy. In that year he accepted a position on the faculty of the Hastings College of the Law in San Francisco (also a University of California law school), as a member of the distinguished “Over 65 Club,” which included the famous Three P’s—Richard Powell, Rollin M. Perkins, and William L. Prosser. But Riesenfeld also managed, with consummate navigation of the rocks and shoals of the University of California bureaucracy, to finagle an annual reappointment to the faculty of Boalt Hall (UC Berkeley Law), so that he continued to teach, and write at Berkeley, until his death in 1999. By the most studious counts, Steve wrote or edited more than 40 books, and published more than 140 law-review articles, on a vertiginous array of subjects.8 The California Law Review was founded in 1912—the year of the founding of Boalt Hall. Riesenfeld was the only person to publish in the 25th,

7 Harry N. Scheiber, “Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law,” Law and History Review 26 (2008), 664–665 and fns. 51–52. 8 “Works by Stefan A. Riesenfeld,” Berkeley Journal of International Law 16 (1998), available at http://scholarship.law.berkeley.edu/bjil/vol16/iss1/7.

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50th and 75th anniversary issues of the journal—and for the 50th and 75th anniversary issues, he placed two articles in each!9 Following publication of Protection of Coastal Fisheries in 1942, Steve remained a dominant figure in the law of the sea, but along the way dabbled in other areas. I write “dabbled” with an audible chuckle. Steve dabbled in other areas as Leonardo da Vinci dabbled in engineering and music, apart from painting, his main art, as Michelangelo Buonarotti dabbled in painting and architecture, in addition to his true craft, sculpture. Steve became a worldrenowned expert in many fields other than international law. On criminal law, Riesenfeld’s critical review of Goebel’s treatise has been mentioned. On American constitutional law, Riesenfeld taught, wrote, and practiced prodigiously. As Counselor for Public International Law at the Department of State during the Carter Administration, he examined the constitutionality of the Panama Canal Treaty. During hearings on the Treaty, when he was challenged by a Member of Congress on the proper interpretation of a Supreme Court case, he replied to the Member, “If you read the case carefully, Congressman, I am quite sure you will analyze it the way I do.” Then he recited from memory the passage in question, and asked how the Congressman could disagree with his reading.10 The Congressman, needless to say, did not. During these years, the 1970s and 1980s, Steve was teaching full course loads at both Boalt and Hastings. Following Steve’s death, U.S. Department of State Deputy Legal Adviser Jamison S. Borek, in a letter to the New York Times, recalled Steve during this period. “He arranged his double class schedule so that he could fly to Washington every week and teach all his classes as well. I remember him arriving time and again on the ‘red-eye’, despite being in his 70s.”11

9   See Stefan A. Riesenfeld, “The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions,” California Law Review 25 (1937); Stefan A. Riesenfeld, “Antitrust Laws in the European Economic Community,” California Law Review 50 (1962); Stefan A. Riesenfeld, “Antitrust Laws in the European Economic Community: A Sequel,” California Law Review 50 (1962); Stefan A. Riesenfeld, “Classification of Claims and Interests in Chapter 11 and 13 Cases,” California Law Review 75 (1987); Stefan A. Riesenfeld, “The Powers of Congress and the President in International Relations: Revisited,” California Law Review 75 (1987). 10   Hearings before the Committee on Merchant Marine and Fisheries, House of Representatives, Serial No. 95–32, at 74–76 (1978). 11  Letter from Deputy Legal Adviser Jamison S. Borek to the New York Times, March 4, 1999 (copy on file with author).

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Social legislation was yet another of Riesenfeld’s intellectual and humanistic passions.12 In 1963, four years after Hawaii’s admission as a State, Riesenfeld completed his Study of the Workmen’s Compensation Law in Hawaii. That year, as a result of the study, the Hawaii Legislature enacted a comprehensive revision of the Hawaii Workers’ Compensation Law. State Senator Nadao Yoshinaga said in the late 1970s that three people were responsible “for the advancement of social progress and humane concern for the ordinary people of Hawaii, and in its efforts toward decency in human affairs.” One was a late union leader, one was Hawaii’s late Governor John A. Burns, and the third was Steve Riesenfeld.13 Bankruptcy law was another area of Riesenfeld’s expertise. In the summer of 1983 this writer worked for two weeks with Steve in Hamburg at the Max Planck Institute for Comparative and International Private Law. We were working on other matters, including preparations for the following year’s Law of the Sea Institute conference in San Francisco, but Steve was forever returning to work on the comparative law of bankruptcy. He spent many summers in Hamburg on the bankruptcy assignment and on other studies. The other great scholars of Hamburg were ever in awe of Steve. I confess my association with him served me well in Hamburg (“You are with Professor Riesenfeld? May I buy you a beer?”). Steve passed away without having finished what would have been a giant contribution to comparative law for the Institute’s publication. Nonetheless he managed to write several articles on the subject,14 two encyclopedia articles,15 and the article on foreign investments in the Institute’s Encyclopedia of Public International Law.16 Real property was another area in which Steve had great impact. In 1975 UC Berkeley Professor John Hetland wrote an impressive encomium on Steve’s contributions to the scholarship of California real property law, as if Steve

12  “Farewell, Professor Stefan Riesenfeld,” Berkeleyan, posted February 24, 1999, http://ber keley.edu/news/berkeleyan/1999/0224/riesenfeld.html. 13  Patricia K. Putnam, “Professor Riesenfeld and Social Legislation,” California Law Review 63 (1975): 1405–1406. 14  “Transnational Bankruptcy in the Late Eighties: A Tale of Evolution and Atavism,” in Comparative and Private International Law, Essays in Honor of J.H. Merriman (1990); “Recent Developments in the Bankruptcy Legislation of the P.R.C.,” in the papers of the Conference on Developments in Competition and Trade Law, held at the Chicago-Kent College of Law, 1997. 15   “Bankruptcy, Laws Concerning,” Macropaedia 694 Encyclopedia Britannica 2 (1974); “Bankruptcy Laws, Comparison of,” in Encyclopedia Britannica 15 (1988): 400–404. 16  “Foreign Investments,” Encyclopedia of Public International Law 8 (Max Planck Institute, 1985), 246.

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might have been hanging up his spurs. He would not do so for another 24 years, however. The notion that professor Stefan Riesenfeld’s contribution to the development of the law of real property and real property security can be described in a few pages—or even in a few articles—is absurd. . . . Professor Riesenfeld’s real property commentaries, articles and essays, which range from an analysis of the development of property doctrine and institutions between the advent of William The Conqueror (1066 AD) and the publication of Littleton’s Tenures (1481 AD) to an explanation of California’s complex series of deficiency judgment limitations are uniformly excellent. But I consider his most important contribution to the development of California real property law to be what, at a casual glance, might seem one of his least impressive. It is a skinny little casebook, California Cases on Security Transactions. . . . Professor Riesenfeld’s first year casebook on California real property is now in its sixth year of evolution and classroom development, a research and shakedown period which normally precedes the publication of his meticulously structured casebooks and classroom teaching materials. Steve is one of the few modern real property teachers from whom first year law students still learn the valuable and difficult historical antecedents of Anglo-American real property law, the evolution of estates and lesser interests in land, and their application.17 Many of Steve’s students said his most important contribution to American property law was his discovery and promotion of the book containing all answers to the mind-contorting questions of security interests in real property, Needleman on Mortgages. Needleman was catalogued in the Boalt Hall Library with its Boalt library identification number and, of course, its Library of Congress number. Boalt’s only copy, though, seemed always to be checked out to Professor Riesenfeld. Professor Riesenfeld must have been a stodgy, fustian fellow one would think, learned and scholarly as he was. His was the only office at Boalt Hall having a door that led directly into the library. With his arthritic, gnarled hands, his cowlick of a forelock, his never-dropped German accent, he had to have been an unfunny man.

