Sunday, November 15, 2009

The EU Has Long Relied on the UNCLOS Tribunal & Global Governance Framework to Export and Enforce its Green Precaution-Based SD Policies-Obama Agrees?

[The following European Commission press releases once again corroborate, verify and confirm all ITSSD research related to how Europe and the Obama administration seek to use US UNCLOS accession as a springboard to change US federal, state and local environmental law consistent with socialist Europe's Precautionary Principle.

For a detailed explanation of this see: Americans' Constitutional Rights Will Be Trampled Unless Senator Kerry & Other Congressional Committee Chairs Hold Public Hearings to Vet the UNCLOS , ITSSD Journal on the UN Law of the Sea Convention (May 5, 2009) at: ].


Dr. Joe Borg

Member of the European CommissionResponsible for Fisheries and Maritime Affairs

Challenges of globalisation: working together to strengthen global governance of the oceans

National Europe Centre, Australian National University

Canberra, 13 May 2009

Distinguished Guests, Ladies and Gentlemen,

It gives me great pleasure to be here in this vibrant country with its outstanding maritime tradition. I am especially pleased to be speaking to you here at the National Europe Centre, which is making a sterling contribution towards building ever closer ties between Australia and Europe. One of the many facets of your valuable work involves bringing together universities and national institutions and pursuing academic excellence. This admirable approach is to be encouraged. It also shows the extent to which concerted and genuine co-operation can yield first-rate results in any number of areas. And co-operation is very much the theme of my address to you today.

The period of financial, economic and also political turmoil we are currently experiencing certainly requires co-operation, for no region of the world has been left untouched and we are all feeling the consequences. The positive aspect of the current downturn is that, faced with these global challenges, the international community is coming together as it has rarely done before, to forge common responses.

The importance of the efforts to promote global governance is becoming ever more obvious. Indeed, they are starting to bear fruit in a number of fields.

Today I would like to mention a few issues related to global governance of the oceans where I believe progress is undeniable and encouraging, both on an international scale, at regional level, and within the EU. We have two main instruments in the EU that help us govern our activities with the seas and oceans: the Common Fisheries Policy and the recently established Integrated Maritime Policy. Both policies relate to a number of international conventions, agreements and arrangements of which the EU is often party. Developments in the United Nations Convention on the Law of the Sea are therefore of direct interest to the EU.

A case in point is the international effort on tackling the problems caused by the use of destructive fishing practices. In a world where the search for natural resources, including fish, has become increasingly difficult, technological progress has enabled fishermen to use fishing gears to take them to previously uncharted depths. However, the negative consequences of these fishing practices have quickly become apparent, as, in many areas, vulnerable marine ecosystems have been destroyed by fishing gears raking across ocean floors. We know today that for those vulnerable marine ecosystems to recover - if they are to recover at all - long periods of complete rest and isolation will be needed.

At the UN General Assembly in 2006, the European Community and others decided to take action. The General Assembly laid down a set of rules and conditions to be applied to bottom fishing in a resolution known as UNGA 61/105.

As you may know, fishing on most parts of the high seas is governed by Regional Fisheries Management Organisations or RFMOs. Obviously, RFMOs have a very important role to play in implementing this UN resolution, as they agree on the detailed technical rules and fishing possibilities they undertake to respect in the area of the sea under their responsibility.

The European Union and others have been working hard to promote and ensure implementation of the UN rules on bottom fishing. In RFMOs we have tried to push for the adoption of strict measures, often supported by Australia and other countries. While rule-setting within RFMOs has had a relatively encouraging start, progress is still needed on the implementation side.

Until now, the European Union is the only party that has adopted a set of rules for its fishing vessels limiting the impact, and, in many cases, prohibiting bottom fishing practices in areas of the high seas for which there is no RFMO. We implement a precautionary approach and only allow Member States to permit bottom trawling once there is scientific evidence that such practices do not cause additional damage to vulnerable marine habitats. We hope that international partners will adopt similar measures.

We are looking forward to this year's stock-taking exercise on the implementation of resolution 61/105, at the UN. I hope that increasing transparency on the efforts undertaken will demonstrate that rule-setting at global level on a specific issue which can have a serious impact on marine ecosystems will be both possible and effective.

