Myths and Realities Concerning UN Law of the Sea Treaty: LOST Does Incorporate Europe's contra-WTO Precautionary Principle! (c)

By Lawrence A. Kogan, Esq.

October 6, 2007

Myth #1: The Regulatory Functions of the International Seabed Authority[1] Are Limited to Mining Activities

In his March 23, 2004 testimony before the Environment and Public Works Committee of the U.S. Senate, University of Miami School of Law Professor, Bernard Oxman stated that “...a great deal of the negotiation of the Law of the Sea Convention revolved around accommodating the interests and views of the United States regarding...the limitation of the regulatory functions of the Seabed Authority to mining activities... [2] (emphasis added).

In addition, in his September 27, 2007 testimony before the U.S. Senate Foreign Relations Committee, Deputy U.S. Secretary of State John Negroponte stated that, “[T]he ISA only addresses deep seabed mining. Thus, its role is limited to mining activities in areas of the ocean floor beyond national jurisdiction. It has no other role and no general authority over the uses of the oceans”.[3]

Reality#1: The International Seabed Authority Possesses Vast Powers to Regulate the Marine Environment in Addition to Mining Activities

What Professor Oxman and Mr. Negroponte neglected to mention in their testimonies, however, was how LOST Article 145 specifically states that it is job of the International Seabed Authority (ISBA) to develop rules, regulations and procedures to protect the marine environment in and around the Area,[4] something many experts and non-experts know nothing about. Mr. Oxman also failed to discuss how the ISBA is vested with even broader authority that permits it to regulate the marine environment along the coastlines of sovereign states, including the U.S., in order to fulfill its duty to prevent environmental harm to the Area!

“...[T]he Authority shall adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment...(b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment” (emphasis added). [5]

This, of course, has something to do with the way the ISBA Secretariat is organized.

“The Secretariat is organized into four main functional areas: Office of the Secretary-General; Office of Administration and Management; Office of Legal Affairs; and Office of Resources and Environmental Monitoring” (emphasis added). [6]

But, more importantly, Professor Oxman chose not to discuss during his recent testimony how the ISBA’s mandate to regulate the marine environment in and around the Area fundamentally flows from the ‘common heritage of mankind’ (CHM) doctrine.

CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. Since 1994 (when former President Clinton submitted to the US Senate amendments to LOST Part XI dealing with the ISBA, that allegedly addressed former President Reagan’s serious objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

As the Council of the ISBA and the Secretary-General have aptly noted, the ISBA serves “the important[t] [role] of preserving the resources of the deep seabed as the common heritage of mankind”[7], even via the assessment of fees on companies seeking to prospect in the Area. “As trustees of the common heritage of mankind... under the Convention, the Authority [has been] allowed to raise or vary fees...the Authority’s concern was [always] to ensure that fees established, while being fair to contractors, brought reasonable benefit to mankind.”[8]

This would explain, at least partially, why the ISBA is authorized and likely to create ‘marine protected areas’ within which certain activities are to be precluded from taking place. Alternatively, consistent with the CHM doctrine, it is also quite possible that a marine protected area designation might enable the ISBA to extract socialist-style ‘rents’ from would-be prospectors.

Whatever the reason, it should be kept in mind that the expansive scope of the ISBA’s organizational mandate is also very well recognized by the environmental community. According to the World Conservation Union,

“The International Seabed Authority (ISA) has adopted a mining code relating to the exploration for polymetallic nodules and is currently developing rules to regulate mining for polymetallic sulphides and cobalt crusts that occur mainly at hydrothermal vents and seamounts. However, the ISA’s mandate regarding the resources of the deep seabed extends well beyond mineral exploitation, and the Authority is being encouraged to more fully exercise its powers and responsibilities with regard to living resources of the seabed and to ensure that marine ecosystems are properly protected and considered in all ISA licensing decisions and activities” (emphasis added).[9]

And the task of helping the ISBA to implement this obligation falls upon the ISBA’s Legal and Technical Commission (LTC).[10] [11]

The ISBA’s role as regulatory steward of the marine environment in and around the ‘Area’ has also been confirmed by the Authority’s Secretary-General.

