Myths & Realities #4 Concerning UNLaw of the Sea Treaty -
LOST, Land-Based Activities &Sources of Marine Pollution,
And the Precautionary Principle
Myth #4: The UN Law of the SeaTreaty Cannot Be Used by Foreign Governments to Challenge U.S. Regulation ofLand, Internal Waterway and Air-Based Sources of Alleged Pollution Affectingthe Marine Environment
On September 27, 2007, DeputyU.S. Secretary of State John Negroponte stated during his testimony before theU.S. Senate Foreign Relations Committee that,
“There are some environmental issues that are thesubject of international agreements such as ocean dumping, for example, butwhen you talk about land-based pollution, our view is that that’s just notcovered by the [Law of the Sea] Treaty...There is no jurisdiction over marine pollution disputes involvingland-based sources” (emphasis added).[1]
That same day, U.S. State Department Legal Adviser John B.Bellinger III stated, in response to questions posed by Senate FinanceCommittee member Senator David Vitter (SC)that,
“[A]s far as dispute resolution involvement...therecan be limitations on the pollution that can emanate [from land-based pollutionsources]. But as far as theability in so far as the ability of any other country to complain about thatand bring us to dispute resolution over pollution that would come from landthat is not permitted under the treaty” (emphasis added). [2]
Reality #4: The UN Law of the Sea Treaty Sets ForthBroad Legal and Regulatory Proscriptions to Address Marine Pollution, Especially from Land-Based andAtmosphere-based Sources Located andActivities Undertaken Within National Sovereign Borders and Control
A. OfficialTestimony Misleading and Contrary to the LOST’s Express Terms
Manyadministration experts well understand that the LOST would apply to activitiesengaged in and products and substances designed, manufactured, formulated,sold, used and disposed of entirely within U.S. sovereign territory. Inparticular, the LOST would cover ANY ‘pollution’ source emanating from U.S.land, internal waterways or the air above that directly or indirectly affectsthe ‘marine environment’. It is therefore very surprising that Messrs.Negroponte and (especially) Mr. Bellinger were seemingly unaware of the prior2004 Senate Foreign Relations Committee testimony of William H. Taft, IV,former Legal Adviser to the US Department of State.
Here isan excerpt of Mr. Taft’s testimony during a Question and Answer session. Itapparently contradicts that of Messrs. Negoponte and Bellinger:
Question 1. Ifthe U.S. becomes a party to UNCLOS, it will become the ‘‘law of the land.’’Please provide a detailed analysis of all provisions that could raise issues ofconsistency with current U.S. laws and regulations, including our enforcement practices,with respect to the protection of the marine environment. Please include adescription of any obligations under UNCLOS for which additional domesticauthorities will be needed. Will the Administration be seeking implementinglegislation for any of these provisions and, if not, will any steps be taken toaddress any such inconsistencies?
Answer...Part XII of the Convention establishes alegal framework for the protection and preservation of the marine environment. Itaddresses sources of marine pollution, such as pollution from vessels, seabedactivities, ocean dumping, and land-based sources...” (emphasis added). [3]
Ifthese officials had been properly briefed, they would have noticed a number ofLOST provisions (articles) that address this precise issue. Consequently, oneis led to wonder why these officials delivered statements under oath that wereat, the very least, uninformed, and at the very most, misleading.
Theterm ‘pollution of the marine environment’, perhaps one of the LOST’s mostcentral ‘legal terms of art’, is defined in the very first provision of thetreaty - Part I, Article 1.1(4). It speaks broadly about both concepts. Thenotion of ‘pollution’ includes “the introduction by man, directly or indirectlyof substances or energyinto the marine environment”. The ‘marine environment’, for purposes of thisdefinition, encompasses estuaries, fish and other living resources withinnational sovereign jurisdiction that ultimately flow into the sea.
“1. For the purposes of this Convention:
... (4) ‘pollution of the marine environment’ means theintroduction by man, directly or indirectly, of substances or energy into the marineenvironment, including estuaries, which results or is likely to result in such deleteriouseffects as harm to living resources and marine life, hazards to human health,hindrance to marine activities, including fishing and other legitimate uses ofthe sea, impairment of quality for use of sea water and reduction of amenities;”(emphasis added).[4]
Article194 is the primary article within the LOST that sets forth the broad obligationand legal duty of care assumed by all national government LOST parties asconcerns the marine environment (including the United States should it ratifythe LOST). In fact, it prescribesthe measures that ALLLOST parties shall taketo prevent, reduce and control marine pollution, especially from land-based and atmosphere-basedsources.