17  John R. Hetland, “Professor Riesenfeld: Real Property and Real Property Security,” California Law Review 63 (1975), 1402–1404.

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Hardly. Needleman on Mortgages was but one of his grand jokes on generations of colleagues and students. The copy checked out to Professor Riesenfeld did not and does not exist. Nor does any other copy. The book never existed. Occasionally in class or at a conference, someone would say that the United States, or Britain or France said or proposed something or other at the 1930 Hague Conference. Unfailingly, Steve would correct the speaker, tell what exactly had been said or proposed, and by whom. Then he would add, for unneeded emphasis, “I was there!” Judge Tullio Treves recalls a lunch at Jack’s Restaurant in San Francisco 25 years ago or so with Steve and me. The lunch wandered among a glass or two of wine (I believe Steve was to teach a class at Hastings that afternoon, viz., après lunch) from mushroom soup to petrale sole to the law of real property, which latter subject brought up the most convoluted, most brilliantly decided California real-property case ever, Gerhard v. Stephens (1968).18 In that case, mineral interests had been severed from the surface estate generations before, and promptly forgotten, until oil was discovered. Of the scores of heirs of the mineral interests, many couldn’t be found. The fractional interests had denominators larger than six digits.19 A further vexing problem was an ancient common law rule: Unlike an incorporeal hereditament (say that six times fast), such as an easement or profit à prendre, a corporeal hereditament could not be abandoned by non-user. A severed mineral estate was a fee simple, like the surface estate; a fee simple was a corporeal hereditament; a corporeal hereditament could not be abandoned by non-user. Thus a mineral estate could not be abandoned by a non-user, and those scores if not hundreds of unknown unidentified owners stood in the way of orderly development of the resource. The majority opinion in Gerhard v. Stephens, signed by California Supreme Court Associate Justice Matthew Tobriner, contains one of the most lucid explanations of common-law estates in land to be found in any English-language law library, a learned explanation that unlocked the conundrum of the case. The key was the observation, discerned only upon a critical examination of ancient texts, that the expression “fee simple” actually has two different meanings in the law (three, but never mind the third).20 In the sense used for mineral estates, it does not imply a 18  68 Cal.2d 864. 19  Gerhard, for one, claimed “a 144,920 5/9 / 366201 ¾ interest in the Ashurst mineral rights.” 68 Cal.2d at 873 fn. 1. The Weber claims were mathematically simpler; they were to a 264,400/503,000 interest. Id. at fn. 2. 20  68 Cal.2d at 884, fn. 15.

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corporeal hereditament, but signifies an incorporeal hereditament; hence the estate could in fact be abandoned. Those lost mineral-interest owners had walked away from their interests. They had abandoned them. The clouds parted. Angelic harps thrummed. When over dessert and Port wine it was remarked how astute Tobriner had been, Riesenfeld feigned great indignation at the idea that the Justice, much less any clerk of his, could have had the wit to untangle that case. After lunch I skipped my three o’clock court appearance to walk over to the library to learn, as I suspected, that Steve had authored the brief that contained the authorities, and the analysis, that had disentangled the case. Once a first-year student, prowling the law library early on a fall Sunday morning, literally bumped into Steve, who at the age of 84 had entered in his clandestine way through the secret door from his office. “Pardon me,” said the student, adding observantly, “You must teach here. What is your field of expertise?” “The law,” Steve replied. The hoary volume Glad Sufferers of Fools does not name Riesenfeld. He is known to have said, on several hundred occasions, “That is the stupidest question I have ever heard.” When asked a question for a third time, his inevitable reply was, “I can explain it for you, but I cannot understand it for you.” The man could be quite the needler. Steve told stories on himself. During his Navy service as a radioman in the Pacific during World War II, the password once was “Wolf,” which Steve pronounced in his persistent German accent. As Steve told the story, on one occasion near the war’s end, a long pause at the other end of the line was followed with the other radioman saying, “Sailor, you’re lucky you’re in the Pacific.”21 Ambassador Jeff Bleich remembers Professor Andrea Peterson recalling her year taking property law from Steve. His summation of the law of adverse possession was: “You can steal land, if you do it slowly.” As for the Rule against Perpetuities: “It’s so simple I could teach it to a dog.” Twenty-five years ago Steve asked me to prepare a paper on some abjectly abstruse subject, to be delivered at a conference he was to chair. I delivered my paper, and sat back down as Steve rose to introduce the next speaker, Bob Knecht. After introducing Bob, Steve resumed his seat on the dais next to me. As Bob in his sonorous baritone began reading his paper, Steve pulled mine from in front of me to himself, and with deliberate gestures and slow nods of satisfaction pretended to read each page, to the end of the ponderous paper. Then with a mischievous grin at me (aware by now that all along the audience 21  Letter of Jamison S. Borek, supra note 11.

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had been watching Steve and paying no attention to Bob), Steve took out his pen and on the front page of my paper scrawled, in a script so large that everyone in the room knew what it was, the letter “A.” Steve smiled, nodded at me, then with a greater flourish added a bold dash after the “A.” (Only A-minus!) The audience convulsed. No one ever told the befuddled Knecht, one of the sweetest men of our generation, what on earth the commotion was about. Steve Riesenfeld practiced law. I mentioned Gerhard v. Stephens. He was the nucleus of the American brain trust in the Gulf of Maine Case decided by the International Court of Justice in 1984.22 Riesenfeld’s thousands of students may be found throughout the world, many in quite high positions. The late David Andrews, Steve’s research assistant in 1970–1971, became Legal Adviser at the U.S. Department of State under Secretary of State Madeline Albright. David Caron was Steve’s research assistant in 1982–83. David has left, only for the nonce, our Berkeley Law, our Law of the Sea Institute, to be Dean of King’s College London. Joan Donoghue, another Boalt graduate, serves as the American judge on the International Court of Justice. The School of Law at Berkeley has paid tribute to his great contributions to the teaching program and to scholarship in international law with establishment of its annual Stefan Riesenfeld Award for Outstanding Achievement and Contributions to International Law; and the Berkeley Journal of International Law organizes and publishes a Riesenfeld Symposium, to which distinguished scholars and jurists from many nations have contributed papers. In 1982, following this organization’s conference in Halifax, I succeeded in persuading Steve to serve as program chair of the 1984 Law of the Sea Institute conference, to be held in San Francisco. That 1984 conference is the other, longin-its-arrival, bookend. To refresh recollection, in late-1982, December 10 to be exact, the United Nations Convention on the Law of the Sea (UNCLOS), after eight years of negotiating, was adopted. Three months later, on March 10, 1983, President Reagan proclaimed that the United States—arguably the prime architect of the structure of the Convention—would not sign it. The Law of the Sea Institute’s conference nonetheless went forward in the summer of 1984. Steve’s files from that period show how diligently this man, then in his mid-70s, worked to put that extraordinary conference together. Steve Riesenfeld was associated with the U.S. State Department for more than 20 years, from 1977–1999. In addition to law of the sea matters, he worked 22  Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, at 246.

