Thursday, January 17, 2008

Myth & Realities # 2 Concerning UN Law of the Sea Treaty

U.S. Naval Freedom of Navigation and Avoidance of LOST Tribunal Jurisdiction, Despite Europe’s Aggressive Use of the Precautionary Principle?

By Lawrence A. Kogan, Esq.

Myth #2A: The U.S. Navy Can Secure Freedom of Navigation While Avoiding LOST Tribunal

The following discussion is intended to prompt consideration of how international (including U.S.) advocates for greater global environmental regulation (governance) of marine pollution, on the high seas and in both foreign and U.S. exclusive economic zones and territorial waters, are endeavoring to limit the U.S. military’s right to freedom of navigation. These groups seek to achieve this goal by employing the environmental articles, principles and/or rules of the UN CLOS/LOST, of related United Nations Environment Program (UNEP) treaties, and of the International Maritime Organization (IMO). A follow-up paper in the ITSSD Journal series, “Myths & Realities on the UN Law of the Sea Treaty”, will demonstrate how such practices are effectively limiting the U.S. Navy’s use of underwater sonar during peacetime military exercises, which impairs not only the U.S. Navy’s freedom of navigation, but also threatens U.S. national security interests.

This discussion, in particular, begins by setting forth the congressional testimonies of several prominent U.S. public officials, which arguably reveal an unrealistic and outdated assessment of the LOST and the current state of affairs ‘on the ground’ and ‘in the waters’ surrounding it. In addition, this discussion will lay bare the efforts of other LOST contracting parties and many within the international legal and environmental communities at large to globally employ environmental measures in an effort to limit what U.S. public officials have long believed to be the absolute customary international law right of freedom of navigation.

Each of the witnesses cited below has argued that it is better for the US ‘to be at the table’ than not to be, in order to influence the development and shape of international legal norms that could otherwise adversely impact the U.S. right to freedom of navigation. However, a close look at some of their testimonies reflects that they are reluctant for the U.S. military to submit to LOST arbitral tribunal jurisdiction for the purpose of defending that right, except in specially selected circumstances that they have failed to identify. In fact, they seem self-obsessed with the ability of the U.S. military to unilaterally define under the terms of the LOST which of its activities are ‘military’ in nature, and thus exempt from LOST arbitral jurisdiction, even though, in reality, this is unlikely to be the case. Yet, these witnesses fail to mention how U.S. military efforts in this regard can be, and are actually being, seriously undermined by other LOST contracting parties and the more influential members of the international environmental community. As this paper will discuss, the activities of these governmental and nongovernmental actors have steadily eroded the scope of ‘military’ activities that fall outside public scrutiny, and consequently, the LOST exemption. This is especially true if they are deemed to adversely impact (‘pollute’) the marine environment as that term is broadly defined by the LOST.

“Article 298 of the Convention permits nations to opt out of the dispute settlement provisions for military activities, and under the President’s submission, as embodied in the Senate draft resolution of advice and consent, this option is unmistakably exercised for the United States. Further, the scope of dispute settlement is severely cabined in general... under the President’s submission, as embodied in the Senate draft resolution, the United States will be accepting ‘special arbitration’ as our preferred modality of dispute settlement rather than the International Court of Justice (the World Court)... The severely cabined dispute settlement procedures in the Law of the Sea Convention are far more restrictive than in most of the other dispute resolution provisions already binding on the United States... [A]s noted above, in the Law of the Sea Convention we have chosen special arbitration rather than the International Court of Justice” (emphasis added). [1]

PREPARED TESTIMONY OF JOHN NORTON MOORE, Walter L. Brown Professor of Law at the University of Virginia School of Law and Director of the Center for Oceans Law and Policy

“The Senate can ensure that international tribunals do not gain jurisdiction over our military activities when we join this Convention. In 2003, the Administration worked closely with the Committee to develop a proposed Resolution of Advice and Consent --- which we continue to support --- that contains a declaration regarding choice of procedure for dispute resolution. The United States rejected the International Court of Justice and the International Tribunal for the Law of the Sea and instead chose arbitration. That choice-of-procedure election is expressly provided for in the Convention itself. In addition, and again in accordance with the express terms of the Convention, the draft Resolution of Advice and Consent completely removes our military activities from the dispute resolution process. Furthermore, each State Party, including the United States, has the exclusive right to determine which of its activities constitutes a military activity, and that determination is not subject to review” (emphasis added). [2]


Reality #2A: The U.S. Navy Can NOT Secure Freedom of Navigation While Avoiding LOST Tribunal Jurisdiction

As reflected in the following testimonies, the U.S. government believes that U.S. participation in LOST will guarantee the preservation of the traditional customary international law right of freedom of navigation, and thus, the U.S. military’s right during peacetime to freely engage in military exercises in the world’s oceans whenever and wherever it wishes WITHOUT first securing the ‘permission slip’[3] of other nations and nongovernmental environmental groups. At the same time, these officials acknowledge the increasing number of incidents of contrary LOST interpretations employed by other LOST contracting parties, particularly the nations of Europe, and even Australia. Reasonable persons, therefore, may be inclined to ask how government officials in both the U.S. Navy and the U.S. Departments of State and Defense intend to address the growing international opposition to the U.S. interpretation of LOST provisions if the U.S. government is to abstain from most LOST arbitral jurisdiction.