“Whilst the Authority’s role is primarily concerned with prospecting, exploration and exploitation of mineral resources, it also has a broader role concerning the protection and preservation of the marine environment (including its biodiversity) and the promotion of marine scientific research in the international seabed area as stated in articles 143 and 145 of the 1982 Convention on the Law of the Sea. In order to protect and preserve the environment, the Authority has created a series of regulations and guidelines for contractors (i.e. those who are licensed by the Authority to undertake prospecting and exploration of the deep seabed and its resources). The regulations on prospecting and exploration for polymetallic nodules were adopted in 2000... Amongst other requirements, the regulations ensure that a contractor shall ‘take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area’. [12]

Indeed, the ISBA and the LTC have been rather active since 1997.[13] They have already completed final environmental regulations and guidelines governing the activities relating to polymetallic nodules [14] and only recently submitted to the ISBA Assembly for consideration draft regulations and guidelines to encompass polymetallic ferromanganese sulphides and cobalt-rich crusts.[15]

yth #2: The US Can Block All ISBA Council Regulations It Doesn’t Like

In his September 27, 2007 testimony before the US Senate Foreign Relations Committee, Professor Oxman stated that, “In particular, the adoption of mining regulations requires consensus on the 36-member [International Seabed Authority] Council. Once the United States takes its guaranteed seat on the Council our blocking power will permit us to ensure that the Seabed Authority remains within its mandate and that the content of any regulations is satisfactory” (emphasis added).[16]

Reality #2:

According to Annex, Section 3 of the Agreement Relating to the Implementation of Part XI of the UN Law of the Sea Convention, it is only “a general rule [that] decision-making in the organs of the Authority [, including the Council,] should be by consensus”.[17]

“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Assembly on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance shall be taken by a two-thirds majority of members present and voting” [18]

“If all efforts to reach a decision by consensus have been exhausted, decisions by voting in the Council on questions of procedure shall be taken by a majority of members present and voting, and decisions on questions of substance, except where the Convention provides for decisions by consensus in the Council, shall be taken by a two-thirds majority of members present and voting, provided that such decisions are not opposed by a majority in any one of the chambers [19]referred to in paragraph 9.” [20]

“Decisions by voting in the Legal and Technical Commission shall be by a majority of members present and voting.” [21]

Given the conflicting interests of LOST parties, however, it will likely be difficult to achieve near unanimous consensus on many procedural and substantive issues. For this reason, the 1994 Agreement, in a manner similar to the 1982 UNCLOS, provides for different types of complex majority and supermajority voting formulations, depending on the matter and ISBA organ involved, as noted above. Consequently, it is NOT assured that the U.S. ‘blocking power’ can keep the ISBA within its treaty mandate.

Myth #3: The UN Law of the Sea Treaty Does Not Incorporate the Precautionary Principle

In a terse ad hominem response to a Commentary entitled, “LOST and found” appearing within the August 8, 2007 issue of the Washington Times,[22] Washington DC Attorney Robert J. McManus made the following statement: “Mr. Kogan opposes U.S. accession to this treaty, but he omits any and all description of its substance, preferring to deal in false generalities about ‘the precautionary principle’. (of all things) and out-of-context statements...I simply challenge Mr. Kogan to provide a single scrap of textual support in the treaty for his statement[].”[23]

Reality#3: The Precautionary Principle Is Incorporated Expressly, By Reference and In Spirit in the UN Law of the Sea Treaty

A. There is Overwhelming Proof That the ISBA Regulations are Based on the
Precautionary Principle

At least one specialist from the ISBA’s Office of Legal Affairs, in addition to the ISA Secretary-General himself, has detailed how the obligation of the ISBA to protect the marine environment goes beyond mere prevention. According to this specialist, fulfillment of the duty of care imposed by the LOST upon the ISBA, any contractors operating in the ‘Area’, and perhaps even coastal state governments, requires not only the taking of preventive steps against known or knowable harms to the marine environment, but also the exercise of precaution in advance to ensure that activities in or around the Area or those otherwise directly or indirectly affecting the Area do not pose any unknown and/or uncertain potential future hazards to the marine environment. In other words, the ISBA is obliged, as a matter of international environmental law, to employ precaution.[24]