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on normalizing U.S. relations with the People’s Republic of China, ratification of the Panama Canal Treaty, resolution of the Iranian hostage crisis, the Egypt-Israeli Peace Accord, and argument in the landmark human-rights case, Filartiga v. Pena-Irala, 630 Fed. 2d 876 (2d. Cir. 1980). He was also instrumental in writing the constitution for Palau, during the transition period from its status as a UN Trust Territory administered by the U.S. to an independent nation. A former State Department attorney once had a vexing problem regarding riparian water rights in Nicaragua. Riesenfeld told her there was an article on point in the 1926 edition of the Munich Law Review. There was. Steve had written it, at the age of 18.23 When the United States decided to recognize the People’s Republic of China and “derecognize” Taiwan, the problem arose how to amend the thousands of laws that dealt with Taiwan so that relations between the United States and Taiwan would continue as if derecognition had not occurred. Steve’s solution was typically simple, and elegant. He suggested a law that read, “The absence of diplomatic relations or recognition shall not affect the application of the laws of the United states with respect to Taiwan, and the laws of the United States shall apply with respect to Taiwan in the manner that the laws of the United States applied with respect to Taiwan prior to January 1, 1979.” Steve’s suggestion became law. It is codified in Title 22 United States Code, at section 3303. Steve died February 17, 1999, in a local hospital near his home in Berkeley. The day before, he finished grading blue-book examinations for the bankruptcy course he had taught the previous semester.24 In 1998, on the occasion of his 90th birthday, a days-long celebration was held in Berkeley. Scores of his former students came from around the world. At the main event, a glittering dinner, Secretary of State Albright presented Steve with a Certificate of Appreciation “In recognition for his distinguished service to the Office of the Legal Adviser, United States Department of State, and for his extraordinary contribution to international law.” Such recognition was unprecedented in the U.S. Department of State. Secretary Albright’s Legal Adviser at that time was David Andrews, mentioned above, who was one of a legion of brilliant, dedicated former Riesenfeld students. It was then we learned from Secretary Albright a secret that had been kept between Steve and the State Department for 30 years: For his long years of service to the United States, Steve had never accepted a penny in compensation. 23  Letter of Jamison S. Borek, supra note 11. 24  “Farewell, Professor Stefan Riesenfeld,” Berkeleyan, posted February 24, 1999, http://berke ley.edu/news/berkeleyan/1999/0224/riesenfeld.html.

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We could pry little from him afterward about what animated this extraordinary career-long gesture of generosity toward his adopted country, silent generosity, except his mumbled gratitude for being allowed to come to the United States, to play a part in the service of law, international law especially, and of world peace.

Index Page references followed by fig indicate a figure; page references followed by t indicate a table. Aalbersberg, Bill 174 Aarhus Convention on Access to Information (1998) 264, 265 Ablan, Roque 421 Adriatic Sea: dispute between Croatia and Slovenia in 278 Age of Discovery 33 Alaska: American purchase of 330n97 Albania: delimitation agreement with Greece 276–277 Albright, Madeleine 465 Albuquerque, Afonso de 38 Alexander VI, Pope 37 Al-Khasawneh, Awn Shawkat 18, 19 American eel: categories 151; challenges of international governance 155; Convention on Biological Diversity on 154–155; distribution of 150–151; future of regional cooperation on 158–159; glass eels export market 152; habitat restoration efforts 156–157; management issues 153, 163–164; migration 152; predator-prey relationship with shark 153; scientific uncertainties about 152; stock decline 151, 156; sustainability of 155; threats to 151–152; UNCLOS provisions on 153–154; U.S.-Canada cooperation on 156, 157 American Eel Task Group 156 American-Spanish Treaty (1900) 405 Anaya, James 350 Andrews, David 464, 465 Anglo-Dutch Wars 45 Antarctica 69 Antarctic Treaty (1959) 58–59 Antarctic Treaty System (ATS) 140, 140n72 anti-submarine warfare (ASW) 51–52 Arbitration Institute of the Stockholm Chamber of Commerce 261 Arctic Council: China as observer in  369–370; as consultation platform 381; creation of 359, 369n12; decision-making

rights 363; goals of 360; Indigenous Peoples’ Secretariat 364; languages used in 363; members of 360, 361; permanent participants 360, 361 t, 363; as platform for international cooperation 382; representation of Arctic indigenous peoples 360, 362; role of observers 362, 363; working groups 360n72 Arctic countries 371n21, 371n24 Arctic Environmental Protection Strategy (AEPS) 359, 375, 381 Arctic governance: China’s interest in participation in 385, 386–390, 392–394; climate change and environmental protection in 390; collective practice 382; development of 380; establishment of international system of 383n76; improvement of 383–384; innovations on 382–383; integration and reinforcement of 380–381; lack of uniformity and general management in 373, 375–376; mechanisms of 372, 374–375; non-Arctic countries and 382; offshore resources management 352, 364–365; systemic contradictions 380; United Nation’s role in 381 Arctic navigation: costs of 326; environmental concerns 330; global economy and 325; ice breaker assistance  325n78, 326–327; investments in infrastructure upgrades 327; potentials for 327–328; uncertainty of 325 Arctic region: adaptation of Indigenous and Tribal Peoples Convention 351; Antarctic model for 368n6; area beyond national jurisdiction 383; bilateral agreements in 373–374; China’s strategy in 9–10, 377, 389, 390; climate change in 8–9, 313, 316–317, 367; climate variability in 319; commercial exploration of 69; contradictions between resource

468 Arctic region (cont.) exploitation and protection of 377–378; cooperation based on “low politics” 376; decline of sea ice cover 317–319, 317n24, 317n27, 318 fig; European Union’s interest in 383; geopolitical theory and 368n5; inadequate infrastructure in 325–326; indigenous peoples in 9, 345; international affairs in 367, 368n5, 373n32; inter-oceanic transits 322–323; jurisdictions in 9; legal contradictions in development of 378–380; maritime security 321; melt season in 317; multilateral cooperation in 373; natural resources 377; navigational opportunities 319–321, 324; Polar Bear agreement 373; prospects for legal disputes 379; provision of meteorological information 326; regional agreements 372–373; scholars on status of 382n72; sector principle 371, 371n22, 392n103; soft laws in 375; sovereign rights in 371, 379–380; trends in development of 376 Arctic Regional Hydrographic Commission 327 Arctic Treaty 384–385n78 artificial reef programs. See rigs-to-reefs programs artificial reefs 306–307 Association of Southeast Asian Nations (ASEAN) 407, 407n74 Atlantic Charter (1941) 54–55, 55n103 Atlantic marine species at risk 150, 163–164 Atlantic sturgeon: assessment of population 160; cooperative agreements on 163; global agreements on 161–162; habitat 159; management issues  163–164; migration 159–160; mortality rate 160; need for bilateral cooperation on 163; prohibition of export of caviar 162; regulatory regimes 162–163; scientific uncertainties about 160–161; threats to 160, 160n82 atomic tests. See nuclear tests Australia: cooperation with France in Indian Ocean 447; discovery of 44; in South Tasman Rise dispute 443–444

Index Australia-France Southern Ocean Agreement 447–449, 448n46, 448n47 Ban, Ki-moon 97 Bangladesh/Myanmar Delimitation Case 21, 22–23, 25–26 Barcelona Protocol concerning Specially Protected Areas and Biological Diversity (1995) 257 Barents Sea: joint venture projects in 386; Norway-Russian agreement on delimitation of 339–340 Basic Fisheries Management Regulation 87–88, 89, 90 Belize 444 Bering, Vitus 313n1 Bering Sea: Convention on the Conservation and Management of Pollock Resources in Central 388; extreme environmental conditions 315–316; geography of 314; marine ecosystem 316; navigation in 328–329; risk of environmental disasters 329–330; U.S.-Soviet dispute in 330–334 Bering Sea and Strait delimitation: 1867 U.S.-Russian Convention and 331–332, 335; 1990 U.S.-Soviet agreement 314, 335–336, 337, 337n113, 338–339; introduction of exclusive economic zones 335; maritime claims 334 fig; resolution of U.S.-Soviet boundary dispute 340; Special Areas 337, 338; USSR-U.S. marine boundary 336 fig Bering Strait: discovery of 313n1; geography of 314–315; increase maritime transit through 329; operational capabilities of Russia vs. US 343; problem of jurisdiction 341; recommendations for traffic separation scheme 342; regime of transit passage 340–341; risk of environmental disasters in 329–330; security issues 343; U.S.-Russian cooperation in 341–342; U.S.-Russian marine boundary 337 fig; vessel traffic 342 Bilateral Investment Treat (BIT) 262 Bingham, Joseph Walter 457 biodiversity 284–285