In fact, reasonable persons may conclude, in light of such contrary interpretations and organized opposition to U.S. interests, notwithstanding the testimonies proffered, that the U.S., “by joining the Convention [at the present time], will be [un]able to provide the firmest possible legal foundation for the rights and freedoms needed to project power, reassure friends and deter adversaries...” or “to exercise high seas freedoms in foreign exclusive economic zones, including conducting military activities without coastal state interference”. Indeed, as a forthcoming ITSSD Journal paper will demonstrate by reference to actual events ‘on the ground’ and ‘in the waters’, the U.S. Navy currently does NOT possess, in practice, the absolute right to freedom of navigation notwithstanding its representations to the contrary. It will also highlight how the U.S. would be unable, without the formulation of an informed and well considered strategy beforehand, to effectively oppose the introduction and application of new international environmental legal norms being developed in the multiple UNEP treaty secretariats currently dominated by the European Union and its Member States that have been influencing the evolving interpretation of the LOST.

In other words, it would be unwise for the U.S. to join the LOST at the present time without having first thoroughly vetted the LOST in congressional public hearings convened in both the U.S. House of Representatives as well as in the U.S. Senate, without having honestly informed the American public what they may realistically expect from U.S. ratification of the LOST. It would also arguably be unwise to ratify the LOST without the administration having first formulated and reviewed an effective proactive strategy that is likely to be successful when employed. Despite this reality, however, it seems that a legacy-orientated administration and a legitimacy-seeking U.S. Senate Foreign Relations Committee are poised to submit the LOST to a Halloween vote,[4] which would be tantamount to openly violating Americans’ constitutional rights to due process and private property. It would also consign U.S. sovereignty and national security concerns over to not only other LOST contracting parties, including the EU and its member states, but also to the UNEP treaty secretariats and other related United Nations agencies as well!

Myth #2B: Ratifying the LOST Will Secure U.S. Interests, Despite Europe’s Aggressive Use of
LOST’s Environmental Provisions and the Precautionary Principle

“Proponents of ratifying the Law of the Sea argue that active U.S. participation in the Convention and Agreements will guarantee the protections and restrictions are applied in a fair and commensurate manner. I urge caution: the Law of the Sea Convention and other related agreements must not be open ended; provisions must be specific and precise to prevent future misinterpretation. If those determinations are not clear, later interpretations will seriously erode U.S. policy” (emphasis added). [5]


“As the world’s foremost maritime power, our security interests are intrinsically linked to freedom of navigation. America has more to gain from legal certainty and public order in the world’s oceans than any other country. By joining the Convention, we provide the firmest possible legal foundation for the rights and freedoms needed to project power, reassure friends and deter adversaries, respond to crises, sustain combat forces in the field, and secure sea and air lines of communication that underpin international trade and our own economic prosperity.

...Specifically, the legal foundation of this Convention: Establishes the Right of Transit Passage through, under, and over international straits and the approaches to those straits. This right, which may not be suspended, hampered or infringed upon by coastal States, is absolutely critical to our national security... Establishes the Right of Archipelagic Sealane Passage, which, like Transit Passage, helps ensure free transit through, under, and over the sealanes of archipelagic nations, such as Indonesia. Secures the right to exercise High Seas Freedoms in exclusive economic zones, the 200 nautical mile-wide bands of ocean off coastal shores. The Department’s ability to position, patrol, and operate forces freely in, below, and above those littoral [6] waters is critical to our national security...” (emphasis added). [7]


“The Convention also allows us to exercise high seas freedoms in foreign exclusive economic zones, including conducting military activities without coastal state interference. And this is important---the single most contentious issue in oceans law and policy today is the attempt by some foreign coastal States to treat the exclusive economic zone – or EEZ — like a territorial sea. The Convention makes clear that coastal States enjoy resource rights within the EEZ, but they do not enjoy and may not assert full sovereignty within the EEZ” (emphasis added). [8]


“The Law of the Sea Convention supports our ability to operate wherever, whenever and however needed under the authority of widely accepted law. The Convention codifies the Right to Transit through, over and under essential international straits and archipelagic waters. It reaffirms the sovereign immunity of our warships and other public vessels. It provides a framework to counter excessive claims of states that seek illegally to expand their maritime jurisdiction and restrict the movement of vessels of other States in international and other waters. And, it preserves our right to conduct military activities and operations in Exclusive Economic Zones without the need for permission from or prior notice to foreign governments.... The customary international law we have relied upon for our navigational freedoms is under challenge. Our participation in the Convention will better position us to maintain law of the Sea rights and freedoms vital to our national security. We will be able to guide and influence the interpretation of rules, protecting our interests and deflecting inconsistent interpretations. The Agreement is being interpreted, applied and developed right now and we need to be part of it to protect our vital security interests.” [9]


Reality #2B: Ratifying the LOST Will Undermine U.S. Interests Due to Europe’s Aggressive Use of the LOST’s Environmental Provisions and the Precautionary Principle

Based on the proffered testimonies of Messrs. Moore, England, Stevens, Walsh and Clark, there appear to be a number of inconsistencies which raise some important questions. First, since the LOST does not have a treaty secretariat of its own that meets regularly to discuss LOST matters, other than the International Seabed Authority which regulates mining and environmental protection concerning the ‘Area’ and surrounding waters and airspace,[10] how does the U.S. as a contracting LOST party plan on shaping the interpretation, application and development of LOST’ freedom of navigation rules other than via the LOST dispute settlement procedures? And, if that is the case, and the U.S. military must nevertheless ensure that its freedom of navigation rights are preserved globally, why would the U.S. wish, and how could it believe that it would actually be able, as Professor John Norton Moore emphasizes, to “severely cabin” or otherwise “exempt U.S. military activities” from LOST dispute settlement procedures?