“Firstly, the Authority is under a duty to establish and keep under review environmental rules, regulations, and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. Secondly, the Authority and sponsoring States are required to apply a precautionary approach as reflected in Principle 15 of the Rio Declaration, to activities in the Area. The Legal and Technical Commission is to make recommendations to the Council on the implementation of this requirement. Thirdly, the regulations impose a duty on each contractor to take necessary measures to prevent reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [25]

ince the LOST obliges the ISA to employ precaution, it is therefore not surprising, as the Secretary-General notes, that both the recently crafted final and draft ISBA environmental regulations “are [also] based on a precautionary approach as contained in Principle 15 of the Rio Declaration” (emphasis added).[26] If this were the extent of the environmental obligation imposed by the LOST, it would be difficult to argue against it. The precautionary approach as defined in the Rio Declaration contains an economic cost-benefit analysis (balancing) requirement within it – i.e., that whatever measures are finally settled upon to prevent the harm from occurring in the first place must be “cost-effective” and proportionate to the harm being prevented.

However, the clearly expressed meaning of terms contained within laws, regulations and treaties can be deceiving to the naked eye, especially if the interpreters of the words are European governments which believe in the power of ‘nuance’.[27] The story here begins with the drafting of the first of two ISBA regulations. During the fifth delegation of the ISBA in August 1999, several delegations proposed to include within ISBA Regulation 1 (‘Definitions’) a definition of the Precautionary Principle. It was to be based on the language contained within Principle 15 of the Rio Declaration, as noted previously. Subsequently, informal consultations were held with the Government of the Netherlands which had become dissatisfied with the then current language of draft Regulation 32 (‘Emergency Orders’).[28] Those consultations ultimately gave rise to a submission by the Netherlands of a proposal to amend draft Regulation 32 to provide for the application of the Precautionary Principle in managing the activities of the Area.[29] The main clause of the proposal read as follows:

“In the conduct of activities in the Area, the precautionary principle shall be applied to protect and preserve the marine environment, by virtue of which cost-effective preventive measures are to be taken when there are reasonable grounds for concern that these activities may cause serious harm to the marine environment, even where there is lack of full scientific certainty” (emphasis added).[30]

The ISBA Council thereafter reviewed the August 1999 proposal during its sixth session meeting in March 2000. At that time it became apparent that the European and developing country LOST parties and non-Party observers then present (including presumably members of US industry and the US Government), had strongly disagreed not only about the need to incorporate the concept of precaution at all within the scope of the LOST, but also about which version of precaution would prevail. First, opponents were concerned that if any form of precaution were embedded within the ISBA regulations, and such regulations served a vital role in implementing each Party’s LOST obligations, then the LOST itself would be deemed to incorporate precaution. Second, opponents were concerned that even if ISBA regulations expressly required State Parties to adopt a ‘precautionary approach’, such language, as applied, would not necessarily be limited to the Rio Declaration meaning, with its express economic cost-benefit limitation. In other words, the record indicates that a conscious effort had been made by certain European LOST parties, to go beyond the proposed Rio Declaration language and interpret the meaning of precaution as reflecting, implicitly (i.e., ‘in spirit’) the much broader European Precautionary Principle, which does NOT require economic cost-benefit balancing.

As the academic and professional literature reveals and the record reproduced below corroborates, the distinction between these two concepts is far from insignificant.[31] The following is an excerpt of the ISBA Council’s summary of this debate:

Most of today's debate cent[ered] on a proposal by the Netherlands, concerning precautionary measures to be taken to prevent environmental degradation. The proposal (ISBA/5/C/L.8), resulting from informal consultations last August, is based on principle 15 of the Rio Declaration on Environment and Development, adopted in Rio de Janeiro in 1992 by the United Nations Conference on Environment and Development...Divergent positions were expressed today on whether to incorporate the Netherlands text. One speaker put forward the view that the 1982 United Nations Convention on the Law of the Sea, in article 145, amply covered all issues concerning protection of the environment, so that there was no need to invoke the precautionary principle in the draft code. She felt that contractors, who had to make large capital outlays, would be deterred from investment if there was a divergence of approach between the regulations and the underlying Convention and the 1994 Agreement relating to the implementation of Part XI (seabed provisions) of the Convention. That speaker cited scientific research indicating that prospecting and exploration on the seabed, including such activities as basket sampling, had no harmful effects on the marine environment. Some delegations supported that view and maintained that the precautionary principle was vague and could be interpreted in many ways, and thus was not suitable in a legal document. It was unnecessary, they thought, to import this ‘new concept’ into the regulations when neither the Convention nor the 1994 Agreement made reference to it. They felt that ‘reasonable grounds for concern’ could be very broadly interpreted and could place stumbling blocks in the way of investors. However, most speakers this afternoon supported the Netherlands proposal. One remarked that the precautionary principle was not a new concept and had been a full- fledged principle of international law for a number of years.