Index Bleich, Jeff 463 “Boat People”: history of 97; obligation of EU member states to save lives of 99; prohibition of refoulement of 104–105; protection of rights of 102–103; tragic accidents in Mediterranean Sea 95. See also migrants Boggs, S. Whittemore 331 Bolland, Richard 46 Bonnet, Francois-Xavier 404, 405, 406 Borek, Jamison S. 459 Bowring, Philip 400 Boyle, Alan 110 Boyle, Robert 45, 46 Bressie, Kent 249 Briscoe, John 11 Brooks, Robert 414 Bureau of Safety and Environmental Enforcement (BSEE): on artificial reefs 305; “Idle Iron” policy 303–304; Interim Policy Document (IPD) 309–310; on removal of subsea structures 305; Rigs-to-Reefs Artificial Reef Planning Tool 309–310n53 Burns, John A. 460 Bush, Vannevar 55 Bynkershoek, Cornelius van 38 Byrd, Richard E. 58 Cable Convention. See Convention for the Protection of Submarine Telegraph Cables (1884) cabled observatories 237–238, 241 Cabral, Gonçalo Velho 35 California Law Review 455, 458 Canada-U.S. Transboundary Resources Steering Committee 157; primary focus of 157n58 Canary Islands 34 carbon capture and storage (CCS): environmental risk 118; EU regulations on 118–119; European Commission report on 119–120; Netherlands’ policy on 119. See also greenhouse gas Caron, David 11, 11n5, 386, 464 Centre for the Settlement of Investment Disputes (ICSID) 261 Challenger expedition 48–49

469 Charles I, King of England 45 Charles V, King of Spain 39n35, 40 Charney, Jonathan 418, 422–423 China: Arctic strategy 9–10, 377, 385, 387–388, 389, 390–392, 393; ASEAN and 408; claims to Scarborough Reef 10; declarations on provisions of UNCLOS 425n196, 427n206; historical claims to Philippines and Vietnam waters 400n30; ice breaking fleet 377; interest in alternative navigational routes 328; as observer in Arctic Council 369–370; Polar Research Institute of 377; policy in South China Sea 401–402, 401n37, 408; relations with Philippines 406n72 409n84; rise as great power 389; scientific initiatives in Arctic 378; seafaring and exploration in dynastic 31; traditional preference for bilateral negotiation 427 China-Philippines confrontation over Scarborough Reef: China’s failure to comply with UNCLOS 430–431; China’s rejection of Philippines’ arbitration 426–427, 427n206; nature of Philippine claim 429; Philippine arbitration proceedings 426, 428–430; problem of Philippines’ jurisdiction 428 Churchill, Robin 430 Churchill, Winston 53, 54 Clean Water Act (CWA) 204 climate change: in Arctic region 8–9, 313, 316–317, 367; assessment report of Intergovernmental Panel on 110; as contributor to irregular migration 108; dangers of 111; EU laws and policies on 109–110, 112–115, 120–121; geo-engineering technology and 282; international law and 280; oceans and 110, 242; scientific innovations and 7–8; scientific view of 109 climate engineering. See geoengineering Coalition of Legal Toothfish Operators (COLTO) 142n81 coastal states: conflict of interest with other states 250; control over exclusive economic zones 247, 250; jurisdiction over artificial islands 231n134; j­ urisdiction

470 coastal states (cont.) over installations and equipment  231–232, 290–291; obligations in respect of submarine cables 219, 222, 223–224; regulation of marine scientific research 227–228; regulation of submarine cable roots and operations  219–221, 247, 249n239; sovereign rights on continental shelf 247, 250, 268 coastal zone management 256, 256n13 Code of Conduct for Responsible Fishing 133, 133n42, 135, 138, 138n65 Coito, Joel 10 Cold War: scientific research during 55–58 Columbus, Christopher 36 Commission on the Limits of the Continental Shelf (CLCS) 21, 22–24 common human concerns 390n96 Conservation Burden and Benefit Research Partnership 126n5 continental shelf: deployment of research installations and equipment on 232; natural prolongation of 24; question of entitlement 23–24; sovereign rights of coastal states on 268; UNCLOS definition of 217 Continental Shelf Convention (1958) 217n41 Convention for the Protection of Submarine Telegraph Cables (1884) 213, 215n32, 255 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) 258 Convention on Biological Diversity (CBD): on American eel management 154–155; goals of 355; indigenous participation in 357–358, 359; membership of Contracting Parties 356; observers 356; Pacific island countries and 167; partnership agreements 356–357; tasks of Working Group 358; Traditional Knowledge Information Portal 358–359, 359n65 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 153, 155, 161–162 Convention on Long-Range Transboundary Air Pollution (CLRTAP) 292 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR):

Index Antarctic Treaty System and 142–143; application of 141n79; characteristic of 139, 140; in comparison with WCPFC 139–140; conservation burden concerns 143; developing states and 143; fisheries target 142; fishing zones 141; management priorities 140, 142; members 141; mission 140; observation and inspection system  437–440, 438n8, 438n9, 438n10; parties’ obligations 439n18; power of inspectors 439–440 Convention on the Conservation of Migratory Species of Wild Animals (CMS) 158–159 Convention on the Continental Shelf (1958) 298 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) 118, 298–299 Cook, James 48 Court of Justice of the European Union  68 Croatia: dispute with Slovenia in Adriatic Sea 278 Cuchulain’s Fight with the Sea (Yeats) 123 Cyprus, Republic of: declaration of exclusive economic zone 271, 271n69; delimitation agreement with Israel 272; delimitation agreement with Lebanon 274, 276; maritime boundary with Lebanon 275 fig Damanaki, Maria 108 DART (Deep-ocean Assessment and Reporting of Tsunamis Buoys) 243 Darwin, Charles 45 Davenport, Tara 7 Davis, Ruth 6 Dean, Arthur 2 deep ocean: biodiversity of 189; buffer zone 205; characteristics of 188, 191–192; cost of exploration 193, 197; deep seabed mining 202; definition of 187, 188; discoveries in 194; diving tests 57–58; environmental damage  202; extreme pressure 192–193, 192n21; frameworks for injury to 200, 204–206, 204n74; human exploitation of 189–190,

Index 191; human impact on 187, 196; knowledge about 194–195; lack of jurisdictional boundaries in 189; lack of monitoring of 241–242; major industries in 198; management of 187–188, 199; mining exploration and regulations  202–203, 208; mitigation and restoration frameworks 196–198, 207, 208; natural resources 189, 195n34; pollution of 190; precautionary approach to 206; recovery rate of 195–196; remotely operated vehicles (ROVs) in 193; scientific research in 192–193; submarine communications cables for monitoring 243 deep-ocean submersibles 57–58, 59–60, 192n22 deep-sea voyages: Columbus expedition  36; dangers of 47, 47n61; first circumnavigation of the world 39–40; ideas of Enlightenment and 33; impact on global biosphere 34; navigation ­techniques 36; technological innovations and 32–33 Deepwater Horizon oil spill 197, 207 Del Rosario, Albert 426 Depot of Charts and Instruments 49 depth soundings 41–42 Diamond, Jordan 9, 345n Dias, Bartolomeu 35, 37 Dickinson, Edwin 455 Diomede Islands 315, 315n9, 341 Diu, Battle of 38 Donoghue, Joan 464 Dutch Republic 42–43, 44 Dutton, Peter 408 Eanes, Gil 35 Eastern Mediterranean delimitation agreements: between Cyprus and Egypt 270–271, 271 fig; between Cyprus and Israel 272, 273 fig; energy boom and 278–279; between Greece and Albania 276–277; between Greece and Italy 268, 269 fig, 270; politics and problems of 277 Eastern Mediterranean Sea: Bilateral Investment Treat (BIT) 262; climate change considerations 259; coastal zone