Granted, the U.S. government’s decision to restrict LOST jurisdiction only to LOST Annex VIII Special Arbitration proceedings, as made available by LOST Article 287(1)(d), would provide the U.S. with a greater role than it otherwise would have in selecting arbitral tribunal/panel participants not necessarily hostile to U.S. interests; but that does NOT in any way guarantee a positive arbitral outcome. Furthermore, it is arguable whether or not the U.S. military will be successful in unilaterally defining what are or are not ‘military’ activities for purposes of qualifying for the LOST Article 298 exemption from jurisdiction - even from Special Arbitration proceedings, notwithstanding Judge Advocate General Corps (JAGC) assurances to the contrary. Subsections (1)(a)-(c) of LOST Article 298 are very clear about which categories of disputes are eligible for the opt-out,[11] and environmental matters involving coastal states which, according to LOST Article 297(1)(c), may be arbitrated pursuant to Annex VIII Special Arbitration Article 1, are NOT among them.

These facts give rise to a third question. If LOST freedom of navigation rules are considered “widely accepted law”, and LOST is deemed to codify existing customary international law on freedom of navigation, why then do former Admiral Clark and Senator Stevens warn that the “customary international law we have relied upon for our navigational freedoms is [currently] under challenge” and/or subject to “future misinterpretation”? This would seem to strongly suggest that at least some U.S. political and military officials are concerned that coastal state application and enforcement of environmental norms contained within both the LOST AND other ‘related’ UN environmental treaties, and perhaps those even within the IMO, where there are secretariats actively promoting new international legal norms as well as new interpretations of existing norms, can be used, and have actually served, to impair what have long been considered ‘absolute’ freedom of navigation rights possessed by the U.S. military during peacetime.

Reasonable persons, therefore, are likely to question the relationship between the LOST and the several other Precautionary Principle-based wildlife and nature-focused UNEP treaties that the administration also submitted to the U.S. Senate Foreign Relations Committee for ratification alongside the LOST.[12] They include a protocol to the UNEP-managed[13] mini-LOST in the Caribbean region[14] dealing with ‘land-based’ [15] sources of marine pollution.[16] [17] In addition, there is the 1983 amendment[18] to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)[19] and the Convention on Biological Diversity,[20] two environmental agreements directly related to protecting marine life, including both migratory fish and birds, consistent with Parts VII, Section 2 [21] and XII[22] of the LOST. European Union officials have expressly referred to the UNCLOS/LOST and the UN Convention on Biological Diversity as being integral to their efforts to employ the Precautionary Principle globally.[23] And, reasonable persons may also inquire about the relationship between the LOST and two Precautionary Principle-based UNEP chemicals treaties (the Stockholm Convention on POPS[24] and the PIC Rotterdam Convention[25]). Presumably, this administration has, like the Clinton-Gore administrations before it, once again[26] submitted these agreements to the SFRC for ratification alongside the LOST, because they would relate to how the U.S. intends to regulate land-based marine pollution[27]* emanating from sources located within the sovereign territory of the U.S., consistent with the obligations the U.S would assume upon LOST ratification. All of these agreements, especially the LOST, ratification of which were promoted previously by the Clinton-Gore administrations,[28] are now championed by the EU and its member states [29] as well as by the international environmental activist community.

Research has revealed how the U.S. Navy’s current refusal to acknowledge or admit this LOST reality, which may be gleaned from the public hearing testimonies recently proffered to the U.S. Senate Foreign Relations Committee, as noted above, can be traced back to the military’s prior focus during the Clinton-Gore administrations on the environmental dimensions of “military operations other than war”.[30] During that era, in other words, U.S. military resources, including those of the U.S. Navy, had been systematically re-orientated towards ensuring marine environmental stewardship as part of an integrated and revised U.S. national military/political strategy.[31]Arguably, to the extent this mode of thinking persists today within the ranks of the U.S. military, it arguably impairs the sound professional judgment of the U.S. Navy’s officer corps (which currently supports LOST ratification) and will continue to interfere with the U.S. maritime services’ primary role of projecting American power abroad in order to prevent and/or resolve international conflicts and to ensure the security of the American homeland.[32]

In addition, such thinking partly explains why international environmental activists and foreign governmental LOST proponents, namely the European Union and its member states, believe that they need only wait until the next American presidential election before seeking even greater global coordinated environmental regulation of and control over [33] the ‘marine environment’, broadly defined to include the high seas, foreign and U.S. exclusive economic zones and foreign and U.S. territorial waters and land masses. Indeed, LOST proponents intend to, and in some cases, have already begun to, aggressively employ the environmental articles of the LOST and those of numerous other related United Nations Environment Program treaties[34] which they have interpreted as incorporating the contra-WTO Precautionary Principle.[35] In some cases, the EU and its member states have also invoked certain rules of the International Maritime Organization (IMO), given their ability to outvote the United States at this intergovernmental forum,[36] in an effort to effectively restrict the U.S. military’s so-called ‘absolute’ right to freedom of navigation. As noted above, a forthcoming ITSSD Journal “Myths & Realities on the UN Law of the Sea Treaty” paper will demonstrate how this environmental agenda has severely limited, if not arrested, the U.S. military’s use of underwater sonar during naval exercises in numerous instances, and thus, undermined its ability to fulfill its obligation to protect the American people from potential threats emanating from abroad.