“Article 194 – Measuresto prevent, reduce and control pollution of the marine environment -
1. States shall take, individually orjointly as appropriate, all measures consistent with thisConvention that are necessary to prevent, reduce and control pollution of themarine environment from any source...3. The measures taken pursuant to thisPart shall deal with all sources of pollution of the marine environment.These measures shall include, inter alia, those designed to minimize to the fullestpossible extent: (a) the release of toxic, harmful or noxious substances,especially those which are persistent, from land-based sources, from or throughthe atmosphere or by dumping” (boldfaced and underlined emphasis added). [5]
LOSTArticle 207 goes further and mandates specifically that LOST treaty parties (including the U.S.should it ratify the LOST) shalladopt laws and regulations to address land-based and related water-based sources of marine pollution within theirsovereign jurisdictions:
“Article 207 – Pollutionfrom land-based sources -
1. States shall adopt laws andregulations to prevent, reduce and control pollution of the marineenvironment from land-based sources, including rivers, estuaries,pipelines and outfall structures, taking into account internationally agreed rules,standards and recommended practices and procedures. 2. States shall take other measures as may be necessary toprevent, reduce and control such pollution” (boldfaced and underlined emphasisadded). [6]
Article207 uses prescriptivelanguage to require LOST parties to link and harmonize their national measureswith similar regional and global measures. In particular, LOST parties “shall endeavor to...harmonize their policies...[and] establish globaland regional rules,standards and recommended practices and procedures to prevent, reduce andcontrol pollution of the marine environment from land-based sources” (emphasis added).[7]And, such “[l]aws, regulations, measures, rules, standards and recommendedpractices and procedures...shall includethose designed to minimize, to the fullest extent possible, the release oftoxic, harmful or noxious substances [CHEMICALS],[8]especially those which are persistent, into the marine environment” (emphasis added). [9]
Justas LOST Article 207 functions to implement specifically, with respect to land-based pollution sources, the broader legal obligationsimposed by LOST Article 194, so too, does LOST Article 212 function torequire implementation ofLOST Article 194 as concerns atmosphere-based sources of marine pollution. For example,“States shall adopt lawsand regulations...”
“Article 212 – Pollutionfrom or through the atmosphere –
1. Statesshall adoptlaws and regulations to prevent, reduce and control pollution of the marineenvironment from or through the atmosphere, applicable to theairspace under their sovereignty, and to vessels flying their flag or vessels oraircraft oftheir registry...2. States shall take other measures as may be necessaryto prevent, reduce and control such pollution.” (Boldfaced and underlinedemphasis added). [10]
GivenLOST Article 194’s definition of marine pollution as consisting of theintroduction by man of ‘energy’ into the marine environment, one may reasonablyconclude that LOST Article 212 mandates national government regulation ofcarbon dioxide and other greenhouse gas emissions from land-based [11]as well as sea-based sources under U.S. sovereignty and control. This wouldappear, at the very least, to constitute a back-door effort by European nationsto secure LOST party compliance with the UN Kyoto Protocol. [12][13](This subject, however, will be taken up in greater detail in future ITSSD Lawof the Sea Journal entries.)
Inaddition to the LOST’s prescriptive and mandatory regulatory provisionsconcerning land-basedsources of marine environment pollution, there are also enforcement provisions to ensure that a LOST party compels its citizens to comply with the nationalrules that it adopts to implement the obligations set forth in LOST Article207. LOST Article 213, which appears within Section 6 of the treaty entitled,“Enforcement”, sets forth the following rule:
“States shall enforce their laws andregulations adopted in accordance with article 207 and shall adopt laws andregulations and take other measures necessary to implement applicableinternational rules and standards established through competent internationalorganizations or diplomatic conference to prevent, reduce and control pollutionof the marine environment from land-based sources” (emphasis added). [14]
LOST Article 222 is thecorresponding enforcement provision relating to atmosphere-based sources of marine pollution, including carbondioxide, within sovereign control. According to its mandatory provisions,
“States shall enforce, within theair space under their sovereignty or with regard to vessels flying their flag orvessels or aircraft of their registry, their laws and regulations adoptedin accordance with article 212, paragraph 1, and with other provisions of thisConventionandshall adopt laws and regulations and take other measures necessary toimplement applicable international rules and standards established throughcompetent international organizations or diplomatic conference to prevent,reduce and control pollution of the maritime environment from or through theatmosphere, in conformity with all relevant international rules and standardsconcerning the safety of air navigation” (emphasis added).[15]
Last, but not least, there isLOST Article 235. It can be utilized by one LOST party to impose internationallegal liability at the ‘State’ (national government) level against any otherLOST party (e.g., the U.S.) via compulsory, binding tribunal adjudication orvoluntary arbitration (assuming that other party e.g., the U.S. has consented)where the latter has failed to fulfill its “international [legal] obligationsto impose AND enforce strict new environmental rules nationally to protect andpreserve the marine environment from potentially harmful land-based activities.[16]
At a minimum, in the event theU.S. ratifies the LOST, this LOST article can be used to commence litigation againstthe U.S. at the International Tribunal of the Law of the Sea (ITLOS) or theInternational Court of Justice (ICJ), or any arbitration proceedings agreed toby the U.S. government. And, whether or not an adverse ruling is secured, suchother LOST party could help to shape/influence future U.S. governmentallegislative and/or regulatory action. For example, the politics surroundingsuch proceedings could persuade the U.S. Congress to apply pressure againstU.S. state legislatures which traditionally have regulated insurance and/orupon the numerous American industries[17]deemed responsible for land-basedsources of marine pollution in ways that could result in substantial increasesin the cost of doing business, including related business insurance premiums,as well as downstream service or product cost increases to consumers. It mayeven persuade the U.S. Congress and state legislatures, let alone federal andstate judges, to amend and/or reinterpret current laws and judicial decisionsin ways that will impose greater potential future legal liability on Americancitizens.[18] And, if theU.S. harmonizes its enforcement and liability rules with other nations such asthose in Europe, it may even result in widespread imposition of new criminal as well as civil penalties.[19]
B. United Nations Documents Clearly Reflect the Land-based Focus of the LOST and Reliance Upon the PrecautionaryPrinciple via the LOST to EnsureProtection and Preservation of the Marine Environment Against Land-Based Pollution Sources
Without doubt, the primary objective of theLOST regime and the European regulatory control agenda behind it [20]in mandating protection and preservation of the global marine environment is toinvade what every UN member state would otherwise be entitled to - national sovereignty.In other words, via the exercise of UN supranational institutional jurisdictionand authority and the employment/exportation of ‘international’ law to otherLOST parties pursuant to an interpretation of LOST terms consistent with thecontra-WTO Precautionary Principle,the LOST will enable European governments to reach into and determine, if notshape, the otherwise sovereign national, state and local environmentalregulatory policies of other LOST parties. In the case of the United States, thismeans breaching the myriad protections against arbitrary and wantongovernmental actions guaranteed to U.S. citizens by the U.S. Constitution andits accompanying Bill of Rights.[21]
As three recently published UNdocuments make crystal clear for all of the world to see, it is actually land-basedsources of marine pollution that are theLOST’s main target!