471 management 256, 256n13; diversity of 253; energy projects agreements in 262–263; energy sector in 254–255; environmental protection concerns 258, 265; fishing industry in 255–256; freedom of navigation concern 255; historical importance of region 253; international investments 260; management issues 259; multiple users of maritime domain 253–254; resources of 258–259; tourism industry in 256–257 East India Company 43, 43n46, 44 ecologically or biologically significant marine areas (EBSAs) 154 Ecology Law Quarterly 66 economic botany,  34 economic life: capacity of 418–419, 418n143; debates on 416–417; human habitation and 416–417; “of their own” 419n146; views of 422–423 ecosystem approach: biological and ecological dimensions 128; characteristics of 126–127; core elements of 128; to fisheries management  124–125; holistic 139; purpose of 127; roots of 126 ecosystem-based management 6, 65–66 Elcano, Juan Sebastián 39, 40 Energy Charter Treaty (ECT) 260–261, 260n26, 261, 262 Energy Community of South-East Europe 266, 266n57 energy production regulation 267 England: as dominant maritime powe 45; period of Interregnum 45; rise of Royal Navy 45–49; rivalry with Spain 43; wars with Dutch Republic 45 environmental impact assessment (EIA) 263–264 equipment: vs. installation 231 Espoo Convention on Environmental Impact Assessment in a Transboundary Context (1991) 263, 265 Euler, Leonhard,  47 European Agency for Fundamental Rights (EAFR) 106, 107 European Border Surveillance System (EUROSUR) 101–102 European Commission 82, 84–85

472 European Court of Justice: decision on driftnet case 86–87; on precautionary principle 81, 82–83, 82n74; on scientific information in law-making 78–79; on use of scientific advice 86, 87 European Economic Area (EEA),  266 European Energy Charter 260n27 European Environment Agency (EEA) 73–74, 76 European Marine Board 76, 76n44 European Ombudsman 83 European Union (EU): applications of science in rules and regulations 68–69, 68n13; approach to ocean policy decisions 79–80; Asylum and Migration Fund 106; Charter of Fundamental Rights 103–104; Common Fishing Policy 255; Common Information Sharing Environment 102; cooperation between fishing industry and scientific community 90; coordination of border surveillance activities 100–101; data collection on fishing activities 89–90; decommissioning of nuclear power plants 72; directives on offshore oil and gas operations 265, 266; distribution of population in coastal regions 71; Emission Trading System (ETS) 111; environmental policy 78, 120; fisheries management 83–84, 87–88, 89, 90, 91n114; fishery jurisdiction in 256n8; FRONTEX agency 100, 106; human rights of non-EU citizens 94; human trafficking in 96; illegal and unregulated fishing 73; illegal migrants 72, 95, 96, 97t, 98, 99; implementation of vessel monitoring systems (VMS) 93; importance of seabed interconnectors and pipelines 72; interests in Arctic region 383; Internal Security Fund 106; Joint Research Centre’s technical staff 76; law enforcement tasks in Mediterranean Sea 101–102; legal competence of member states 71; legal perspective on science and technology 65; Marine Observation and Data Network 77; marine scientific research 67, 67n9, 72; maritime

Index policy 102, 122; maritime sector in Gross Domestic Product 71n25; Memorandum of Understanding with ICES 75, 75n43; migrant and refugee policy 99–100, 103, 104, 104n173, 105, 107–108; Mobility Partnership Agreement with Morocco 101; offshore wind energy development 116–117; pollution of marine environment 73; precautionary principle in legislations 80, 89; protection of water borders 95; provision of scientific advice to international organizations 77; regulations on climate change 111–115, 112n206, 114, 118–120; regulations on shipping industry 112–113; regulations on use of scientific evidence in Court 85–86; relationships between national and European institutions 76; role of science in public policy decisionmaking 69; rules on humanitarian tasks in emergency situations 100; satellitebased vessel monitoring systems (VMS) 91, 92n116, 93; scientific and research policy 67–68, 74–75, 77; shipping industry 71, 113n211; statistics of pirate attacks 73; use of scientific information in law-making 78–79, 89, 122–123; use of technology in law enforcement 91 Evensen, Jens 1, 3 exclusive economic zones (EEZ): deployment of research installations and equipment in 232; origin of 435; rights and jurisdiction of States 131, 250–251, 250n242, 251n243, 268 Exxon Valdez oil spill 207 Federal Outer Continental Shelf Lands Act (OCSLA) 301–302 Fiji Islands: bio-prospecting activities 174, 175, 182; donors 168; implementation of Nagoya Protocol 6, 172–176, 182, 184; Locally Managed Marine Areas network 168, 174; participating partners of scientific projects 175; scientific research 173 Fiji Locally Managed Marine Protected Area network (FLMMA) 168, 172, 173, 174

Index fisheries management: benefits of 148; characteristics of 125; Common Information Sharing Environment 94; conservation measures 125, 125n4, 134–135, 136, 137; consideration of regional factors 147; in developing states  133–134; ecosystem-based approach to 88, 124; European regulations on 90; fish stocks management 85, 91; international standards for 132–133; law enforcement and technology 91–92, 93; narrow and holistic approaches to 139; regional organizations and 125; regulations on fisheries logbooks 93; use of science and technology in 85, 91. See also international fisheries law; krill fishery; Regional Fisheries Management Organizations (RFMOs) fishing: automatic identification system for vessels 92; destructive practices of 132; ecosystem impacts of 124; global agreements on responsible 132–134; illegal, unreported and unregulated 436; serious violations of 441n28 Food and Agricultural Organization (FAO) 127, 138, 146, 147 France: cooperation with Australia in Indian Ocean 447; Navy 47 freedom of the seas: doctrine of 54 French Research Institute for Exploitation of the Sea (IFREMER) 76 FRONTEX (European Union agency) 100, 106 FSM (Federated States of Micronesia). See Micronesia, Federated States of Gama, Vasco de 37, 38 Gavouneli, Maria 7 Geneva Convention (1951) on status of refugees 104n173 Geneva Convention on the High Seas (1958) 213, 215 geodetic datum 332n101, 333 geo-engineering: assessment of environmental impact 284n17; challenges to international law of the sea 295; conservation of biodiversity and 284–285; definition of 3–4, 280, 281; international regulations on 

473 283–284; modification of marine stratus clouds 281, 291–294; operations in exclusive economic zones 293; technologies 281–282 Gerhard v. Stephens 462 glass eel 158n65 Global Environment Facility (GEF) 168 Goebel, Julius 455 Greece: delimitation agreements 276–277 greenhouse gas: efforts to reduce emission 111–112, 114–115; emission estimates 114; types of 110n197. See also carbon capture and storage (CCS) Grotius, Hugo 43, 44 Gulf of Mexico 8, 296, 298 fig, 302, 306 Guo, Shoujing 400, 400n32 Guyana-Suriname Maritime Delimitation case 18 Hancox, David 404 Hanich, Quentin 6 He, Zheng 31 Heemskerk, Jacob van 43 Heinämäki, Leena 366 Henry, Infante of Portugal (the Navigator) 34 Hetland, John 460 high seas waters 218n47 Hockham, George 212 Hodgson, Robert 413n116, 420 Holy League 41 Hong, Lei 426 Hua, Chunying 427n206 Hull, Cordell 405 human habitation: capacity of 418–419, 418n143; disputes over definition of 414–415; and economic life 417–418 human migration trends 97–98 human rights: technology and improvement of compliance with 106–107, 108 human trafficking 96 Hussain, Mir 38, 38n31 Hyland, Lawrence A. 52 Iberian Union 42 “Idle Iron” policy 297, 303–304, 308, 310 illegal, unreported and unregulated (IUU) fishing 436