[1] See “Prepared Testimony of John Norton Moore, Before the Senate Committee on Armed Services – Senate Advice and Consent to the Law of the Sea Convention” (April 8, 2004) at p. 18, at:
[2] See “Written Testimony of Deputy Secretary of Defense, Gordon England, Before the Senate Foreign Relations Committee – Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention”, (Sept. 27, 2007) at p. 6, at:
[3] “According to the U.N., the purpose of LOST is to preserve international waters for peaceful purposes. But Articles 19 and 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other countries without their expressed permission. Military aircraft are prohibited specifically from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading ‘any commodity, currency or person’ including military equipment. Submarines are required to travel on the surface and ‘show their flag in territorial waters.’ Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes about these issues would be adjudicated by international lawyers...LOST's proponents discount these concerns by claiming the U.S. simply will exempt military activities from the treaty's compulsory dispute resolution requirements. However, the ‘opt out’ clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so it is far from certain that the U.N. would accept the U.S. position that intelligence operations over, on or under the seas are indeed military activities. If there is a dispute as to what is or isn't a military activity, LOST requires the matter to be resolved by international arbitration. In 2003, Navy Adm. Michael Mullen, now the chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels ‘could have an impact on operational planning and activities, and our security.’ Last week, in response to questions from Sen. David Vitter, R-La., during a committee hearing, professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can't agree on the arbitration panel, the U.N. secretary-general will choose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: Call Turtle Bay” (emphasis added). See Oliver North, “Permission Slip for the Sea”, Townhall blog (Oct. 12, 2007) at: [4] “The [Senate Foreign Relations] Committee Will Consider and Vote on the Following Agenda Items: Treaties: 1. Convention on the Law of the Sea (T. Doc.103-39)”. See “Business Meeting HEARING before the COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION” (Oct. 31, 2007) at:
[5] See “Statement of Senator Ted Stevens On the UN Convention on the Law of the Sea”, Committee on Foreign Relations (Oct. 14, 2003) October 14, 2003 at p. 7, at:
[6] The term ‘littoral’ refers to the coast of an ocean or sea, or to the banks of a river, lake or estuary. It is usually used as an adjective but may also be used as a noun. The littoral zone is defined as the area between the high water and low water marks.” See Wikipedia, the Free Encyclopedia at:
[7] See “Written Testimony of Deputy Secretary of Defense, Gordon England, Before the Senate Foreign Relations Committee, supra at pp. 2-3.
[8] See Statement of Admiral Patrick M. Walsh, U.S. Navy Vice Chief of Naval Operations Before the Senate Committee on Foreign Relations Hearing on the Law of the Sea Convention (Sept. 27, 2007) at p. 5, at: .
[9] See Statement of Admiral Vernon Clark, U.S. Navy (Ret.), Former Chief of Naval Operations, Before Committee on Foreign Relations, United States Senate, One Hundred Tenth Congress, First Session (Oct. 4, 2007) at p. 3, at:
[10] See “Myths and Realities Concerning UN Law of the Sea Treaty – LOST Does Incorporate Europe’s Contra-WTO Precautionary Principle!” at:
[11] LOST Article 298(2) provides that “A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention”. This raises the possibility that a future presidential administration could later make the political decision of submitting the U.S. military to UNCLOS binding dispute resolution on this issue even if the US originally opted out upon ratification/accession. According to Article 298(3), if the U.S. subsequently chose to submit/initiate a dispute without withdrawing its exemption declaration, it would need to secure the consent of the LOST Party it seeks to challenge.
[12] See “Treaties Pending in the Senate (Updated as of October 1, 2007)”, U.S. Department of State at: ; . Each of these treaties would influence U.S. federal regulation of U.S.-based activities. In particular, the Eastern and Gulf Coast states would initially bear the burden of the LOST’s direct relationship with the Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, described below, which would effectively require the federal state and local governments to regulate the effluent ‘outflows’ from private homes. A future ITSSD Journal entry on the Myths & Realities Concerning the UN Law of the Sea Treaty will address this issue in greater depth than is herein possible.***
[13] “On the initiative of several Caribbean states, the Governing Council of UNEP decided in 1974 that ‘UNEP should concentrate... on the protection of the marine environment’, and stressed ‘the importance of activities in the Caribbean (Decision8/11)... The Regional Seas Programme was initiated by UNEP in 1974”. Since then, the Governing Council of UNEP has repeatedly endorsed a regional approach to the control of marine pollution and the management of marine and coastal resources and has requested the development of regional actions plans. See “Action Plan for the Caribbean Environment Programme – UNEP Regional Seas Reports and Studies No. 26 at p. 3, at:
[14] “The LBS Protocol is an important instrument to assist States in the WCR to achieve the goals and obligations of two international agreements as well. The United Nations Convention on the Law of the Sea calls upon States to adopt laws and regulations to prevent, reduce, and control, pollution of the marine environment from land-based sources. The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA), adopted in Washington in 1995, also highlights the need for action to reduce the pollutant load to the seas from land-based sources and activities. Both of these instruments emphasize the need to act at the regional level to address this problem... This Protocol is the first regional environmental agreement where effluent limitations and other obligations are required within a given time frame for specific sources of pollution and may serve as a model to others” (emphasis added). See Land-Based Sources of Marine Pollution in the Wider Caribbean Region A Protocol for Action”, LBS Protocol Fact Sheet, UNEP (June 2005) at pp. 1-2, at:
[15] The focus of this agreement further corroborates the findings of a recently issued ITSSD Journal paper. See “Myths & Realities #4 Concerning UN Law of the Sea Treaty - LOST, Land-Based Activities & Sources of Marine Pollution”, ITSSD Journal on the Law of the Sea (Oct. 17, 2007) at:
[16] See “Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, with Annexes”, done at Oranjestad, Aruba, on October 6, 1999, and signed by the U.S. on that same date (Treaty Doc. 110-1); submitted to Senate February 16, 2007. See e.g., “PROTOCOL CONCERNING POLLUTION FROM LAND-BASED SOURCES AND ACTIVITIES TO THE CONVENTION FOR THE PROTECTION AND DEVELOPMENT OF THE MARINE ENVIRONMENT OF THE WIDER CARIBBEAN REGION” at: See also “Article 7 POLLUTION FROM LAND-BASED SOURCES - Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region”, at: . “The main text of the Protocol sets forward general obligations and a legal framework for regional co-operation. The operative Annexes, however, describe the work that each Contracting Party must comply with, as well as to give direction to the development of regional actions. Annex I establishes a list of land-based sources and activities and their associated contaminants of greatest concern to the marine environment of the Wider Caribbean. Annex II outlines and establishes the process for developing regional standards and practices for the prevention, reduction, and control of the sources and activities identified in Annex I. Annex III establishes specific regional effluent limitations for domestic sewage and Annex IV requires each Contracting Party to develop plans, programmes and other measures for the prevention, reduction and control of agricultural non-point sources, respectively... The Protocol is a regional mechanism assisting the United Nations Member States in the Wider Caribbean Region to meet the goals and obligations of two international agreements: The United Nations Convention on the Law of the Sea (UNCLOS) and the Global Plan of Action for the Protection of the Marine Environment from Land-Based Activities (GPA). UNCLOS calls upon States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources. The GPA highlights the need for action to reduce the pollutant load to the seas from land-based sources and activities. Both of these instruments emphasise the need to act at the regional level to address this problem” (emphasis added). See “Protocol Concerning Pollution from Land-based Sources and Activities - Overview of the LBS Protocol” at: Indeed, there are 11 mini-LOST regional agreements around the world! See “United Nations Environment Programme Regional Seas Programme” website at:
[17]The UNEP has sponsored at least one “training course targeted at municipal wastewater managers in coastal cities in developing countries...[in the Caribbean]. The course, which had been developed jointly with the United Nations Educational, Scientific and Cultural Organization (UNESCO)-IHE Institute for Water Education, the United Nations Division for Ocean Affairs and the Law of the Sea and the UNEP Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, was taken by representatives of small island developing States from various regions” (emphasis added). See “State of the Environment and Contribution of the United Nations Environment Programme to Addressing Substantive Environmental Challenges - Report of the Executive Director” UNEP/GC.23/3/Add.6/Rev.1 (Jan. 20, 2005) at par. 19(h) at p. 6, at: . The Caribbean Regional Coordinating Unit (CAR/RCU) of UNEP is located in Kingston, Jamaica [also where the International Seabed Authority is based]. It was created in 1986 and serves as Secretariat to the Caribbean Environment Programme (CEP).
[18] “Amendment to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)”, done at Gaborone April 30, 1983 (Treaty Doc.: 98-10); submitted to Senate October 4, 1983. See “Gaborone Amendment to the Text of the Convention” [which permits to permit accession by regional economic integration organizations such as the European Communities] at: .
[19] The United States is a party to the CITES, having ratified it in 1974. CITES regulates the protection of over 30,000 plant and animal species depending on their biological status and the impact that international trade may have upon them. CITES arguably incorporates a later resolution adopted by the Conference of the Parties (COP) at its 9th meeting during November 1994, subsequent to the Convention entering into force. Although only a guidance document, the resolution is intended to provide a process for determining the status of species to be included within either of the Convention’s Appendices, as amended from time to time. Consistent with the Kyoto and Montreal Protocols, the POPs Treaty and the PIC Procedure, the resolution’s language refers to the precautionary measures that must be taken. In this case, the precautionary measures referred to are those that determine, based on ‘sufficient available data,’ which species satisfy the Convention’s criteria in order to be listed within either of the Appendices. Resolution 9.24—‘Criteria for Amendment of CITES Appendices I and II of the Convention’ has been revised several times. The most recent proposed version of this Resolution reads as follows: RESOLVES that, when considering proposals to amend Appendices I and II [of the Convention], the following applies: f ) species included in Appendix I for which sufficient data are available to demonstrate that they do not meet the criteria listed in Annex 1 should be transferred to Appendix II only in accordance with the relevant precautionary measures listed in Annex 4; g) species included in Appendix II in accordance with Article II, paragraph 2(a), that do not meet the criteria listed in Annex 2a, should be deleted only in accordance with the relevant precautionary measures listed in Annex 4; and species included in accordance with Article II, paragraph 2(b), because they look like the species subject to the deletion, or for a related reason, should also be deleted only in accordance with the relevant precautionary measures…” Annex 4 entitled, ‘Precautionary Measures,’ provides that, “When considering proposals to amend Appendix I or II, the Parties shall, by virtue of the precautionary approach and in case of uncertainty either as regards the status of a species or the impact of trade on the conservation of a species, act in the best interest of the conservation of the species concerned and adopt measures that are proportionate to the anticipated risks to the species” (emphasis added). See also: Annexes 5 and 6. See “Conf. 9.24 (Rev. CoP14) Criteria for Amendment of Appendices I and II” at: ; . “Annex 4 of Resolution Conf. 9.24 (Rev. CoP13) lists the use of export quotas as one of the precautionary safeguards for a transfer of an Appendix I species to Appendix II.” See “EXPORT QUOTAS AND NON-DETRIMENT FINDINGS - Interpretation and implementation of the Convention”, CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA Fourteenth Meeting of the Conference of the Parties (June 3-15, 2007) at: pars. 14-17, at: .
[20] “Convention on Biological Diversity”, done at Rio de Janeiro June 5, 1992 and signed by the United States at New York on June 4, 1993 (Treaty Doc.: 103-20); submitted to Senate November 20, 1993. “The legal system relating to oceans and seas based on UNCLOS needs to be developed to face new challenges. The UNCLOS regime for EEZ and international straits makes it harder for coastal states to exercise jurisdiction over transiting ships, despite the fact that any pollution incident in these zones presents an imminent risk for them. This makes it difficult to comply with the general obligations (themselves set up by UNCLOS) of coastal states, to protect their marine environment against pollution. Protecting the marine environment and biodiversity in waters beyond national jurisdiction has become an important priority for the international community. In this context, the relationship between UNCLOS and the Convention on Biological Diversity needs clarification. The EC and its Member States should participate actively in developing the UN global marine assessment.” See “GREEN PAPER: Towards a future Maritime Policy for the Union: A European Vision for the Oceans and Seas” COM(2006) 275 final Volume II – ANNEX (6/7/06) pp. 42-43 at: .