Another called for a reference to be made in the regulation to principle 15 of the Rio Declaration. It was also argued that, since exploration activities were deemed to have little impact on the environment, contractors should have no reservations about applying the principle. One member observed that several countries involved in deep-seabed exploration were already taking measures to protect the environment. Thus, the problem might be one of wording rather than substance, and could be resolved by the Legal and Technical Commission. Another speaker suggested that suitable wording might be found in part XII of the Convention, which deals with protection and preservation of the marine environment. He referred specifically to articles 204 (monitoring of the risks or effects of pollution), 205 (publication of reports) and 206 (assessment of potential effects of activities). Another suggestion was to consider the term ‘necessary measures’. In response to the assertion by some members that the precautionary principle was not in keeping with the Convention and the Agreement, one speaker remarked that knowledge about the environment and how to protect it had advanced significantly since the signing of the Convention nearly two decades ago. Moreover, the Agreement, which had come into effect only in 1994, did not reflect any lessening of concern about protection of the marine environment. Others observed that, while the Convention might not contain the exact words "precautionary principle", they were implied in its spirit... Turning to the Netherlands proposal...Secretary-General Satya N. Nandan...suggested that the Council consider the term ‘precautionary approach’ as a way of reaching a compromise while sticking as closely as possible to the Convention and avoiding inconsistencies. He recommended ‘marrying’ the substance of articles 204, 205 and 206 of the Convention with the “precautionary approach”, and suggested that delegates hold small group meetings to iron out differences” (emphasis added). [32]

The final text of ISBA Regulation 31 (as opposed to Regulation 32) ultimately adopted, which covers polymetallic nodules, reads as follows:

“Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration, to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). [33]

Furthermore, consistent with LOST Article 162(2)(w), ISBA Regulation 32 of that document vests the ISBA with the powers of a supranational quasi-sovereign, by permitting the ISBA Council to employ ‘emergency’/ precautionary/ provisional/ measures on a temporary basis for the purpose of halting activities in the Area” before “serious harm” to the marine environment results.[34]

Similar, if not identical ‘precautionary approach’ and ‘emergency orders’ language can also be found in Articles 33(2)[35] and 35(2)[36] respectively of two more recent Draft ISBA Regulations concerning cobalt-rich ferromanganese crusts and polymetallic sulphides. There is, however, one notable exception. In the case of Article 35(2) of each of these Draft ISBA Regulations, a new basis for taking precautionary action - “to prevent, contain and minimize the threat of serious or irreversible [non-serious?] damage to the marine environment”- was added.[37]

What is most problematic about both of these ISBA regulation documents is that the compromised language used (‘precautionary approach’) does not resolve the fundamental underlying philosophical / legal debate that continues to rage between the EU and the US, concerning how best to regulate potential risks versus hazards to human health or the environment. In fact, it is arguable that the European member states that are parties to the LOST have it definitely in mind to interpret and apply the concept ‘precautionary approach’ as expressed in these ISBA regulations, purely on their own terms – i.e., as if it were the Precautionary Principle - domestically, regionally and internationally, even if it is in total disregard of the express language contained within a number UN and WTO treaties. In fact, they believe they have legal license to do just that:

“Although the Regulations do not go as far as some delegations would have liked, it is suggested that what is contained in Part V of the Regulations is in fact a very significant advance upon Article 145 of the Convention and provides a firm basis for the elaboration of a comprehensive code of environmental regulation” (emphasis added). [38]

This thinking is clearly evidenced in a more recent report prepared by ISBA’s Secretary-General. It provides an account of the Authority’s work “over the past 12 months...a review of the 2005-2007 programme of work and a presentation of the proposed programme of work for 2008-2010.” [39] In particular, one section discussing how the ISBA should go about managing nodule mining and the design of ‘marine protected areas’[40] expressly refers to the Precautionary Principle.