“The regulation of marine pollution is usuallyanalyzed according to the source producing the marine pollution. The sourcesand their respective contribution to marine pollution load (by mass) are: land-based 82%’ vessel-based 9%; dumping of waste at sea 8%; andoff-shore activity 1%” (emphasis added). [22]
“...The vast majority of marine pollution comesfrom land-based sources. These include sewage outfalls, industrialdischarges, runoff from urban storm water and agriculture, river borne andairborne pollution and litter. Land-based sources of marine pollution can also be transported through the air,such as vehicle emissions” (emphasis added). [23]
“As a whole, international instruments concerningmarine environmental pollution tend to distinguish four categories ofintentional pollution: vessel-based pollution coming from normal utilization ofthe oceans; deliberate and large, mostly industrial, dumping of wastes;pollution arising from exploration or
exploitation of the sea-bed; land-based pollutionwhether coming from direct discharges into the ocean or carried into it byrivers...Land-based pollution isdefined as pollution of maritimezones due to discharges by coastal establishments or coming from any othersource situated on land orartificial structures, including pollution transported from rivers to the sea. Approximately 70 percent of marine pollutioncomes directly from land-based sources” (emphasisadded). [24]
“The major threats to the health, productivity andbiodiversity of the marine environment result from human activities onland - in coastal areas andfurther inland. Some 80% of the pollution load in the oceansoriginates from land-based activities. This includes municipal, industrial and agricultural wastes andrun-off, as well as atmospheric deposition. These contaminants affect the mostproductive areas of the marine environment, including estuaries and near-shorecoastal waters” (emphasis added). [25]
Considering, however, that theseUN Environment Program (UNEP) documents (two of which were published within thesame year) cite conflicting percentages of marine pollution caused by land-based sources, it is probably prudent to average the results.This would yield the following figure: at least 76% of all marinepollution is caused by land-based sources,and is subject, directly and/or indirectly, to LOST jurisdiction!
The concern by governments about land-basedsources of marine pollution tracks back toat least 1985, when the Montreal Guidelines for the Protection of theMarine Environment Against Pollution from Land-Based Sources [26]were adopted. These nonbinding guidelines were later reviewed in greater detailin the context of the UNEP Agenda 21 at the 1992 Rio Earth Summit onSustainable Development.
“Recognizing that control of land-based sources of marine pollution was failing the 1992 UnitedNations Conference on Environment and Development agreed to advance thesubject. Agenda 21 invited the United Nations Environment Programme to convenea meeting on land-based sources assoon as practicable and identified priority actions for control of thesesources...Agenda 21 also recommended updating the 1985 Montreal Guidelinesfor the Protection of the Marine Environment Against Pollution from Land-BasedSources [drawn from internationalagreements such as the UN Law of the Sea Convention] [27]assessing the effectiveness of regional agreements on land-based sources and the formulating of new regional agreements whereappropriate...” (emphasis added). [28]
In any event, this 1985document’s discussion of the ‘serious’ threat posed to the marine environment(including rivers, canals, underground watercourses, other water courses up tothe freshwater limit/low freshwater flow, inter-tidal zones, saltwater marshes)by land-based sources[29]led to the convening of another intergovernmental conference in Washington DCduring November 1995. The conference resulted in a political declaration[30]and an intergovernmental actionplan (‘Global Program of Action’) that called for better management of land-based sources of marine pollution internationally,regionally and nationally.
“The major threats to the health and productivity andbiodiversity of the marine environment result from human activities onland -in coastal areas andfurther inland. Most of the pollutionload of the oceans, including municipal, industrial and agricultural wastes andrun-off, as well as atmospheric deposition, emanates from such land-basedactivities and affects the mostproductive areas of the marine environment, including estuaries and near-shorecoastal waters. These areas are likewise threatened by physical alteration ofthe coastal environment, including destruction of habitats of vital importancefor ecosystem health. Moreover, contaminants which pose risks to human healthand living resources are transported long distances by watercourses, oceancurrents and atmospheric processes” (emphasis added). [31]
Interestingly,this Plan of Action, which even more broadly defined the term ‘marineenvironment’,[32] more closely related the need to prevent, controland reduce land-basedsources of marine pollution at the national, regional and international levelsas a matter of legal obligation with the use of the contra-WTO PrecautionaryPrinciple.