I mentioned that most of the high seas are covered by Regional Fisheries Management Organisations. We are working on filling up the gaps. Thus, the EU and Australia, along with interested parties are in the last stages of agreeing on a convention that would lead to the creation of such an organisation for the South Pacific. In the meantime, management measures have been put in place under an interim arrangement.

There are other examples in the field of fisheries where progress is being achieved both at global and regional level. One major challenge lies in tackling illegal, unreported and unregulated (IUU) fishing practices. With an estimated global turnover of 10 billion Euro a year, IUU or pirate fishing is big business. IUU fishing benefits fraudsters but brings nothing to others but grief through over-fishing, habitats destruction and unfair competition. This is why we must fight these illegal activities together

Negotiations at the FAO Committee on Fisheries in Rome to establish an internationally binding instrument on so-called port State measures are ongoing. The aim here is to allow port States to react with a set of measures when confronted with vessels that have clearly been engaging in IUU activities. Good progress has been made in the last year and, again, at the meeting last week in Rome. The last stumbling issues now need to be resolved so as to pave the way for an agreement on international measures.

As the biggest market in the world, the EU also wants to take action at the trade level and close the door to illegally-caught fish. Thus, last September it adopted a Regulation on IUU fishing which will enter into force on 1 January 2010. This Regulation will apply to all fishing vessels, under any flag. It seeks to prevent, deter and eliminate IUU fishing in all maritime waters. To ensure that no products derived from IUU fishing appear on the EU market or on markets supplied from the EU, the Regulation seeks to ensure full traceability of all fishery products traded with the Union through a catch certification scheme.

This scheme will improve and facilitate control and compliance with conservation and management rules in co-operation with third countries. The Regulation also comprises provisions on port State control, mutual assistance in monitoring and control, IUU vessel identification, and it includes a system of proportionate and dissuasive sanctions for serious infringements. We obviously want to do all we can to facilitate the implementation of this IUU Regulation and have held a number of bilateral meetings with third countries. My Services have also organised regional seminars for the authorities. Two have already taken place in South Africa and Columbia, one will be held tomorrow in Viet-Nam and one in June in Cameroon. The Commission is looking at having a fifth meeting for the Island Countries in the Pacific.

We also hope that others will follow in adopting market-related measures.

This brings me back to the co-operation I mentioned at the start. I know that Australia is also deeply committed to doing away with IUU practices, and I am confident that by working together we can help stamp out IUU fishing.

Australia's approach to IUU fishing is typical of its longstanding and pioneering commitment to sustainable fisheries. Your fisheries management and the ecosystem approach on which it is based are well known around the world. In the European Union, fisheries are facing tremendous challenges. Our own work in that vein has just entered a new phase with the publication of a Consultation Paper on the reform of the EU's Common Fisheries Policy, kicking off a debate to identify means of achieving sustainable and responsible fisheries in Europe.

The conditions for such a debate are good, given the awareness among European citizens of the need to develop sustainable fisheries. The public consultation will run for the remainder of the year and we expect to have a new ambitious and durable policy in place from 2013.

Co-operation is also very much a core principle of integrated maritime policy – another area in which Australia has led the way and provided us with much inspiration. Europe, a continent located between two oceans and four seas, has nearly 70 000 kilometres of coastline. Europeans have always been among the world's leading seafarers, and this remains the case today. Nowadays, over 40% of the EU's internal trade is carried out by sea, and almost 4.8 million Europeans now work in the maritime sector.

Yet, until 18 months ago when the integrated maritime policy was adopted, maritime matters had traditionally been addressed as part of sector-specific concerns at EU level: maritime transport, fisheries, aquaculture, off shore energy extraction, tourism and environment, to name but a few.

The IMP aims to provide an over-arching, integrated and coherent approach among the various sea-related initiatives taken under sectoral EU policies – an approach grounded in robust and constant multi-stakeholder interaction. The Commission is also encouraging Member States to adopt this integrated approach. This is particularly relevant at a time of economic crisis when we need to give an even stronger push for investment in the industries of the future and to create jobs. Offshore energy, port expansion, new energy transmission systems and the development of cost-efficient coastal infrastructure will ensure a return on Europe's investment.

Having been adopted by the Commission in October 2007, the EU's Integrated Maritime Policy, or IMP, is still in its infancy, but it is already progressing well. We have made meaningful progress in implementing the IMP via a Maritime Policy Action Plan adopted alongside the policy itself, thanks to an encouraging response from EU Member States.