Any recommendations made to the International Seabed Authority at this point must be considered preliminary and used with the precautionary principle (i.e., our understanding of biodiversity levels, species ranges and gene flow in the Clarion-Clipperton zone is still so limited that we must err on the side of overprotection of the environment). It is clear that novel taxa, and evolutionary novelty, occur in the abyss so we cannot assume that protection of only the ocean margins will preserve abyssal biodiversity” (emphasis added). [41]

According to the World Conservation Union, the environmental community’s goal is to utilize the LOST to employ the ‘modern’ Precautionary Principle globally to preserve the earth’s biodiversity for future generations consistent with the United Nations doctrine of sustainable development.[42] And, this requires the development and promotion of

“a global framework or approach, building on the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), the UN Fish Stocks Agreement, CMS and other relevant agreements, to facilitate the creation of a global representative system of high seas MPA networks consistent with international law, to ensure its effective management and enforcement, and coordinate and harmonize applicable international agreements, mechanisms and authorities in accordance with modern principles of precautionary, ecosystem-based and integrated management and sound governance as defined in the UN principles; including through: Requesting those countries which have yet to sign or ratify UNCLOS, and other relevant international agreements (e.g. Kyoto Protocol,[43] Convention on Biological Diversity,[44] UN Fish Stocks Agreement)[45] to immediately ratify and implement these agreements” (emphasis added). [46]

As noted above, once the US ratifies the LOST, it, like all other LOST parties, would be required to employ Europe’s Precautionary Principle[47] to protect the marine environment and “all currents and frontal systems known to support marine life and contain critical habitat” located within US sovereign territory.[48] Environmentalists and their academic colleagues have long sought to employ, tighten and enforce their web of global environmental regulations against industry in order to protect the world’s ‘endangered’ animal species. This includes ALL migratory birds and fish listed within the Convention on International Trade in Endangered Species (CITES),[49] the Convention on Migratory Species (CMS) and related Agreements, which themselves incorporate the Precautionary Principle.[50]

One of the most interesting aspects of the LOST that has not yet been addressed by the Senate Foreign Relations Committee in this round of ‘public’ hearings concerns how each of these treaties could be invoked by another LOST Party, or even by the International Seabed Authority itself, [51] through LOST’s binding dispute settlement mechanism to compel the US government to reinterpret its own federal environmental laws consistent with Europe’s Precautionary Principle.