[23] “70 % of the surface of the earth is covered by oceans and seas. By the year 2025 more than 75% of the total world population is expected to be living on the coast, highly dependent on the sea and its resources. As the people responsible for the future of this planet, we have an obligation to ensure the viability of the ocean’s environment, which is deteriorating at an alarming rate due to the over-utilization of marine resources, pollution and climate change. This will be a particular challenge for the 21st century. Proper oceans governance does require action that is forward-looking, and is based of the precautionary principle, rather than being merely reactive to the problems of today. As technology and science progress we face new challenges on how best to protect the oceans against destructive practices. The European Union attaches great importance to ensuring the protection of the marine bio-diversity of the oceans, both in areas under the responsibility of coastal states as well as beyond the limits of national jurisdiction. In our region, this important work is already undertaken within regional sea conventions and programs such as Helcom for the Baltic Sea, the Barcelona convention for the Mediterranean sea, OSPAR for the North-East Atlantic, and the Black Sea convention. With respect to the maritime areas under the responsibility of the member States of the European Union, the European Commission is in the process of developing a strategy for the protection of the marine environment. This strategy will be finalized in 2005. Also we would like to highlight that pollution accidents at sea which have caused serious damage within the European Union, have accelerated the need for measures to protect sensitive coastal areas within the European Union. While the Law of the Sea Convention sets out a global regulatory framework for areas under national jurisdiction and the high seas, the situation is less clear with respect to the protection of the bio-diversity of the high seas and the Area. The EU recognizes the need to regulate practices, including bottom trawling, which may be a threat to deep-sea marine biodiversity and to vulnerable marine ecosystems. It is our conviction that the legal framework and the implementation of measures to protect bio-diversity beyond the limits of national jurisdiction need to be improved and addressed urgently by the international community. At this time, not enough is yet known about the marine environment in these areas and in particular the ecosystems of the deep sea. This strengthens the need to apply the precautionary principle in all activities carried out in deep sea areas. Thus we should strengthen our resolve to only act with the greatest care in such areas by giving full effect to the provisions of UNCLOS and other international conventions such as the Convention on Biological Diversity” (emphasis added). See STATEMENT ON BEHALF OF THE EUROPEAN UNION BY MR. ARJAN P. HAMBURGER, DEPUTY PERMANENT REPRESENTATIVE, PLENARY - 59TH [UNITED NATIONS] GENERAL ASSEMBLY, EU Presidency Statement - Oceans and the Law of the Sea (Nov. 16, 2004) at: .
[24] “Stockholm Convention on Persistent Organic Pollutants”, done at Stockholm May 22, 2001 and signed by the United States on May 23, 2001 (Treaty Doc.: 107-5); submitted to Senate May 7, 2002.
[25] “Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade”, done at Rotterdam September 10, 1998 and signed by the United States on September 11, 1998 (Treaty Doc.: 106-21); submitted to Senate February 9, 2000.[26] See “Testimony of JOHN F. TURNER, Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, U.S. DEPARTMENT OF STATE, “Implementation of Environmental Treaties”, Before a Joint Hearing of the COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS AND THE COMMITTEE ON FOREIGN RELATIONS, UNITED STATES SENATE (JULY 24, 2002) at: .
[27] After all, this was the official policy of the Clinton-Gore administrations. “United States oceans policy has always had as a basic objective the application of the rule of law to the uses and conservation of the oceans. The United States was a leader in the international community's effort to develop an over-all legal framework for the oceans in the Third United Nations Conference on the Law of the Sea, which began its substantive work in 1974... As a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution, the Convention promotes continuing improvement in the health of the world's oceans” (emphasis added). See “Fact Sheet: U.S. Oceans Policy and the Law of the Sea Convention”, Released by the Bureau of Oceans and International Environmental and Scientific Affairs (May 28, 1998), at: .
[28] “[I]t is so disturbing to see that after thousands of years of very little geological change, we are now beginning to witness profound degradation of the marine environment. Algal blooms, for instance, appear to be occurring more frequently and are showing up in the waters where they have never been observed before... Chances are, the presence of these blooms can be attributed to human activity. In fact, over 80% of marine degradation can be traced to human activities on land. When we speak of human activities, or land-based activities, we are talking about source and non-point source pollution. We are talking about toxic pollutants, metals and radionuclides, sedimentation, and two of the most pressing issues of this conference-- which I understand you will be discussing today--sewage and persistent organic pollutants, or POPS. Untreated and improperly managed sewage is perhaps one of the most widespread problems affecting human health and our environment” (emphasis added). See “Marine Degradation From Land-Based Activities: A Global Concern”, Remarks by Vice President Gore at the Ministerial Level Plenary Session of the UN Environmental Program Inter-governmental Conference on the Protection of the Marine Environment From Land-Based Activities, Washington, DC, November 1, 1995, at: .
[29] “The Law of the Sea (UNCLOS and its related instruments) provides the basic legal framework for the allocation of maritime space to States, their rights and obligations regarding such space in its different compartments, and the system for international cooperation towards ocean management and conservation. However, the elements considered in the following sections are those in which legal aspects are, by themselves, the subject of discussion, in terms of: How can the EC contribute to the reinforcement, effectiveness and completion of the LOS framework (“maintenance” and improvement of the rules); How the EC institutions and processes need to respond to the constraints derived from the Law of the Sea provisions to ensure, ultimately, effective implementation and enforcement of LOS provisions (governance); How should the EC respond to developments in the area of maritime space delimitation, as the allocation of maritime “territory” is a particularly sensitive issue with great bearing on national policies and bilateral/multilateral co-operation. In sum, these three items relate to the EC’s contribution to updating and improving the LOS framework so that it ensures an enabling environment for the development of sound, sustainable policies” (emphasis added). See “BACKGROUND PAPER No. 3 on Exclusive Economic Zones, Underwater Resources (including Fisheries Resources, Continental Shelves, Law of the Sea)”, Accompanying THE GREEN PAPER TOWARDS A FUTURE MARITIME POLICY FOR THE UNION: A EUROPEAN VISION FOR THE OCEANS AND SEAS SEC(2006) 689 at p. 2, at: .