474 Indigenous and Tribal Peoples Convention 349–350, 349n13, 351n22, 352 indigenous peoples: Arctic offshore resources management and 345, 352, 365–366; consultation frameworks between governments and 350; Convention of Biological Diversity and 357–358; engagement in ocean and coastal management 347; formation of transnational identity of 348–349; international lawmaking and 348; in international level, role of 346–347; legal framework for 351–352; participatory rights of 349, 350, 351, 365 Information and Communications Technology (ICT) systems 106 injury frameworks 199–200 installation: vs. equipment 231 Institute of Pacific Relations (IPR) 457 Integrated Undersea Surveillance System (IUSS) 59 Intergovernmental Oceanographic Commission (IOC) 235–236, 235n161, 290 International Agreement on Conservation of Polar Bears 373, 373n31 International Cable Protection Committee (ICPC) 216 International Conference on Responsible Fishing (1992) 132 International Convention for the Safety of Life at Sea (SOLAS) 98–99 International Convention on Maritime Search and Rescue 99, 103, 388–389 International Convention on the Rights of Migrant Workers and their Families 100 International Council for the Exploration of the Sea (ICES) 75, 75n43 International Court of Justice (ICJ): interpretation of UNCLOS by 15; Joint Dissenting Opinion in Pulp Mills case 18–19, 121; reluctance to use scientific opinion 18, 19, 19n18 international fisheries law 131–134 International Labour Organization (ILO) 349 international law: characteristic of conventional 346; climate change

Index and 280; common human concerns 390n96; dispute resolution and 424n182; non-State actors and 346, 347–348, 348n9; of the sea 1, 7, 39n2; traditional viewpoint of 346 International Law Commission (ILC) 215n33 International Maritime Organization (IMO): formation of 353; on marine stratus cloud modification activities 294; on measures on unsafe practices associated with human trafficking 103; members of 353, 353n31; mission of 353; non-governmental international organizations in 354, 355; on reduction of greenhouse gas emission 114; on removal of offshore platforms 299–301, 300n14; on rights of individuals rescued at sea 103; on shipping navigation and ocean environmental pollution 372; on statistics on piracy 72–73 International Meteorological Conference in Brussels (1853) 50 International Seabed Authority (ISA) 202, 203, 204, 216 International Telecommunications Union (ITU) 248–249 International Tribunal for the Law of the Sea (ITLOS): advisory opinion on a legal questions 251–252, 252n249; advisory opinion on due diligence 120; Bangladesh/Myanmar delimitation case 21, 22–24, 25, 26; China-Philippines dispute 428, 428n214; on considerations of humanity 94; dispute settlements 251, 251n246; incorporation of scientific knowledge in procedures of 5; institutional framework adopted by 25n42; interpretation of UNCLOS by 15, 25; on natural prolongation of continental shelf 24–25; precautionary approach 21; Pulp Mills case 19, 121; Southern Bluefin Tuna case 17; use of scientific information by 19, 20–21 Ireland: development of salmon farms in 69 Irish Times 110 islands: capacity of 418; definitions of 412–413, 417n139, 418n141; economic

Index life 416–417, 416n135; human habitation and 415n126; reference to geographic size 419–420 islands vs. rocks 411n101, 411n102 Italy: as destination for illegal migrants 95 James II, King of England 45 Jan Mayen case 416 Janszoon, Willem 44 Jennings, Richard 453 Jessup, Philip 454, 458 Jofre de Loaísa, García 40 Johannesburg Plan of Implementation on Sustainable Development 134, 134n44 Johnson, Andrew 330n97 Jones, Daniel B. 198 Kao, Charles 212 Kastellorizo island delimitation 277–278 Kaye, Stuart 10 Kiribati 131n30, 131n31 Klein, Natalie 429 Knecht, Bob 463 Koivurova, Timo 366 Korea Institute of Ocean Science and Technology (KIOST) 4 Kraska, James 5, 70 krill fishery 142 Kuper, Simon 67 Kwiatkowska, Barbara 413n116 Kyiv Protocol on Strategic Environmental Assessment (2003) 265 Kyoto Protocol (1997) 112, 280, 284 Lagoni, Rainer 216n40 latitude, accurate determination of 46–47 law of the sea 70–71, 252 Law of the Sea Institute 4–5, 4n4 Lebanon: delimitation agreement with Cyprus 274 Lei, Hong 409 Lepanto, Battle of 41 Li, Zhenfu 371 Libya/Malta continental shelf case 18 Long, Ronan 5 Louisiana: rigs-to-reef statute of 305 Macclesfield Bank. See Zhongsha Islands

475 Macondo explosion 297, 302 Madrid Protocol for the protection of the Mediterranean Sea against pollution 266, 266n58 Magellan, Ferdinand 39, 40 Mahan, Alfred Thayer 399 Malaysia/Singapore Land Reclamation case 16, 17–18, 18n8, 20–21 Manhattan Project 55 Manila, Treaty of 403 mare liberum: principle of 225 Marianna Trench exploration 57 marine affairs 2, 3 Marine Casualty or Marine Incident (Code for Investigation) 388 marine climate engineering 281, 285–286. See also geo-engineering marine cloud modification: freedom of navigation and 293–294; in high seas 294; Law of the Sea convention and 292–294; new technologies and international law 294–295; in territorial sea 292–293 marine data collection activities 224–226, 224n76 marine league: as unit of measurement 38 marine meteorological data 233 marine scientific research: after World War II 55; applied vs. pure 228–229, 230; on continental shelf 228–230; definitions of 226–227, 287; deployment of installations and 230–232; in exclusive economic zones 228–230; freedom to conduct 227–228; growing interest in 225; needs for 224–225; obligation of coastal states 229–230; ocean observatories 236–237; ocean pipes and 287; regulations on 225; in territorial waters 230; U.S. policy on  241n190 marine spatial mapping tool 309 marine stratus cloud modification 292, 294 maritime enforcement cooperation: boarding and arrest by a third State 442–443; boarding and referral to flag State  440–442; boarding mechanisms and permissions 441–442; data exchange and 437–440; growth of 449–450;

476 maritime enforcement cooperation (cont.) mission of observers 437, 439–440; multi-lateral agreements 441; types of 436 maritime powers 33–34 Maurice, Prince of Orange 43 Maury, Matthew Fontaine 49–50, 50n80 McLaughlin, Richard 8 Mediterranean Integrated Coastal Zone Management (ICZM) Protocol 264 Medvedev, Dmitry 343 Mei, Hong 379 Mengerink, Kathryn 7, 79, 345n meteorology 51 Micronesia, Federated States of: absence of policy on access and benefit sharing 179; access and benefit sharing policy 181, 183; activities of international researchers in 178; biodiversity 176; creation of nation state 177; Gap Analysis recommendations 178, 179, 180, 181; implementation of Nagoya Protocol 6, 179–180, 182, 184; population of 176–177; ratification of Nagoya Protocol 177; territory of 176 migrants 95, 95n132, 96, 97t Miranda, Lillian Aponte 348 Mischief Reef incident 406–407 mitigation 200, 205–206, 207 Monterey Accelerated Research System (MARS) observatory 240 Monterey Bay National Marine Sanctuary 240–241, 240n186 Muscovy Company 43n46 Myanmar 24. See also Bangladesh/ Myanmar Delimitation Case Nagoya Protocol: access and benefit sharing 167, 170–171; characteristic of 166; compliance and monitoring 172; core elements of 169–172; designation of national focal point 169; goals of 167; institutional arrangements 169–170; legal pluralism in Pacific region and 184; Parties’ responsibilities 170–171; problems of implementation 6, 182, 183, 184;