[1] “The International Seabed Authority is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea. The Authority is the organization through which States Parties to the Convention shall, in accordance with the regime for the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (the Area) established in Part XI and the Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The Authority, which has its headquarters in Kingston, Jamaica” (emphasis added). See International Seabed Authority website at: http://www.isa.org.jm/en/about .
[2] See Testimony of Bernard Oxman, Professor of Law, University of Miami School of Law, at the Senate Hearings Before the Committee on Environment and Public Works, United States Senate, 108th Congress, 2nd Sess., S.Hrg. 108-498 (March 23, 2004) at pp. 164-165.
[3] See WRITTEN TESTIMONY OF JOHN D. NEGROPONTE, DEPUTY SECRETARY U.S. DEPARTMENT OF STATE BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE ON SEPTEMBER 27th, 2007, 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 [Senate Treaty Document 103-39]
at p. 15, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[4] “The 1982 United Nations Convention on the Law of the Sea (“the Convention”) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Agreement”), require the International Seabed Authority to develop the rules, regulations and procedures relating to prospecting, exploration and exploitation in the Area... An important element of the draft Mining Code is the protection of the marine environment from activities relating to exploration” (emphasis added). See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, Report of the Secretary-General, International Seabed Authority Legal and Technical Commission, ISBA/5/LTC/1 (June 21, 1999), at: http://teaching.law.cornell.edu/faculty/drwcasebook/docs/RegIntlSeabedAuth.pdf .
[5] See LOST Article 145(a) and (b).
[6] See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/7/A/2 (May 18, 2001) at p. 3, at: http://www.isa.org.jm/files/documents/EN/7Sess/Ass/ISBA_7A_2.pdf .
[7] See “ISA Council Begins Substantive Work on Draft Regulations On Sulphides”, International Seabed Authority Press Release SB/13/5 (July 10, 2007) at: http://www.isa.org.jm/files/documents/EN/Press/Press2007/SB-13-5.pdf .
[8] Id., at p. 3.
[9] See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary (Sept. 2003) at Toolbox 1 at p. 13, at: http://www.iucn.org/THEMES/MARINE/pdf/10-Year_HSMPA_Strategy_SummaryVersion.pdf .
[10] “The Legal and Technical Commission (LTC) is an organ of the Council of the International Seabed Authority... The Commission is entrusted with various functions relating to activities in the deep seabed area including the review of applications for plans of work, supervision of exploration or mining activities, assessment of the environmental impact of such activities and provide advice to the International Seabed Authority’s Assembly and Council on all matters relating to exploration and exploitation of non-living marine resources (such as polymetallic [manganese] nodules, polymetallic sulphides and cobalt crusts). The Commission has since its inception developed the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and is in the process of finalizing the Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-Rich Ferromanganese Crusts in the Area.” See “International Seabed Authority, Legal Technical Commission” at: http://www.isa.org.jm/en/about/members/legal .
[11] “In considering the draft guidelines, the Legal and Technical Commission is acting in pursuance of article 165, paragraph 2(e), of the 1982 United Nations Convention on the Law of the Sea, which requires the Commission to make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in that field.” See “Recommendations from the Workshop to Develop Guidelines for the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area”, supra, at par II.2, at p.2.
[12] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004) at p. 1, citing Regulation 31(3). “Benthic refers to the bottom of an ocean, estuary or lake.” See “Benthic Flux”, Toxic Substances Hydrology Program US Geological Survey at: http://toxics.usgs.gov/definitions/benthic_flux.html . Benthos is defined as “The Collection of organisms on or in sea or lake bottoms” and as “The bottom of a sea or lake”. See Answer.com at: http://www.answers.com/topic/benthos.
[13] “The Legal and Technical Commission commenced work on the draft regulations for prospecting and exploration for polymetallic nodules in March 1997, and completed its work in March 1998, when the draft regulations proposed by the Commission were submitted to the Council.” See Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at p. 4, citing ISBA/4/C/4/Rev.1. See also Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, The Journal, Vol. 10, Abstract 2 (Dec. 18, 2001) at p. 12, at: http://www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-2.pdf .
[14] See “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18 (July 20, 2000).
[15] See “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority Legal and Technical Commission ISBA/13/LTC/WP.1 (May 9, 2007).
[16] STATEMENT OF PROFESSOR BERNARD H. OXMAN BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS October 4, 2007 at p. 7, at: http://www.senate.gov/~foreign/testimony/2007/OxmanTestimony071004.pdf
[17] See Annex, Section 3 “Decision Making - Agreement Relating to the Implementation of Part XI of the Convention”, United Nations Convention on the Law of the Sea, adopted on July 28, 1994 (Senate Treaty Doc. 103-39) at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm .
[18] Id., at Section 3.3.
[19] Id., at Section 3.9.
[20] Id., at Section 3.5
[21] Id., at Section. 3.13.
[22] See Lawrence Kogan, “LOST and found”, Washington Times Commentary (Aug. 8, 2007) at: http://washingtontimes.com/apps/pbcs.dll/article?AID=/20070808/COMMENTARY/108080001&template=printart .