“4. International law, as reflected in the provisionsof the United Nations Convention on the Law of the Sea (UNCLOS) and elsewhere, sets forth rights and obligations ofStates and provides the international basis upon which to pursue the protectionand sustainable development of the marine and coastal environment and itsresources. 5. In accordance with general international law, while States havethe sovereign right to exploit their natural resources pursuant to theirenvironmental policies, the enjoyment of such right shall be in accordancewith the duty to protect and preserve the marine environment. This fundamental duty is to protect andpreserve the marine environment from all sources of pollution, includingland-based activities. Ofparticular significance for the Global Programme of Action are the provisions containedin articles 207 and 213 of UNCLOS...9. The duty to protect the marine environment from land-based activities wasplaced squarely in the context of sustainable development by the United NationsConference on Environment and Development in 1992. Therein, States agreed it isnecessary: (a) To applypreventive, precautionary,and anticipatory approachesso as to avoid degradation of the marine environment, as well as to reduce therisk of long-term or irreversible adverse effects upon it” (emphasis added). [33]
“24. The precautionary approach should be applied through preventive and corrective measures based onexisting knowledge, impact assessments, resources and capacities at nationallevel, drawing on pertinent information and analyses at the subregional,regional and global levels. Where there are threats of serious or irreversibledamage, lack of full scientific certainty should not be used as a reason forpostponing cost-effective measures to prevent the degradation of the marineenvironment” (emphasis added). [34]
Specifically,the Plan of Action prescribes the use of the Precautionary Approach/Precautionary Principle (without adequately distinguishing between the twoterms) for purposes of undertaking actions to address land-based sources of persistent organic pollutants,[35]radioactive substances,[36]heavy metals,[37] and oils.[38]As with the declaration adopted above, it is apparent that the United States(during the Clinton-Gore Administrations) had joined with the countries ofEurope to become one of 108 countries to adopt the Plan of Action.[39]
And,a more recent United Nations document suggests how different ‘tools andmeasures’, including regulations, economic instruments, and voluntaryinitiatives,[40] can beapplied by national government officials to reduce the impacts of land-based activities (LBAs) upon the coastal and marine environment,consistent with Part XII of the UNCLOS.[41]Not surprisingly, these devices include reforms of private propertyrights.
“Other requirements and incentives to induce theimplementation of environmental protection measures include: cost-effective andappropriate public and private investment; institutional measures, such asreorganisation, to promote cross-sectoral approaches; the establishment ofenvironmental management agencies; the enactment of environmental legislation, andthe reform of property rights”.[42]
According to the report, propertyright reforms can entail the outright “creation of private or public propertyrights”,[43]“allocation of property or use rights”,[44]“recognition of customary [traditional] rights” and the restriction of propertyrights via application of the Precautionary Principle/Approach.
“The role of government, in the context of themitigation of the effects of land-based activities on the marine environment, is (i) to provide thelegal, institutional and policy framework conducive to sustainable developmentand resource use and (ii) to correct market failure. Various elements might be included here but amongthe more important are: Maintenance of Future Options - This ‘umbrella’ element is concerned with preventingirreversible actions that might diminish the options of future generations. Itwould include: adopting a precautionary approach when theecological impact of a proposed action is uncertain” (emphasis added). [45]
“In general, environmental legislation for coastal andcatchment areas provides for a number of legal mechanisms, including: recognitionof customary rights, provision of public and private property rights, andrevision of property rights whenthe management regime obstructs the attainment of desired environmentalobjectives...A number of concepts to support good environmental managementare frequently implemented through national legislation. They include theprecautionary approach...(emphasis added). [46]
Apparently,a number of environmentalists, United Nations and European commentators believethat the LOST provides a broad and comprehensive enough framework that permitsnational governments, consistent with evolving regional and internationalregulations and standards contained within other international environmentaltreaties, to impose legal measures to control land-based sources of marine pollution via applicationof the Precautionary Principle and property rights reform.
“Chapter XII of the UNCLOSsets out a broad framework for comprehensive measures to control marinepollution. Although drafted a quarter century ago, and prior to thedevelopment of the sustainable development paradigm, its provisions stillprovide a solid basis for the prescription of standards and for theirenforcement regimes. The provisions are supplemented by a range of treatylaws that prescribe standards in much greater detail for more narrowly definedsources of pollution or for particular regions.” [47]
Thisexpansive interpretation of international law is compatible with the prior(2004) U.S. Senate Foreign Relations Committee testimony proffered by Roger T.Rufe. Mr. Rufe is a retired U.S. Coast Guard Vice Admiral and a former CEO ofThe Ocean Conservancy (OTC), an environmental activist group. He is alsocurrently serving at the pleasure of the president as Director of theDepartment of Homeland Security’s (DHS) Operations Directorate.
Although the PrecautionaryPrinciple did not exist and was therefore not expressly included in theoriginal LOST text at the time the treaty was negotiated, Mr. Rufe stronglyurged the Committee that the Precautionary Principle be read and/orincorporated into the LOST upon U.S. ratification and/or at a time(s) in thefuture when amendments to the LOST are considered by the internationalcommunity. This result shouldobtain, according to Mr. Rufe, because the Precautionary Principle has largelyevolved as a norm of international environmental law around the LOST during theintervening years. In addition, he argues that the Precautionary Principle hassince been included within at least one LOST protocol and a host of related UNEnvironment Program multilateral environmental treaties that not only prevent land-basedsources of marine pollution, but alsoprotect living marine resources from land-based activities.[48]
This latter subject will beaddressed in a forthcoming installment of the ITSSD Law of the Sea TreatyJournal’s ‘Myth & Realities’ series.
[1]See “Vitter on Law of the Sea: Part 2”,YouTube (Sept. 27, 2007) at: http://www.youtube.com/watch?v=h8IVFcCfaIM.
[3] See“RESPONSES OF WILLIAM H. TAFT, IV, LEGAL ADVISER, DEPARTMENT OF STATE, TOADDITIONAL QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR JOHN F. KERRY”, on theUnited Nations Convention on the Law of the Sea, Before the Senate ForeignRelations Committee, (March 11, 2004) at: p. 183.