This year will prove momentous for the IMP for two reasons. Firstly, at EU level, 2009 is the year in which we must complete the remaining actions announced in the Action Plan and, more importantly, we shall deliver a progress report on the value and achievements of the Integrated Maritime Policy since its launch in autumn 2007. The result of this process will set the tone for the IMP that will take shape under the new Commission.

Secondly, 2009 is also the year in which we intend to roll out the external dimension of the IMP. Before the end of the year, we will publish a Communication to set out how we intend to work with our international partners to further good maritime governance.

A visit to Australia in July 2005 enabled the Commission to use its analysis of the Australian experience in drawing up its own integrated approach to maritime affairs. Australia's governance system, in particular, was cited as an example of good practice in our Guidelines for an Integrated Approach to Maritime Policy that sets out key principles on maritime governance.

A number of other countries have since made significant strides in developing approaches to integrated ocean management. They include Canada, the United States, Norway, Japan and an increasing number of EU Member States. We have begun to notice a real trend developing among OECD countries in terms of building integrated approaches towards oceans, seas and coasts. So it is fair to say that Australia's pioneering efforts have certainly served as an inspiration to others. This has resulted in a considerable stock of expertise and a sufficient level of interest within the OECD members to enhance co-operation on integrated approaches at international level.

In this context, the Commission is considering the possibility of using the OECD as a forum for discussing maritime affairs. We believe that this could create a higher sense of ownership in the international community and would facilitate the exchange of best practices with respect to integrated maritime management.

The Commission also believes that the time is right to encourage the UN General Assembly to recognise the integrated approach to maritime affairs in its annual resolution on the oceans and the seas, and to advance the maritime agenda at global level. In our view, the 2009 negotiations on the future climate framework and the 2010 World objectives on biodiversity will provide excellent opportunities to that end.

As I said a moment ago, implementation of our Action Plan is well on track. This can be seen in a number of areas, of which I would like to highlight just two here, both of which are linked to illegal activities at sea, namely maritime surveillance and action against piracy...

Ladies and Gentlemen,

In today's globalised world, we cannot afford to work alone or to deal with issues in isolation. The bonds of friendship between the European Union and Australia are as strong as ever and provide us with a unique opportunity to work together to tackle issues of mutual interest and concern. I am fully convinced that my visit to Australia will produce a wealth of enriching ideas and experiences for us to share and will mark another step on our journey as friends and international partners in maritime affairs and beyond.

Thank you.


Dr Joe Borg

Member of the European Commission Responsible for Fisheries and Maritime Affairs

The European Union's strategy of sustainable management for the Arctic Conference: Arctic Frontiers

Tromso, Norway, 19 January 2009

Reference: SPEECH/09/9 Date: 19/01/2009

Conference: Arctic Frontiers

Tromso, Norway, 19 January 2009

Ministers, Distinguished Guests, Ladies and Gentlemen,

Let me first of all thank you for your invitation to address this important conference. One could not have made a better choice for the venue of a conference called "Arctic Frontiers" than the gateway to the Arctic itself.

Arctic Frontiers seeks to forge new partnerships to bring together the worlds of science, art, policy-making and business. Furthermore, its work to reach out in particular to younger generations and transcend ethnic divides will help carry today's decisions through into tomorrow and beyond. These principles very much underpin my message to you today.

We are gathered here in Tromsø to examine the opportunities and challenges for the Arctic region. Yesterday I had the chance to experience the beautiful landscape of the area myself and to gain an insight into what it means to live north of the polar circle and so close to the Arctic. The Arctic, as we know, plays a key role in regulating the Earth's climate system. And because of this key role, the future of the Arctic and that of our planet as a whole are inextricably linked.

Last September, I attended an international conference hosted by the Nordic Council of Ministers in Greenland entitled "Common Concern for the Arctic". I came away from Greenland more convinced, than ever, of the pressing need for decisive action in the Arctic at an international level.

With its focus on how to strike the right balance between human activity and protection of the ecosystem in the Arctic, this conference is both welcome and timely.

The melting of the ice in the Arctic together with advances that have been made in modern technology means that this fragile region will become increasingly accessible to international shipping and those wishing to exploit the rich and abundant resources located there. While we cannot prevent this, we can make sure that shipping, fishing and the extraction of minerals in the Arctic is done in a sustainable manner, providing maximum protection to the people of the region and the unique environment in which they live.