[23] See Robert McManus, “LOST at Sea”, Washington Times Letter to the Editor (Aug. 9, 2007) at: http://www.washingtontimes.com/apps/pbcs.dll/article?AID=/20070810/EDITORIAL/108100010/-1/RSS_EDITORIAL&template=nextpage .
[24] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21.
[25] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 21, citing LOST Article 165(2)(e),(f) and (h); Annex III, Article 17(1)(b)(vii) and Article 17(2)(f), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf ; Section 1(5)(g) of the “1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea”, at: http://www.un.org/depts/los/convention_agreements/texts/unclos/closindxAgree.htm ; International Seabed Regulation 1(5) (providing for supplemental rules, regulations and procedures “in particular on the protection and preservation of the marine environment”).
[26] See “Benthic Biodiversity and the Work of the International Seabed Authority”, STATEMENT BY AMBASSADOR SATYA N. NANDAN, SECRETARY-GENERAL OF THE INTERNATIONAL SEABED AUTHORITY TO THE 5TH MEETING OF THE UNITED NATIONS INFORMAL CONSULTATIVE PROCESS ON THE LAW OF THE SEA (June 7-11, 2004), supra at p. 1. “Principle 15 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”, “REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, A/CONF.151/26 (Vol. I) (June 3-14, 1992) at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm .
[27] See Lawrence A. Kogan, “Europe’s Warnings 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 .
[28] The language of then draft Regulation 32 was as follows: “As currently drafted, regulation 32, composed of six paragraphs, obliges the Authority to ‘establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities’ in the international seabed area. Each seabed contractor would be required to ‘take precautionary measures to anticipate, prevent or minimize adverse impacts on the marine environment arising from its activities in the area as far as reasonably possible using the best available technology’” (emphasis added). See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release SEA/1660 (22 March 2000) at: http://www.un.org/news/Press/docs/2000/20000322.sea1660.doc.html .
[29] See International Organizations and the Law of the Sea – Documentary Yearbook 2000, Barbara Kwiatkowska and The Netherlands Institute for the Law of the Sea (Eds.) Vol. 16 (Martinus Nijhoff Publ. 2000©) at p. 404, at: http://books.google.com/books?id=lzBlfgyCmxEC&pg=PA404&lpg=PA404&dq=%22isba+5+c+l+8%22+netherlands&source=web&ots=Q_PVOQMeWa&sig=vbVFOrvAo_5fjVuQOAz-wlhpHUA .
[30] See “SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE”, International Seabed Authority Press Release, supra.
[31] See Lawrence A. Kogan, World Trade Organization Biotech Decision Clarifies Central Role of Science in Evaluating Health and Environmental Risks for Regulation Purposes, 2 Global Trade and Customs Journal 3 (March 2007), available at: http://www.itssd.org/Publications/GTCJ_04-offprints_Kogan%5b2%5d.pdf ; Lawrence A. Kogan, Backgrounder WTO Addresses Precautionary Principle (Washington, DC: Washington Legal Foundation, 8 December 2006), available at: http://www.itssd.org/Publications/wto-biotech-foods-dec0806.pdf ; Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, 5.1 Seton Hall J. Dipl., (Winter/Spring 2004), available at: http://diplomacy.shu.edu/journal/KOGAN%20-%20Precautionary%20Principle%20&%20WTO%20Law.pdf . See also Lawrence Kogan, Comments Submitted to the International Economic Law and Policy Blog (Dec. 6, 2006) at: http://worldtradelaw.typepad.com/ielpblog/2006/12/unappealing_bio.html (discussing the distinctions made between the concepts ‘precautionary approach’ and ‘precautionary principle’ within the WTO Panel Decision in European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291/R, WT/DS292/R and WT/DS293/R, final report issued 29 September 2006, available at http://www.wto.org/english/news_e/news06_e/291r_e.htm.
[32] Id.
[33] See ISBA Regulation 31, “Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area”, International Seabed Authority Assembly ISBA/6/A/18, supra.
[34] Id., at ISBA Regulation 33.
[35] “Protection and preservation of the marine environment 1. The Authority shall, in accordance with the Convention and the Agreement, establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area. 2. In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration,2 to such activities. The Legal and Technical Commission shall make recommendations to the Council on the implementation of this paragraph. 3. Pursuant to article 145 of the Convention and paragraph 2 of this regulation, each contractor shall take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible using the best technology available to it” (emphasis added). See ISBA Draft Article 33, “Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area”, International Seabed Authority, Legal and Technical Commission ISBA/13/LTC/WP.1, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, International Seabed Council ISBA/13/C/WP.1 (March 29, 2007).
[36] “Regulation 35 Emergency orders 1. When the Secretary-General has been notified by a contractor or otherwise becomes aware of an incident resulting from or caused by a contractor’s activities in the Area that poses a threat of serious harm to the marine environment, the Secretary-General shall cause a general notification of the incident to be issued, shall notify in writing the contractor and the sponsoring State or States, and shall report immediately to the Legal and Technical Commission and to the Council. A copy of the report shall be circulated to all members of the Authority, to competent international organizations and to concerned subregional, regional and global organizations and bodies. The Secretary-General shall monitor developments with respect to all such incidents and shall report on them as appropriate to the Commission and to the Council. 2. Pending any action by the Council, the Secretary-General shall take such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimize the threat of serious or irreversible damage to the marine environment. Such temporary measures shall remain in effect for no longer than 90 days, or until the Council decides what measures, if any, to take pursuant to paragraph 5 of this regulation, whichever is the earlier.” Id., at ISBA Draft Regulation 35, supra. See also Draft Article 33, “Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area”, supra.