[4]See Article 1.1(4) of the UN Law of theSea Convention (UNCLOS), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
[5]See Article 194(1) and (3)(a) of UNCLOS,supra.
[6] See Article 207(1) and (2), UNCLOS, supra.
[7] See Article 207(3), UNCLOS.
[8]This terminology impliedly references other UN environmental treaties that thepresident has quietly submitted to the U.S. Senate Foreign Relations Committeefor ratification, namely, the UN Stockholm Convention on Persistent OrganicPollutants – POPS and the UN Convention on Biological Diversity.
[9]See Article 207(5), UNCLOS.
[10]See Article 212(1) and (2), UNCLOS. Infulfilling these obligations, States shall “tak[e] into account internationallyagreed rules, standards and recommended practices and procedures and the safetyof air navigation.” Art. 212(1). “States shall endeavor to establish global andregional rules, standards and recommended practices and procedures to prevent,reduce and control such pollution. Art. 212(3).
[11] “In the 110th Congress, three bills have beenintroduced that would impose multi-pollutant controls on utilities. They areall four-pollutant proposals that include carbon dioxide.” See Larry Parker and John Blodgett, “Air Quality:Multi-Pollutant Legislation in the 110th Congress”, CRS Report for Congress(May 25, 2007) at p. 2, at: http://www.ncseonline.org/NLE/CRSreports/07Jun/RL34018.pdf.
[12] See e.g.,“IMO Policies and Practices Related to the Reduction of Greenhouse Gas EmissionFrom Ships”, Resolution A.963(23) Adopted December 5, 2003 at: http://www.sof.or.jp/proj/pdf/Res963.pdf. “RECALLING Article 15(j) of the Convention on the International MaritimeOrganization concerning the functions of the Assembly in relation toregulations and guidelines concerning the prevention and control of marinepollution from ships and other matters concerning the effect of shipping on themarine environment, RECALLING FURTHER that, in accordance with Article212 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS),resolution A.719(17) invited theMarine Environment Protection Committee (MEPC) to develop legally bindingmeasures to reduce air pollution from ships through the preparation of a newAnnex to the International Convention for the Prevention of Pollution fromShips, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL73/78), RECALLING ALSO that, on 26 September 1997, the Conference of Parties toMARPOL 73/78 (the Air Pollution Conference) adopted a new Annex VI -Regulations for the Prevention of Air Pollution from Ships - to the Conventionin order to reduce the contribution by shipping to air pollution, NOTING thatthe Air Pollution Conference, by its resolution 8 concerning CO2emissions from ships, invited the Organization, in co-operation with the UnitedNations Framework Convention on Climate Change (UNFCCC), to undertake a study of CO2 emissions from ships forthe purpose of establishing the amount and relative percentages of CO2emissions from ships as part of the global inventory of CO2 emissions... BEINGAWARE ALSO that the Kyoto Protocol, which was adopted by the Conference of the Parties to the UNFCCC inDecember 1997 and has yet to enter into force, requires the countries listed inAnnex 1 to the UNFCCC to pursue the limitation or reduction of GHG emissionsfrom marine bunker fuels, working through IMO (article 2.2), BEING AWARE ALSOthat in its Decision 2/CP.3 the December 1997 Conference of the Parties to theUNFCCC, recalling the 1996 Revised Guidelines for National Greenhouse GasInventories of the Intergovernmental Panel on Climate Change which state thatemissions based upon fuel sold to ships engaged in international transport arenot to be included in national totals but reported separately, urged theConference’s Subsidiary Body for Scientific and Technological Advice (SBSTA) tofurther elaborate on the inclusion of emissions from international bunker fuelsin the overall inventories of Parties to the UNFCCC... BEING CONVINCED that the Organization should take the lead in developing GHG limitation andreduction strategies and mechanisms for international shipping and that, indoing so, it should co-operate with the Conference of the Parties to theUNFCCC... HAVING CONSIDERED therecommendation made by the Marine Environment Protection Committee at itsforty-ninth session, 1. URGES the Marine Environment Protection Committeeto identify and develop the mechanism or mechanisms needed to achieve thelimitation or reduction of GHG emissions from international shipping... REQUESTS the Secretariat of the Organizationto continue co-operating with the Secretariat of UNFCCC and the Secretariat ofthe International Civil Aviation Organization” (emphasis added). Id., at Preamble pp. 1-2; Paragraphs 1 and 3.