The European Union has close historical and geographical links to the Arctic.

We are working hard to limit the damage caused by climate change and we promote environmental sustainability in various ways, in particular through research and concrete action. Yet in areas such as transport and fisheries, our actions have a direct bearing on the Arctic.

In turn, the changing face of the Arctic impacts upon European security, trade and the supply of resources.

The European Union's Integrated Maritime Policy works on the fundamental premise that each sea region is unique and needs individual solutions in order to maximise the sustainable use of resources. The Arctic is no different, and so it is in this respect, that the European Union has an interest in securing a sustainable future for the Arctic. More than that, the Union feels quite strongly that it would also be failing its citizens, and the world at large, if it did not take its responsibility in this regard.

The European Union has a clear vision of the path it would like to take with regard to the Arctic, in cooperation with its international partners. That is why the Commission proposed a European Union Strategy for the Arctic on 20 November.

In a nutshell, the aim of this Strategy is to promote the sustainable management of one of the last relatively unspoilt areas on Earth. It firmly establishes our commitment to the region and states our willingness to be an enthusiastic contributor towards preserving the Arctic's common heritage. This commitment is very firmly underlined by the desire to do this in partnership with others.

More specifically, our Arctic strategy focuses on three main policy objectives: protecting and preserving the Arctic together with its population; promoting the sustainable use of resources; and enhancing multilateral governance in the region.

With respect to our first objective, to protect and preserve the Arctic, we need to channel our efforts primarily into the management of the negative consequences of climate change and into preventing any further aggravation. The European Union is ready to work together with Arctic states, territories, NGOs and other stakeholders to promote high environmental standards and to develop an ecosystem-based approach to managing human activity in the region. Our experience of close co-operation between public authorities and local stakeholders in planning new developments has proven beneficial to all parties time and time again.

But sustainable management, and in more general terms, finding the right policy response for the Arctic Region is not just about environmental action. We are convinced that there are two important ingredients that will make the cocktail right.

The first is about taking into account the specific concerns and needs of indigenous communities and the local population and drawing on their unrivalled knowledge of the region.

Another ingredient for any sound policy response for the Arctic must be based on sound scientific data. With 86 million euros, the European Union is a major contributor to research activities of direct relevance to the Arctic. In addition, individual Member States also fund information-sharing in research and co-operation in areas such as long-term monitoring and surveillance.

Such funding would benefit greatly from partnerships between EU and non-EU countries. An initiative such as the proposed sustained Arctic Observing Network could have a key role to play here. I would like to salute, in particular, the pivotal role that Tromsø University plays in research activities, setting an example to others working in Arctic research.

The second objective of our strategy lies in promoting the sustainable use of resources and focuses on hydrocarbons, fisheries, transport and tourism. The prospects in these different fields vary. Some forms of Arctic tourism for example, especially cruise ship tourism, are already underway, while the future for transport in the region remains rather less clear.

Here I would emphasise our commitment to the principle of freedom of navigation. We support improved conditions for gradually introducing Arctic commercial navigation, as long as stricter safety and environmental standards apply. Indeed in all of the areas I have just mentioned, we must adopt the same approach of strong international cooperation, sustainability, strict adherence to environmental standards and full respect for the rights and interests of local communities.

This brings me to the third objective, namely enhanced governance. The challenges and opportunities facing the Arctic are international in nature. This means they can and must be tackled through concerted international action. We must turn our back on the divisions of the 20th century and make unity the watchword for the 21st century.

The main legal framework and tool for managing the Arctic Ocean and its resources is the United Nations Convention on the Law of the Sea, or UNCLOS, which establishes the notion of a "common heritage of mankind". The Arctic Ocean therefore concerns not only its coastal states. Its sound management and the preservation of its resources is an obligation for all countries and signatories to UNCLOS.

We are convinced that an enhanced system of governance in the Arctic could prove to be a real asset. The European Parliament, which has consistently shown a keen interest in Arctic issues, recently highlighted the importance of Arctic governance. And the Council of the European Union has rightly stated that the EU's goals can be achieved only in close cooperation with all Arctic partner countries, territories and communities.

But we don't need to reinvent the wheel to build a governance system for the Arctic. Indeed, the structures we need for this, already exist.