[37] Id.
[38] See Michael W. Lodge, “The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area”, supra, at p. 22.
[39] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, ISBA/13/A/2 (May 29, 2007).
[40] A marine protected area (MPA) is “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”1. Such protection can range from areas managed mainly for science or wilderness values to areas managed mainly for the sustainable use of natural ecosystems and resources (as reflected in the six IUCN Protected Area Management Categories).” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, Executive Summary, supra at p.6.
[41] See “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea”, supra at par. 74, at p. 19.
[42] “Core components and key strategic steps - ENDORSE AND PROMOTE the World Summit on Sustainable Development
(WSSD) Joint Plan of Implementation together with the goal of establishing a global system of effectively managed, representative networks of marine protected areas by 2012 that includes within its scope the world’s oceans and seas beyond national jurisdiction...” See “IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks”, supra at p. 7.
[43] The U.S. is currently under pressure from the European Union to ratify the Kyoto Protocol.
[44] The United Nations Convention on Biological Diversity is currently before the U.S. Senate Foreign Relations Committee for ratification.
[45] The U.S. has already signed and ratified the UNFSA.
[46] Id., at p. 8
[47] Id.
[48] “1.3 Identification of Important Sites and Criteria for Establishing and Managing Marine and Coastal Protected Areas CBD Operational Objective 3.1 is designed to facilitate research and monitoring activities related to the value and the effects of marine and coastal protected areas on sustainable use of marine and coastal living resources... CBD Operational Objective 3.2 will develop criteria to establish and manage marine and coastal protected areas. The CBD Secretariat is collaborating with relevant organisations in implementing operational objectives 3.1 and 3.2... Protected areas are key tools with which to conserve and sustainably use migratory species whether in general, or those listed on CMS Appendices and are generally addressed in the section on protected areas (Section 11.0). The CMS COP at its fifth meeting decided that in conjunction with Range States, Parties should develop a network of critical sites as protected areas throughout the migration routes of Appendix I species (CMS COP, Res. 5.4). The Wadden Sea Seals Agreement also recognises the importance of creating a network of protected areas in the seals’ migration areas and the importance of an adequate number of reserves. ASCOBANS encourages its Parties to work with others to develop criteria to define marine protected areas for small cetaceans (ASCOBANS MOP1, Res. 2)” (italicized emphasis added). See “Convention on the Conservation of Migratory Species of Wild Animals – Cooperation With Other Bodies CBD/CMS Joint Work Programme (2002-2005)”, 7th Meeting of the Conference of the Parties UNEP/CMS/Inf.7.13, at p. 5, at: http://www.cbd.int/doc/agreements/agmt-cms-2002-09-18-jwp-web-en.pdf .
[49] See Lawrence A. Kogan, The Precautionary Principle and WTO Law: Divergent Views Towards the Role of Science in Assessing and Managing Risk, supra, at p. 94, and accompanying footnotes (It has...been argued by certain governments, primarily the EU and its member states, that the precautionary principle is enshrined within The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 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”) (emphasis added).
[50] “10.0 Impact Assessment and Minimising Adverse Impacts None of the CMS Instruments specifically refer to environmental impact assessment, although all CMS Instruments require their Parties to address the threats posed by certain activities, and three instruments (ACCOBAMS, Cranes and Great Bustard) mention the assessment of threatening activities. Notwithstanding this, potential individual and cumulative impacts on migratory species should be considered in environmental impact assessment procedures addressing impacts to biodiversity. CBD COP V invited Parties, governments and other relevant organisations to inter alia organise expert meetings, workshops and seminars, as well as training, educational and public awareness programmes and exchange programmes (CBD COP Decision V/18). It also requested SBSTTA to further develop guidelines to incorporate biodiversity-related issues into legislation or processes on strategic environmental impact assessment. The application of the precautionary principle and the ecosystem approach in impact assessment will be addressed. The guidelines are drafted for further consideration by COP 6.” Id., at p. 13.
[51] “The Authority shall possess legal personality. It shall have the legal capacity: (a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to be a party in legal proceedings” (emphasis added). See “Article 3 ‘Legal Personality of the Authority’, PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE INTERNATIONAL SEABED AUTHORITY at: http://untreaty.un.org/English/notpubl/seabed2_eng.htm .