[30] See David L. Carr, “Considerations for the Development of a DoD Environmental Policy for Operations Other Than War”, U.S. Army Environmental Policy Institute White Paper (May 1997) at: . “The strategic principles of OOTW [military operations other than war] require U.S. forces to achieve ‘full spectrum dominance’ across a wide range of military operations, ranging from peace missions to operations short of war. Political imperatives are closely intertwined with this new military strategy, and the ultimate success of these missions may depend on a political outcome as much as a military victory. In the past decade, concerns about the degradation of the world’s environment and dwindling natural resources have become a politically sensitive issue, especially during operations other than war” (emphasis added) Id., at p.1. “Without question, the successful completion of the military mission and the protection of U.S. forces is the first priority of the CINC or Joint Task Force Commander during contingency operations. However, the political reality remains that any inappropriate action by U.S. Forces during OOTW which results in the degradation of the host nation’s ecosystem or causes adverse effects to the health and safety of the civilian population is contrary to our national interest and may result in the failure to achieve the desired political victory. U.S. military forces must therefore balance the application of appropriate standards of environmental protection with mission accomplishment and force protection during OOTW...The legitimacy of any U.S. military mission is directly related to compliance with national and international laws, treaties, and agreements. The politically sensitive nature of OOTW makes it imperative for U.S. forces to abide by both U.S. and host nation environmental laws to the extent that the tactical situation permits.” (emphasis added). Id., at p. 11. “Environmental security issues have become an integral part of a changing National Military Strategy. New military doctrine must be written to reflect the critical role that environmental protection plays throughout the full spectrum of operations other than war” (emphasis added). Id., at p. 39.
[31] “The Law of the Sea (LOS) Convention is a fundamental framework for the array of international agreements that protect ocean access, maintain the environmental quality of the oceans, and guard against imprudent exploitation of marine resources... Recognizing that national and global security are enhanced by protection of ocean resources, the Navy, Coast Guard and National Marine Fisheries Service (NMFS) have mounted a combined effort to detect, monitor, and suppress illegal large-scale high-seas driftnet activity... In an effort to assist in the recovery of the endangered Northern Right Whales in the critical habitat located off the coasts of Georgia and Florida, the Navy has undertaken extensive operational measures to preclude whale injury resulting from operations along the Eastern Seaboard. The Coast Guard and the Navy are also providing direct monitoring assistance to the NMFS and conservation organizations to study the migratory and other behavioral patterns of the Northern Right Whales to protect that species... On the international scale, the serious decline of fisheries in the Grand Bank of Newfoundland, the George’s Banks off New England, and other areas have either spawned incidents of violence involving armed forces or created other clear implications for global security. Legal regimes are being negotiated to deal with “ownerless” resources and marine pollution that cannot be specifically linked to particular vessels or nations, especially land-based sources... The Assistant Secretary of the Navy [Robert B. Pirie Jr., Statement before the Subcommittee on Readiness of the Senate Armed Services Committee on the Fiscal Year 98 Department of the Navy Environmental Budget (April 15, 1997] noted the importance of the environment to the Navy mission stating: ‘By maintaining compliance with all environmental standards, we ensure our access to training and operating ranges on land, in the air, and at sea. We recognize that many of our actions, whether it is to train new Sailors or Marines, maintain readiness of combat forces, or test new weapon systems have an impact on the natural environment. We need to understand those impacts, and take appropriate actions to minimize them. Beyond the strict interpretation of the law, we have an ethical responsibility to conserve the natural resources entrusted to us... This principle has been reinforced by the Chief of Naval Operations who stated that ‘national defense and environmental protection are and must continue to be compatible goals. Therefore, an important part of the Navy’s mission is to prevent pollution, protect the environment, and protect natural, historic, and cultural resources.’ Consistent with that policy, protection of the marine environment is mission essential. Navy ships conduct operations, in port and at sea, in such a manner as to minimize or eliminate any adverse impact on the marine environment. The sea services work hard to be good stewards of the oceans. The Navy views protection of the environment as a very practical challenge for operations and logistics. Recognizing the importance of assessing environmental factors and impacts during operations at sea, the Navy, in conjunction with the Joint Staff, is developing a Naval Warfare Publication (NWP 4-11). This document will serve as a ready reference for operational planners, afloat staffs, and vessel commanders seeking to integrate complex environmental requirements into day-to-day operations... Public and congressional support is key to the ability of naval forces to maintain the required readiness to achieve national security objectives and execute the National Military Strategy. Therefore, the Navy has involved the public, environmental groups, and legislative representatives in Navy marine environmental protection programs. A forward looking environmental policy ensures that the sea services operating overseas can continue to enjoy port access because of their good reputation abroad for pollution control and waste disposal” (emphasis added). See “1998 Year of the Ocean – The Oceans and National Security”, The Ocean Principals Group, pp. B-16 – B-18, at: . “The Ocean Principals Group consist[ed] of senior representatives from all civilian and military agencies with ocean-related activities... The Ocean Principals Group has identified seven themes-- Maritime Transportation, National Security, Ocean Resources, Marine Environmental Quality, Recreation and Tourism, and Weather, Climate and Natural Hazards-- and four cross-cutting issues-- science, technology, and research; Legal Framework, Management of Ocean Areas, Uses and Resource; and Education and Exploration.” See “1998 Year of the Ocean - Federal Agency Links” at: .