[13] “[**The Committee and its Working Group on AirPollution had long and extensive debates on how to follow up resolutionA.963(23) on IMO Policies and Practices Related to theReduction of Greenhouse Gas Emissions from Ships. By the resolution, the Assembly urged MEPC toidentify and develop the necessary mechanisms needed to achieve the limitationor reduction of GHG emissions from international shipping. Among the itemsconsidered was whether only emission of CO2 or of all six greenhouse gasesidentified by the Kyoto Protocol should be included. The MEPC agreed toconsider the follow-up actions to resolution A.963(23) in a technical andmethodological perspective and to concentrate the work on CO2 emissions. The Committee also agreed to continue thework at the next session and, in particular, to consider further a draft workplan to identify and develop the mechanisms needed to achieve the goal set bythe Assembly. Greenhouse gases - In November 2003, IMO adopted resolution A.963(23) IMO Policies andPractices Related to the Reduction of Greenhouse GasEmissions from Ships. At its52nd session in October 2004, the Marine Environment Protection Committee (MEPC)made progress on developing draft Guidelines on the CO2 Indexing Scheme and urged Members to carry out trials using the scheme and to reportto the next session. One purpose of developing guidelines on CO2emission indexing is to develop a simple system thatcould be used voluntarily by ship operators during a trial period. TheCommittee agreed that a CO2 indexing scheme should be simple and easy to apply and take intoconsideration matters related to construction and operation of the ship, andmarket based incentives. At is 53rd session in July 2005, the MEPCapproved Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Usein Trials. Meanwhile, the Committeerecognized that IMO guidelines on greenhouse gas emissions have to address allsix greenhouse gases covered by the Kyoto Protocol (Carbon dioxide (CO2);Methane (CH4); Nitrous oxide (N2O); Hydrofluorocarbons (HFCs);Perfluorocarbonds (PFCs); and Sulphur hexafluoride (SF6)”. See “Air Pollution Rules to Enterinto Force in 2005”, International Maritime Organization Press Release (May2005) at: http://www.imo.org/Newsroom/mainframe.asp?topic_id=848&doc_id=3620. ****It is CRITICAL to note how the European Union has taken control overthis process: “THE SECOND WAY INWHICH THE EU HAS STAMPED ITS AUTHORITY ON OTHER JURISDICTIONS IS THROUGHINFLUENCING THE DECISIONS OF INTERNATIONAL STANDARD-SETTING ORGANIZATIONS ANDGLOBAL REGULATORY BODIES SUCH AS THE INTERNATIONAL MARITIME ORGANIZATION ORUNECE, THE GENEVA-BASED BRANCH OF THE UNITED NATIONS THAT DEALS WITH ECONOMICCO-OPERATION...OFFICIALS IN BRUSSELS SAY THE EU WILL IN THE FUTURE BE IN EVENBETTER SHAPE TO DOMINATE GLOBAL STANDARD-SETTING. THOUGH IT TENDS TO ACT INUNISON, THE EU AFTER ALL WIELDS NOT ONE BUT UP TO 27 VOTES IN BODIES SUCH ASTHE IMO. THIS ENABLED THE UNION TO PERSUADE THE MARITIME GROUPING TO BANSINGLE-HULL TANKER SHIPS FROM INTERNATIONAL WATERS EARLIER THAN MANYNON-EUROPEAN COUNTRIES WANTED.” See Tobias Buck, “Standard Bearer”, FinancialTimes (July 10, 2007) at: http://search.ft.com/ftArticle?queryText=Setter&id=070710000622.
[14]See Article 213, “EnforcementWith Respect to Pollution from Land-based Sources” UNCLOS, supra.
[15] Id., atArticle 222, “Enforcement With Respect to Pollution from or Through theAtmosphere”.
[16]Id., at Article 235(1), “Responsibilityand Liability”, UNCLOS Section 9. “RESPONSIBILITY AND LIABILITY”.
[17] This is likely to include companies that build,operate and/or manage waste water treatment facilities, landfills, hazardouswaste cites, incinerators, industrial facilities, power plants, recreationaltourism facilities, construction works (including dams, coastal structures,harbor works, coastal mining (sand and gravel), research centers, aquaculturefacilities, agricultural and horticultural facilities, mining”, transportationfacilities, etc.” See “GlobalProgramme of Action for the Protection of the Marine Environment fromLand-Based Activities”, United Nations Environment ProgrammeUNEP(OCA)/LBA/IG.2/7 (Dec. 5, 1995) at pp. 12-13, at: http://www.gpa.unep.org/documents/full_text_of_the_english.pdf.
[18] “2. States shall ensure that recourse is available inaccordance with their legal systems for prompt and adequate compensation orother relief in respect of damage caused by pollution of the marine environmentby natural or juridical persons under their jurisdiction. 3. With the objectiveof assuring prompt and adequate compensation in respect of all damage caused bypollution of the marine environment, States shall cooperate in theimplementation of existing international law and the further development ofinternational law relating to responsibility and liability for the assessmentof and compensation for damage andthe 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” (emphasis added). Id., at Article 235(2) - (3).
[19] “The Council of Europe adopted on November 4, 1998, theConvention on the Protection of the Environment through Criminal Law, E.T.S.172. The provisions call for administrativesanctions for less serious offenses, while serious, intentional offenses shouldresult in imprisonment or fines andmay call for reinstatement of the environment (Art. 6) or confiscation ofprofits (Art. 7). The text also calls for criminalizing acts that ‘endanger’the environment by creating a significant risk of serious harm. Article 2 listscategories of intentional offenses that the states parties must declarecriminal both as to the principals and those aiding and abetting the commissionof the offenses” (emphasis added). See Dinah Shelton and Alexandre Kiss, JudicialHandbook on Environmental Law, UnitedNations Environment Programme (2005) at p. 57, at: http://www.unep.org/law/PDF/JUDICIAL_HBOOK_ENV_LAW.pdf.
[20]See “EU Hides Behind Private Standardsin Effort to Secure Global Regulatory Control”, Institute for Trade, Standardsand Sustainable Development, PR Newswire (Oct. 9, 2007) at: http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-09-2007/0004678304&EDATE=.
[21]See Lawrence A. Kogan, “Europe’sWarnings on Climate Change Belie More Nuanced Concerns”, Institute for Trade,Standards and Sustainable Development (June 2006) at: http://www.itssd.org/White%20Papers/Europe_sWarningsonClimateChangeBelieMoreNuancedConcerns.pdf.