Index protection of indigenous and local communities 171; responsibilities of competent national authorities 169, 170–171; on use of traditional knowledge 171–172 National Fishing Enhancement Act (1984) 297, 305, 305n31 National Oceanic and Atmospheric Administration (NOAA) 240 National Science Foundation (NSF) 55, 56, 61 natural disasters 243 natural rights: concepts of 44 naval powers 30 Naval Research Laboratory (NRL) 52 Navigation Act (1651) 45 Newton, Isaac 46 New Zealand 44, 443–444 Niue Treaty (1992) 445–447 non-refoulement: principle of 105 Nord Stream 263 Northeast Passage 386, 387 Northern Sea Route 320, 322, 323 Northwest Passage 320, 321–324 Norway: authority under Svalbard Treaty 387–388; delimitation agreement with Russia 339–340 nuclear power plants 57 nuclear tests 57 Obama, Barack 343 Ocean Data Acquisition Systems, Aids and Devices (ODAS) 291 oceanic pipes: deployment of 286fig, 286n27; in exclusive economic zones 288, 289; in foreign territorial sea 288; jurisdiction over 288, 289; Law of the Sea Convention and 286– 287; legal framework 286; marine scientific research and 287; noninterference with the right of innocent passage of ships 288; purpose of 289, 290; removal requirements 290–291; upwelling 287, 288, 290 ocean iron fertilization 283n16 ocean observatories: cabled 237; characteristics of 236; growing number of 237; legal regimes for 239–240, 239n182; types of 237

477

Index Ocean Observatories Initiative (OOI) 238 oceanography: emergence of 50–51; origin of scientific research 48–49; support of naval operations 53; U.S. Navy as patron of 52 Oceanography from Space symposium 60 oceans: climate change and 110, 242; discovery of currents 42; early explorers of 30–31; as medium for spread of science and technology 30; monitoring instruments 242, 243; Papal Bull on division of 37; political power and control over 29n2; role in human history 29; study from space 60–61 Ocean Tracking Network (OTN) 149–150, 149n2 Office of Naval Research (ONR) 55–56 offshore energy projects 268 offshore marine structures: artificial reefs 297; converting rigs into reefs 306, 307 fig; international regulations on abandoned 298–301; platforms 297, 298 fig; removal of unused and abandoned 296, 301, 308; revenue from removal of 304 offshore wind energy development 116–117 Oil Pollution Act (OPA) 204 operational oceanography 234–235 Operation Deep Freeze 58 orange roughy 443, 444 Ottoman Empire 35–36, 41 Outer Continental Shelf Lands Act (OCSLA) 204 Pacific island region 165, 165n1, 166, 167 Pacific Islands Forum Fisheries Agency (FFA) 145 Papal Bull on division of oceans 37, 40 Paracel Islands 407 Paris, Treaty of (1898) 405n63 Pawlak, Stanislaw 428 Peterson, Andrea 463 Philip II, King of Spain 42 Philippines: claim to Luzon Island 420n151; claim to Scarborough Reef 403–406, 404n58, 404n59; independence from U.S., 405; relations with China 406n72, 409n84, 426; Spanish and U.S. sovereignty

over 405n63. See also China-Philippines confrontation over Scarborough Reef Piccard, Jacques 57 pipelines 220, 220n54 piracy 321n47 Poirier, Pascal 371n22 Portugal: colonization of Macau 42; competition with Spain 40; deep-sea exploration and colonization 34–35; discovery of sea route to India 38; first contact with China 39; first contact with Japan 42; as maritime power 33–34; use of naval cannons 38; voyages along African coast 35 precautionary principle 80–81, 82 Prescott, Victor 404–405 prevention, principle of 282, 283 Proelss, Alexander 7 Protocol on Integrated Coastal Zone Management (ICZM Protocol) 257 Pulp Mills on the River Uruguay case 18, 121 Quezon, Manuel 405 refugees: Geneva Convention on status of 104n173 Regional Fisheries Management Organizations (RFMOs) 6, 91, 136, 138–139, 437. See also fisheries management restoration 206n88, 207–208 Rickover, Hyman,  57 Riesenfeld, Stefan: academic appointment at University of California Berkeley 458; areas of expertise 459, 460; awards 464; career at U.S. State Department 464–465; death of 465; early life 454; education 455; on international law 456; knowledge of languages 455; on law of real property 461; on law of territorial waters 456–457; as library user 461; marriage and family 458; military service of 458; personality of 454, 463; photograph of 453 fig; Protection of Coastal Fisheries under International Law 456; recognition of achievements  11, 12, 453, 465–466; as researcher 457;

478 Riesenfeld, Stefan (cont.) scholarly works of 455, 457, 458–459; sense of humor 463; students of 464; Study of the Workmen’s Compensation Law in Hawaii 460; suggestion to change law due to derecognition of Taiwan 465; teaching 459; travel to The Hague 454 rigs-to-reefs programs 304–305, 307, 308–309 Rio Declaration on Environment and Development 129, 130, 199 rocks: capacity of 419, 419n144; human habitation and 414n120; question of legal entitlement of 414, 414n119; as sub-category of islands 412 Roosevelt, Franklin Delano 52, 54 Root, Elihu 454 Rose, Justin 6 Rosenberg, David 399 Rosenne, Shabtai 16 Royal Navy: Challenger expedition 48–49, 49n76; integration of astronomy in operations of 48; observation of sea currents 46; rise of 45–49; scientists in 45–46; use of scientific knowledge in navigation 46–47, 48 Rumsfeld, Donald 193 Russia: delimitation agreement with Norway 339–340; resource developments in high latitude 328 Rutherford, Ernest 51 Saizon, Domingo 404 Santa Catarina carrack: capture of 43–44, 43n48 Sargasso Sea Alliance 154, 158 Sargossa, Treaty of 40 Scarborough Reef (Scarborough Shoal): absence of economic life on 422; categorization under UNCLOS 396, 410–411, 411n97; characteristics of 395– 396; China-Philippines rivalry over 10, 395n1, 395n2, 409; China’s claims to 400–403, 402n44, 402n46; Chinese radio operators on 415n127; geographical position 400, 403; Japanese aggression and 406, 406n68; legal status of 410; on map published in Philippines  406n70; on maps published in

Index China 402; natural resources 397–398; Philippine claim to 403–406, 403n49, 404n58; problems of classification 420– 421; question of inclusion of Zhongsha Islands in 402–403, 402n47; scientists and visitors on 421; Treaty of Paris and 405n63, 405n65; UNCLOS dispute resolution framework 423–425; uninhabitable nature of 422 Scheiber, Harry 65, 66, 457 Schofield, Clive 8, 9 Science: The Endless Frontier report 55 scientific research 3, 8, 230–232 Scripps Institution of Oceanography 52, 245 Selendang Ayu disaster 329–330 Seward, William 330n97 shark repellants 56 Shovel, Cloudesley 47n61 Simma, Bruno 18, 19 Slovenia: delimitation agreement with Croatia 278 Smith, Robert 413n116, 420 Snelgrove, V.R. 194 soft laws agreements 375n42 Soons, Alfred H.A. 224, 227, 232, 413n116 Sound Surveillance System (SOSUS) program 59, 60 South Africa 444 South China Sea: ASEAN Declaration on the Conduct of the Parties in 408; characteristics of 395–396; China’s policy in 401n39, 408, 408n81; freedom of navigation in 399; Mischief Reef incident in 406–407; natural resources 397–398, 398n14; overexploitation of fisheries in 397, 397n10; strategic significance of 396n5, 397n11, 398–399, 399n25 Southern Bluefin Tuna case 15–16, 16n2, 17, 20 South Stream 267, 267n60 South Tasman Rise disputes 443–445 Soviet-U.S. dispute on delimitation of Bering Sea and Strait 330–333, 339 Spain: competition with Portugal 40; Dutch revolt against 42–43; as maritime power 33–34; prosecution of fishing companies in UK 92–93; Reconquista  36; rivalry with England 43