[32] “The oceans connect the nations of the world, even those countries that are landlocked. Because the maritime domain—the world’s oceans, seas, bays, estuaries, islands, coastal areas, littorals, and the airspace above them—supports 90% of the world’s trade, it carries the lifeblood of a global system that links every country on earth. Covering three-quarters of the planet, the oceans make neighbors of people around the world. They enable us to help friends in need and to confront and defeat aggression far from our shores. Today, the United States and its partners find themselves competing for global influence in an era in which they are unlikely to be fully at war or fully at peace. Our challenge is to apply seapower in a manner that protects U.S. vital interests even as it promotes greater collective security, stability, and trust. While defending our homeland and defeating adversaries in war remain the indisputable ends of seapower, it must be applied more broadly if it is to serve the national interest. We believe that preventing wars is as important as winning wars. There is a tension, however, between the requirements for continued peacetime engagement and maintaining proficiency in the critical skills necessary to fighting and winning in combat. Maritime forces must contribute to winning wars decisively while enhancing our ability to prevent war, win the long struggle against terrorist networks, positively influence events, and ease the impact of disasters... Today, the United States and its partners find themselves competing for global influence in an era in which they are unlikely to be fully at war or fully at peace. Our challenge is to apply seapower in a manner that protects U.S. vital interests even as it promotes greater collective security, stability, and trust. While defending our homeland and defeating adversaries in war remain the indisputable ends of seapower, it must be applied more broadly if it is to serve the national interest” (emphasis in original). See “Introduction - A Cooperative Strategy for 21st Century Seapower at pp. 1-2, at: . [33] See “Brussels Rules OK - How the European Union is Becoming the World's Chief Regulator”, The Economist (Sept. 20, 2007) at: .
[34] See “Jacqueline Peel, The Precautionary Principle in Practice - Environmental Decision-making and Scientific Uncertainty, Federation Press (Oct. 2005) at: ; See especially Appendix B, “Treaties Including the Precautionary Principle”, supra at:,%20The%20Precautionary%20Principle,%20Appendix%20B.pdf . See also “BACKGROUND PAPER No. 9 on Multilateral and EC Instruments related with the Seas and the Oceans”, Accompanying THE GREEN PAPER TOWARDS A FUTURE MARITIME POLICY FOR THE UNION: A EUROPEAN VISION FOR THE OCEANS AND SEAS SEC(2006) 689 at: .
[35] Prior 1998 Clinton administration documents suggest that some officials, including former Vice President Gore, then sought for the U.S. to embrace a strong Precautionary Approach as a matter of U.S. and international environmental law that is largely identical to Europe’s Precautionary Principle today. “As the United Nations and its member nations, including the United States, prepare to observe the Year of the Ocean, there is both increased awareness of human impacts on living marine resources as well as good news about how these impacts are being addressed. The good news is the growing worldwide acceptance of the precautionary approach to marine resource management. A concept unheard of a decade ago, the precautionary approach states that in the face of uncertainty, managers and decision makers must err on the side of conservation of living marine resources and protection of the environment. This is the opposite of earlier resource management approaches, where the proponent of resource use prevailed until something went wrong. Representing a radical shift of the burden of proof from those who would conserve resources to those who would use them, the precautionary approach is now being integrated into U.S. policy and practice, as well as into many international agreements. And this is occurring none too soon, since many ocean resources continue to decline in the face of increasing demands upon them... The federal government, as steward of U.S. living marine resources in partnership with the American people, has the opportunity to observe the Year of the Ocean in both a reflective and forward-looking manner. The Year of the Ocean provides a vehicle to accomplish several goals including; increase public awareness of what is known about the marine environment[;] solidify and strengthen federal partnerships and cooperation with stakeholders[;] use acquired knowledge to act on behalf of the resources[;] use enhanced communication to engage others to act[;] expand the knowledge base and the application of the precautionary approach... THE U.S. STRATEGY FOR ACHIEVING SUSTAINABLE LIVING MARINE RESOURCES... The past decade has seen two fundamental changes in the processes for making decisions about living marine resources: first, adoption of the precautionary, risk averse approach, and second, the new inclusiveness and openness of resource management decision making. In addition to these underlying process changes, the information base has been increased, new technologies have been applied, and a new way of looking at marine wildlife has been adopted—as ecosystems as opposed to single species. Using these approaches, the U.S. government, in partnership with public and private stakeholders, is taking action to address the threats to living marine resources and to ensure the productivity and promise of these resources for future generations... In all cases, the themes of improved science, the precautionary approach, expanded partnerships, and application of ecosystem principles will be applied to better management of the nation’s living marine resources... In every aspect of the strategic vision of U.S. marine resource management agencies, the acquisition of sound biological, economic, and social information is highlighted as the first step to focused policy decision making. Such information is crucial to pursuit of a precautionary approach to management that focuses decisions rather than allowing scientific uncertainty to fuel controversy and confusion” (emphasis added). See “1998 Year of the Ocean - ENSURING THE SUSTAINABILITY OF OCEAN LIVING RESOURCES” The Ocean Principals Group, pp. C-7 and C-23 – C-24, at: .
[36] See, e.g., Tobias Buck, “Standard Bearer”, Financial Times (July 10, 2007) at: (“Officials in Brussels say the EU will in future be in even better shape to dominate global standard-setting. Though it tends to act in unison, the EU after all wields not one but up to 27 votes in bodies such as the IMO. This enabled the Union to persuade the maritime grouping to ban single-hull tanker ships from international waters earlier than many non-European countries wanted”) (emphasis added). Id.

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