[22]See Lal Krukulasuriya and Nicholas A.Robinson, Training Manual on International Environmental Law, UnitedNations Environment Programme (2005) atpar. 7, at p. 147, at: http://www.unep.org/law/PDF/law_training_Manual.pdf.
[23]Id., at par. 21, at p. 150.
[24]See Dinah Shelton and Alexandre Kiss, JudicialHandbook on Environmental Law, supra at pp.71-72.
[25]See “The Global Programme of Action forthe Protection of the Marine Environment from Land-Based Activities”, UnitedNations Environment Program at: http://www.gpa.unep.org.
[26]See “Montreal Guidelines for theProtection of the Marine Environment Against Pollution from Land-Based Sources”,Decision 13/18/II of the Governing Council of UNEP (May 24, 1985), at: http://www.unep.org/law/PDF/UNEPEnv-LawGuide&PrincN07.pdf. “These guidelines are suggested as a broad framework for the development ofsimilar agreements in those regions where such agreements are called for; forthe guidance of Governments in areas which are not at present covered by anyregional agreements; and for the preparation in the long term, should the needarise, of a global convention on pollution from land-based sources designed to strengthen international institutionalarrangements to ensure the harmonization and application of global and regionalrules, criteria, standards and recommended practices and procedures and toreview the effectiveness of measures taken” (emphasis added). Id., at p. 2.
[27]“This set of guidelines is addressed to Governments with a view to assistingthem in the process of developing appropriate bilateral, regional andmultilateral agreements and national legislation for the protection of themarine environment against pollution from land-based sources. They have beenprepared on the basis of common elements and principles drawn from relevantexisting agreements, drawing upon experience already gained through theirpreparation and implementation. Principal among these agreements are theUnited Nations Convention on the Law of the Sea (Part XII), the Paris Convention for thePrevention of Marine Pollution from Land-based Sources, the Helsinki Convention on the Protection of theMarine Environment of the Baltic Sea Area, and the Athens protocol for theProtection of the Mediterranean Sea against Pollution from Land-BasedSources” (emphasis added). Id.
[28] See LalKrukulasuriya and Nicholas A. Robinson, Training Manual on International EnvironmentalLaw, United Nations Environment Programme supra, at par. 22, at p. 150.
[29] According to the 1985 document, the term ‘land-basedsources’ is defined as: “Municipal, industrial or agricultural sources, bothfixed and mobile, on land, discharges from which reach the marine environment,in particular: a. From the coast, including from outfalls discharging directlyinto the marine environment and through run-off; b. Through rivers, canals ofother watercourses, including underground watercourses; and c. Via theatmosphere: (ii) Sources of marine pollution from activities conducted onoffshore fixed or mobile facilities within the limits of nationaljurisdiction...” It also defined the term ‘marine environment’ as “the maritimearea extending, in the case of watercourses, up to the freshwater limit andincluding inter-tidal zones and salt-water marshes” and the term ‘freshwaterlimit’ as “the place in watercourses where, at low tide and in a period of lowfreshwater flow, there is an appreciable increase in salinity due to thepresence of sea water.” See“Montreal Guidelines for the Protection of the Marine Environment AgainstPollution from Land-Based Sources”, at p. 3.
[30] See “WashingtonDeclaration on Protection of the Marine Environment from Land-Based Activities”(Nov. 1, 1995) at: http://www.gpa.unep.org/documents/washington_declaration_english.pdf. “Having therefore adopted the Global Programme of Action for the Protectionof the Marine Environment from Land-based Activities, Hereby declare theircommitment to protect and preserve the marine environment from the impacts of land-basedactivities, and Declare theirintention to do so by: 1. Setting as their common goal sustained andeffective action to deal with all land-based impacts upon the marine environment, specifically thoseresulting from sewage, persistent organic pollutants, radioactive substances,heavy metals, oils (hydrocarbons), nutrients, sediment mobilization, litter,and physical alteration and destruction of habitat” (underlined emphasis inoriginal; italicized emphasis added). Id., at p. 1.
[31] See“Global Programme of Action for the Protection of the Marine Environment fromLand-Based Activities”, supra.
[32] “Areas of concern (what areas are affected orvulnerable): (not listed in order of priority) (i) Critical habitats, including coral reefs,wetlands, seagrass beds, coastal lagoons and mangrove forests; (ii) Habitats ofendangered species; (iii) Ecosystem components, including spawning areas,nursery areas, feeding grounds and adult areas; (iv) Shorelines; (v) Coastalwatersheds; (vi) Estuaries and their drainage basins; (vii) Specially protectedmarine and coastal areas; and (viii) Small islands.” Id., at p. 14.
[35]Id., at p. 39, par. 104(b)(i).
[36]Id., at p. 42, par. 111(a).
[37]Id., at p. 45, par. 118(b)(i).
[38]Id., at p. 47, par. 124(b)(i).
[39] See“Adoption of the GPA at the Washington Conference (1995) 108 Countries”, UnitedNations Environment Program at: http://www.gpa.unep.org/documents/adoption_gpa_washington_conference_english.pdf.