We believe an UNCLOS-based governance system could deliver security and the sustainable use of resources stability, strict environmental management and subject to open and equitable access – precisely the aims contained in our strategy. In fisheries, we should examine sustainable stock management for the large areas of the Arctic Ocean, which are not covered by any such arrangements. One possibility for this would be extending the convention area of the North East Atlantic Fisheries Commission, NEAFC, to cover the entire Arctic. As regards international navigation in the Arctic, I believe that the International Maritime Organisation will have an even more significant role to play.

Furthermore, the EU would like to enhance its input to the Arctic Council and also hopes to see progress on moves towards an integrated approach to maritime issues.

The reinvigorated Northern Dimension – which counts Norway among its valuable partners – is now earning its stripes as a vehicle for concrete action and cooperation. New and existing Northern Dimension partnerships have great relevance for Arctic cooperation.

The Arctic Council and the Northern Dimension are also important fora for dialogue with the United States and Russia. We look forward to closer cooperation with the United States within the Arctic Council and beyond. The very recent US Presidential Directive on the Arctic contains a policy with very similar objectives to our own, namely protecting the environment, ensuring sustainable use of natural resources, involving indigenous peoples, enhancing monitoring and conducting research. It furthermore recognises that the best way to address challenges and opportunities is through international cooperation.

We look forward to working together towards these common goals.

In the same vein, we will continue our dialogue with Russia as a strategic partner. We are indeed also eagerly anticipating the publication of its Arctic strategy at the end of this month.

Ladies and Gentlemen,

The Commission has been encouraged by the reaction to its Arctic strategy. As ever we welcome receiving feedback from all stakeholders in order to ensure any proposals are both useful and directly relevant.

I sincerely hope that the discussions over the next few days will generate new ideas and help us take a step further towards securing a healthy Arctic region for future generations to come.

Let me finish by quoting Henrik Ibsen: "A Community is like a ship, everyone ought to be prepared to take the helm".

If the Arctic is our ship then we must all take the helm to preserve its future.

Europe wants to contribute towards the sustainable development of the Arctic region while protecting it from environmental changes that result from increasing human activity. With that in mind, our message to you is clear. All of us in a position to make and influence policy must recognise the need to contribute to the decisive international action we need for the Arctic in order to preserve our common heritage.

Let us be bold and protect this precious region in the interest of our planet as a whole.
Thank you.


Midday Express of 2006-11-24

Reference: MEX/06/1124 Date: 24/11/2006


News from the Communication Directorate General's midday briefing

24 / 11 / 06

Joe Borg welcomes consensus reached at the UN General Assembly on tackling destructive fishing practices (23/11)

At the end of the preparatory meeting of the General Assembly of the United Nations, in New York, Joe Borg, European Commissioner for Fisheries and Maritime Affairs, welcomed the consensus achieved by the Parties on tackling destructive fishing practices.

Mr Borg said that the European Union had worked in a positive and constructive manner toward consensus-building on the most effective way to tackle fishing practices that have a destructive impact on fragile marine ecosystems. The Commissioner said that he was particularly pleased by the fact that the UN consensus marks a new and important step towards strengthening and responsibilising Regional Fisheries Management Organisations in relation to the governance of the high seas.

The EU approach focused on ensuring acceptance of both the need to apply the precautionary principle and for urgent action to put in place measures that are effective and have a realistic chance of being applied. This is, of course, an on-going process and the EU will continue to play a full part in ensuring its success.

Commissioner Borg said that he was confident that the text agreed today would become a resolution when the General Assembly meets on 7 December. The Commission will shortly table concrete proposals to the Council on the areas of EU responsibility in this domain. (for more information: M. Thom - tel: 299 1630 - fax: 296 3067)


Speech by EU Commissioner Borg on Oceans and the Law of the Sea

Summary: Speech by EU Commissioner Borg on Oceans and the Law of the Sea (2 September 2005: Hamburg)

Oceans and the Law of the Sea: Towards new horizons

Speech by Dr. Joe BORG, Member of the European Commission Responsible for Fisheries and Maritime Affairs, "Oceans and the Law of the Sea: Towards new horizons," Address at the Conference of the International Tribunal for the Law of the Sea, Hamburg President of the Tribunal.

Distinguished guests,

When Arvid Pardo, on 1 November 1967, suggested to the UN General Assembly that a regime of common heritage replace the traditional regime of the high seas, he could not have imagined the historic importance his proposal would grow to assume. It was the start of a long process which led to the United Nations Convention on the Law of the Sea (UNCLOS), a Convention which as you well know was adopted finally in December 1982, and only entered into force in 1994.