479

Index Specially Protected Areas of Mediterranean Importance (SPAMI) 257, 258 Species at Risk Act (SARA) 163 Species at Risk Working Group 157 stable community: concept of 416, 419n145 Stockholm Declaration of the Human Environment 1, 126, 128–129 Stoeckl, Edouard de 330n97 straight lines in boundary treaties: types of 333–334, 333n103 Strathclyde Institute of Drug Research (SIDR) 174 submarine communications cables: characteristics of 209, 212–213; climate change monitoring and 244; coastal states jurisdiction over 223–224; concerns over dual-purpose of 247–248; on continental shelf 221–222; data collection by means of 210, 245–246, 248, 252; development of fiber optic systems 212; in exclusive economic zones and on continental shelf 218, 245; freedom to lay 215–216, 216n40; future development of 210n4; growth of 210; history of 209, 211–212; impact on technology and society 211, 212, 213n24; integration in disaster monitoring systems 244; international conventions on 213–214; legal and policy issues 210; legal regimes for 238–240, 246–247; legal uncertainty over scientific application of 249; legislation on protection of 209–210; as monitoring tools 243– 244; new generation of multi-purpose  244–245; vs. pipelines 220; repair and maintenance of 214, 218–219; report on using 248–249; in territorial seas  223–224; UNCLOS definition of 214 submarines: hazard caused by 52; invention of 51; nuclear-powered 57; technological advances in 53; USS Thresher disaster 57; in World wars 52–53 Surveillance Towed Array Sensor System (SURTASS) 59 sustainable development: definitions of 129–130; Johannesburg Declaration on 130n24 Svalbard Treaty 368, 368n8, 373, 387

Tasman, Abel Janszoon 44 Taylor, Albert H. 52 technology: impact on compliance with human rights 106–107, 108; in law enforcement, use of 91, 106 terrestrial environment 188n5 territorial waters 38–39, 435 Te Vaka Toa arrangement 446n37 Texas’ rigs-to-reef statute 305 Thomlin, S.H. 31 Thomson, Charles Wyville 49 Tobriner, Matthew 462, 463 Tordesillas, Treaty of 37, 40 Torre, Bernard de la 42 Torres, Luís Vaz de 44 tragedy of the commons 378n53 Trans-Adriatic Pipeline (TAP) 263 Trans-Anatolian Pipeline (TANAP) 263 Treves, Tullio 3, 5, 462 Trouwborst, Arie 128 Truman, Harry S. 55 tuna fisheries 144–145 Turkey 272, 274 Turkish Empire. See Ottoman Empire UN Commission on International Trade Law (UNCITRAL) 261 UN Commission on the Limits of the Continental Shelf (CLCS) 258, 339 UN Conference on Environment and Development (UNCED) 129, 132 UN Convention on the Law of the Sea (UNCLOS): adoption of 464; on American eel 153–154; Annex VII arbitral tribunal 17, 18; on application of science and marine technology 66; arbitration procedures 428; on Arctic region 372; on Atlantic surgeon 161; as basis for China’s participation in Arctic governance 386–387; on climate change 109–110; on conflict of interest between coastal and other states 250– 251; on conservation and utilization of fish stocks 132; definition of continental shelf 217; on deployment of installations or equipment 230–231, 288; dispute resolution framework 423–425, 424n186, 424n187, 425n194, 429–430, 431n230; on dispute settlement between states 251;

480 UN Convention on the Law of the Sea (cont.) on disputes involving scientific or technical matters 16; on disputes over freedom of navigation 425; on exclusive economic zones 59, 135, 216–217; as foundation of fisheries governance 131; as framework for improvement Arctic governance 384; on freedom to lay communication cables 215–216, 215n35, 215n36, 218–219, 218n48, 221; on jurisdiction of coastal states on submarine cables 222–223; on legal competence of members of tribunal 17n6; on limits of continental shelf 22, 379n61; on low-tide elevation 422; on management of catadromous species 156n51, 163–164; on management of mineral resources 201; on marine scientific research 228–229; on obligations of archipelagic States 223–224, 223n72; on ocean pipes 286–287, 289–291; on protection and preservation of marine environment 200–201; provisions on mitigation and restoration requirements 203; provisions on submarine cables 7, 209, 214n30, 218, 219–221; references to environmental principles 131–132; references to scientific notions 15; reference to human habitation 415; on regime of islands 411–413, 413n116, 419; on removal of abandoned offshore structures 299, 299n10; significance of 2–3, 379; on sovereign rights of coastal states in exclusive economic zones 135 UN Declaration of Principles Governing the Seabed and the Ocean Floor 379–380 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 351 UN Fish Stocks Agreement (UNFSA) 89, 133, 136–138, 441 UN Framework Convention on Climate Change (UNFCCC) 109, 280 United Kingdom: prosecution of Spanish fishing companies in 92–93 United Nations (UN): Agenda 21 action plan 129; conventions against human trafficking 99, 99n155; on oceans

Index management 128; Rio Declaration on Environment and Development (1992), 129, 130, 199; role in Arctic ­governance 381; Stockholm Declaration on Human Environment (1972) 1, 126, 128–129 United States (U.S.): Arctic operational capabilities 344; coastal defense in World War II 53; delimitation dispute with the Soviet Union 330–332; legal regimes on submarine cables 240–241; policy on decommissioned offshore structures 302–303 University of the South Pacific (USP) 168, 173, 175, 182 unreported and unregulated (IUU) fishing 10–11 U.S.-Canada Arctic Cooperation agreement 373 U.S. Coast Guard’s Arctic Strategy 324 U.S. Department of Commerce, National Oceanic and Atmospheric Administration 197 U.S. Department of the Interior 205 U.S. Environmental Protection Agency (EPA) 200 U.S. Framework for Injury to Deep Ocean Resources 204–206 U.S. National Marine Sanctuaries Act 200 U.S. Naval Observatory 50 U.S. Navy: dominant position in marine science 61–62; funding of oceanographic research 51; polar research 58; pragmatic approach to marine science 49; promotion of science 56; rise of 49 U.S. Office of Scientific Research and Development (OSRD) 55 U.S. Oil Spill Liability Trust Fund 207 U.S.-Russia agreement on Prevention of Environmental Pollution in the Arctic Region 373 U.S.-Russia declaration on trans-boundary cooperation 343 U.S.-Russian Convention (1867) 330–332, 330n97, 334 Valencia, Mark 401 VanderZwaag, David L. 6

481

Index Van Dover, Cindy Lee 195 Van Dyke, Jon M. 341, 401, 414, 415, 421 Vienna Convention for the Protection of the Ozone Layer (1985) 292 Vienna Convention on the Law of Treaties (VCLT) 277, 346, 417 Vietnam 407 Vine, Allyn C. 57 Virginia Commentary on UNCLOS: on high sea freedoms exercised in exclusive economic zones 218n48; on installations and equipment 231; on jurisdiction of states in exclusive economic zones 250n242, 251n243; on ownership of submarine cables 216 Walsh, Don 57 Washington, Treaty of (1900) 405 WCPF Convention 145, 146, 147 Western and Central Pacific Fisheries Commission (WCPFC): characteristics of 143–144; in comparison with CCAMLR 139–140; on ecosystem-based approach to fisheries management 124,

146; management priorities 140, 147, 148n96; mission of 140 Westphalia, Peace of 34, 44n53 Whaling in the Antarctic case 19 Wilkes, Charles 58 William III, Prince of Orange-Nassau 45 Wilson, Woodrow 54 wind energy development 116–117 Wolfrum, Rudiger 428 World Commission on Environment and Development (WCED) 129 World Meteorological Organization (WMO) 50, 233, 248 Yanai, Shunji 428 Yap, Jose 421 Yeats, William Butler 123 Yin, Zhuo 378 Yoshinaga, Nadao 460 Young, Leo C. 52 Yuan Dynasty 400, 400n32 Zhao, Jun 9 Zhongsha Islands 402–403, 402n46, 402n47 Zhou, Enlai 402