[40] “Regulation is familiar, has a perceived high degreeof certainty, and is compatible with existing legal frameworks. On the otherhand, it imposes a high enforcement burden, is inflexible and ofteneconomically inefficient, and fails to provide incentives for continuingimprovements. Economic instruments increase economic efficiency by devolvingdecision-making to the target sector, provide incentives for continuingimprovement, increase flexibility, and in some cases reduce the enforcementburden. Their disadvantages include political barriers to setting charges andtaxes high enough to alter environmentally damaging behaviour – or to providingsubsidies and other incentives for desirable behaviour - and perceiveduncertainty about their cost effectiveness. Voluntary action by industry may alsoreduce the enforcement burden, increase economic efficiency, enhanceflexibility, and allow the use of industry knowledge to developindustry-specific solutions consistent with business goals.” See “Protecting the Oceans from Land-based Activities:Land-based Sources and Activities Affecting the Quality and Uses of the Marine,Coastal and Associated Freshwater Environment”, Joint Group of Experts on theScientific Aspects of Marine Environmental Protection, United NationsEnvironment Programme (Jan. 15, 2001), Executive Summary at pp. 3-4, at: http://www.jodc.go.jp/info/ioc_doc/GESAMP/report71.pdf.
[41] “A number of international agreements contain generalprovisions for the protection and preservation of the marine environment Amongthe more important are: Part XII of the United Nations Convention on theLaw of the Sea – UNCLOS...Thesustainable development of coastal and marine areas requires selecting a suiteof these [tools and measures], tailored to local, national, and regionalcircumstances within a framework of cross-sectoral management. The suitabilityof a given measure usually depends less upon its inherent technical merits thanupon its benefits and costs relative to other measures, upon the priority ofthe issue that the measure addresses, and most importantly, upon the prospectsfor effective implementation. Thereare three main types of policy instruments to induce implementation:regulations; economic instruments; and instruments to induce voluntary action.”See “Protecting the Oceans fromLand-based Activities: Land-based Sources and Activities Affecting the Qualityand Uses of the Marine, Coastal and Associated Freshwater Environment”, supra, ExecutiveSummary at p. 3.
[43] “Under normal market conditions, resource use isneither rational - viewed from the perspective of overall benefit to society -nor equitable, because the market does not reflect the costs of private actionsthat are borne elsewhere either publicly or privately, such as theenvironmental costs of wetland drainage or of environmentally harmful effluentdischarged into a river. This market failure arises from a discrepancy between private andsocietal interests. This discrepancy can be corrected through a range ofmeasures, including regulatory and economic instruments and the creation ofprivate or public property rights”(emphasis added). Id., at p. 76.
[44] “Promotion of Efficient Resource Use Policies thatpromote technical economic efficiency without infringing equity (fairness) orenvironmental considerations will promote the welfare of present and futuregenerations. Elements would include: allocating property or use rights”. Id.,at p. 78. “In the absence of a sound environmental policy, land-basedactivities generate negative externalities,represented by the degradation of marine and coastal resources as markets failfully to reflect their value. The failure of governance associated with suchmarket failure allows the root causes to have a devastating effect on naturalresources and ecosystems. Allocating resources through establishment ofproperty and use rights is central to overcoming this failure” (emphasis added). Id., at pp. 116-117.
[46] Id., atp. 111. “In addition other toolsare available, including the “establishment of an institutional framework (e.g.enabling legislation for agencies); establishment of regulations, criteria,standards, and implementation guidance, with associated provisions forenforcement; establishment of protected areas; zoning, set back lines andadministrative controls on development; restrictions on certain agriculturaland forestry practices that result in soil erosion or excessive depletion ofstanding forest; and EIA requirements. Id. “The rational and equitableallocation of property or use rights is the key element in policies to correctmarket failure. Priority actions: useprice mechanisms where appropriate to bring the scarcity of resources and theinternalization of environmental costs to bear on decision making; whereeconomic instruments are not appropriate, use regulatory instruments, such aszoning, or organizational instruments, such as the establishment of communitymanaged areas; promote the creation of individual and common property rights;maintain or re-establish customary rights” (emphasis added). Id., at p. 124.
[47] See Lal Krukulasuriya and Nicholas A. Robinson, TrainingManual on International Environmental Law, United Nations Environment Programmesupra, at par. 21, at p. 150.
[48] “The precautionary approach today is endorsed internationally as a fundamentalpolicy. It is absolutely critical that such an approach is utilized for ourworld’s oceans... We have generally exploited our resources, in the oceans ason land, in absence of unanimousagreement that these resources are at risk. As a result, proof of our error isbeginning to pour in. The draft report from the federal oceans commissionconcluded last year that our oceans are in trouble. Specifically, the troublecomes from overfishing, coastal development and habitat loss, runoff andpoint source pollution and climatechange...The environmental community noted in 1998 that the concept‘precautionary principle’ did not exist at the time UNCLOS was negotiated, andthat consequently the term did not appear in the Convention. However, we urgedthen and TOC urges now that the United States play a leadership role in futureConvention amendments to ensure the appropriate application of this principle to guide decision-making. Fortunately, theConvention, as a constitution, does establish some principles and tools thatmay provide a framework for future application of the precautionary approach. Moreover, subsequent multilateral agreementsrelated to UNCLOS do include use of the precautionary principle, including the Straddling Stocks Agreement. Wetherefore believe this approach is compatible with UNCLOS and urge the UnitedStates to work to ensure that subsequent changes to UNCLOS appropriatelyutilize the precautionary approach”(emphasis added). See PREPARED STATEMENT OF VICE ADMIRAL ROGER T. RUFE,JR., USCG (RET.), PRESIDENT, THE OCEAN CONSERVANCY, WASHINGTON, DC, before TheCommittee on Foreign Relations, United Nations Convention on the Law of theSea, Senate Executive Report 108-110 (March 11, 2004) at pp. 130-131, at: http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.181&filename=er010.pdf&directory=/diska/wais/data/108_cong_reports.