Despite its long genesis and the delays in its entry into force, or perhaps because of them, the Law of the Sea Convention clearly has become a success story for the United Nations and the international community at large. On the first day on which it was opened for signature, 119 countries signed the convention, which was a record at the time.

With today's 148 ratifications, this constitution of the oceans may be deemed as practically universal and is among the major achievements of global governance based on the rule of law.

The European Union has, overall, been a supporter of UNCLOS, which by now is already a part of the Union's legislative architecture. The European Community deposited its instrument of ratification of UNCLOS on 1 April 1998, and since its entry into force one month later, has been an active and interested party to the Convention.

Over and above the EC as a Community, 24 of the current 25 EU Member States are also contracting parties of UNCLOS. These memberships prompted a declaration clarifying the division of competences between the European Community and its Member States as to the rights and obligations contained in UNCLOS.

As Judge Tulio Treves of this Tribunal recalled at a Symposium we held just recently in Brussels on the enforcement of fisheries legislation, this declaration of competences contains a number of dynamic elements. Following the major reform of the CFP in 2002, it may also be an opportune moment to consider updating the list of legislation attached to the declaration.

In the context of the UN System and within the subject of oceans and law of the sea, the EU has also been an active participant in the Informal Consultative Process (ICP) on Oceans and the Law of the Sea at the United Nations. We have followed this year's session closely and have taken particular note of its agenda comprising issues such as the conservation and sustainability of marine biodiversity and the contribution of fisheries to sustainable development.

I am also pleased to say, that the Union has been a strong supporter of this forum and we are fully committed to a prolongation of the ICP mandate. We have also made it clear that we attach great importance to resolving the discrepancy that currently exists between the European Community's observer status and its competences - whether exclusive or mixed - with respect to many issues that are being discussed in the ICP.

As a contracting party in its own right of both UNCLOS and of the UN Fish Stock Agreement, the European Community has accepted legal obligations with respect to oceans and the law of the sea that are particularly relevant to the ICP agenda. We hope, therefore, that the UN will grant the EU the status that fully reflects its rights and obligations under international law within the ICP.

Ladies and Gentlemen,

The peaceful settlement of disputes is an essential element of good governance of the oceans. The importance of the achievement of UNCLOS in instituting a specialized, permanent Tribunal on the Law of the Seas (ITLOS) cannot be underestimated. As you are probably aware, although the Community has contributed to the Budget of the International Tribunal for the Law of the Sea since 1998, it initially had a "wait and see" attitude towards this institution. Indeed in view of Article 287 of the Convention, the European Commission had proposed to the EU Council of Ministers in 1999 to take a decision not to express a preference for any of the three dispute settlement procedures provided for in UNCLOS and which are open to the Community, namely ITLOS, an arbitral tribunal or a special arbitral tribunal.

The Council of Ministers, however, never formally decided on the line proposed by the Commission, and the Commission in October 2004 decided to withdraw that proposal together with others that are no longer relevant.

Notwithstanding the 1999 proposal, the EU was positively disposed towards ITLOS. Indeed, already in the year 2000 in the context of a fisheries dispute between the EU and Chile the latter requested ITLOS to constitute an arbitral tribunal under Article 287 of UNCLOS. The European Community, represented by the European Commission, agreed that the case should be heard by a special Chamber of ITLOS.

This case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean revolved around questions of compliance with UNCLOS and whether the Galapagos Agreement which Chile has negotiated with three other southern American coastal states is in conformity with the Law of the Sea.

As you are well aware, this case raises a number of difficult jurisdictional issues, including with respect to the relationship between UNCLOS and the WTO. This was also the case when the EC initiated proceedings concerning Chilean restrictions on transhipments through its ports. I have been given to understand, that proceedings in both cases have remained suspended to date.

The European Commission is thankful for the cooperative attitude that the Tribunal took in the handling of the dispute, namely by first guiding the parties to an agreement on the establishment of a special chamber for hearing the dispute, and then by suspending the time-limits for the proceedings in this dispute, thus allowing the parties to accommodate each others concerns, at least for the time being.

Even if the Tribunal has not as yet decided on the merits of the actual dispute, the experience so far shows that proceedings have already been an important contribution to the peaceful settlement of the dispute. This demonstrates the Tribunal's potential role as a facilitator for peaceful settlements well beyond its intrinsic authority to rule on the merits.

The European Commission also has a major interest in the case concerning the Mox Nuclear Plant in Sellafield. In this case, Ireland brought an application against the UK and this Tribunal ruled, by Order of 3 December 2001, on a request for provisional measures, the substance of the case having been referred to arbitration under Annex VII of the Convention.

The arbitral tribunal felt that there were significant questions of EC law, and suspended its proceedings in order to give the Parties the possibility to resolve their dispute under EC law. Interestingly, the arbitral Tribunal ordered that the European Commission be provided a copy of its order.

The Commission in fact brought a procedure against Ireland on 30 October 2003 before the European Court of Justice. In that procedure, the Commission submitted that Ireland instituted the proceedings against the United Kingdom without taking due account of the fact that the European Community is a party to UNCLOS and that through its act of ratification the relevant provisions of UNCLOS have been incorporated into Community law. In those circumstances, by submitting the dispute to a Tribunal other than the European Court of Justice, Ireland has violated the exclusive jurisdiction of the ECJ for disputes between Member States concerning the interpretation of Community law.

This case raises a fundamental issue of Community law, on which the Commission seeks a clear judgement by the Court of Justice. The action by the Commission is guided by its duty, as established in the European Treaties, to secure and defend the integrity of the Union's legal order.

In no way does this action reflect a lesser perception of the authority of ITLOS.

On the contrary, the case reflects the great significance of UNCLOS as an integral part of the EC's regulatory framework on maritime affairs. This case also finds a close parallel in the recent judgment of the European Court of Justice in the Etang de Berre case, where the Court decided that a provision contained in an international convention for the protection of the maritime environment in the Mediterranean has direct effect on the Community legal order.

In addition, in 2003, the EU Presidency emphasised in the UN the importance of judicial mechanisms in the prevention and resolution of legal disputes, stating that "In our view the early and more frequent resort to these mechanisms and, in particular to the International Court of Justice and the International Tribunal of Law of the Sea, would greatly contribute to the maintenance of international peace and security and the promotion of the primacy of international law in international relations."

There may have been some misjudgements in the past on the economic importance of the oceans, for example in relation to the exploitation of the resources of the seabed. Yet today, the overall assessment remains however, that politically, economically and environmentally, the importance of the oceans, and thus UNCLOS, is on the rise and thus needs to be given its full due. According to one recent estimate, the economic value of the oceans amounts to a total of 4,363 billion euro for the years 2005-2009, not including the value of the ecological contribution by the oceans to mankind.

Ladies and Gentlemen,

The recent enlargement of the European Union has not only strengthened the EU politically and economically. It has also increased the length of the EU coastline and the total area of water under EU jurisdiction. The tonnage of the EU-controlled and registered, merchant shipping fleet is now also the biggest in the world.

It should not be a surprise, therefore, that this enlargement has helped us to become even more conscious of the maritime dimension of Europe and the great potential that oceans hold for us.

It is against this background that the European Commission is now preparing a Green Paper on an all embracing Maritime Policy, which is to be published in the first semester of 2006. This Green Paper will be the basis for a broad consultation of interested parties, a number of whom have already submitted their contributions.

By this Green Paper, the EU is seeking to address the economic, environmental, social, as well as governance challenges relating to the oceans and the seas, in a holistic manner. The objective is to set out options for a maritime policy that will maximise the benefits Europe can draw from ocean and sea related activities, bearing both the Lisbon strategy of employment and growth, and questions of sustainability, in mind.

Within this comprehensive approach to the oceans and seas, an important theme of the Green Paper will be the protection of the marine environment, as an essential component for the sustainable use of the oceans and seas, both in relation to EU waters and internationally. For this reason, the work of the European Commission on a "Thematic Strategy on the Protection and Conservation of the Marine Environment" will constitute one of the major building blocks of the Green Paper.

The Green Paper will also address options to make maritime professions more attractive and to strengthen education and training for these professions, given that, in certain sectors of maritime activities, the demand for qualified personnel cannot be satisfied.

Leadership in scientific research and development relating to both the natural conditions of the oceans and seas as well as technologies to be used in relation to them, is crucial to strengthen the knowledge base of Europe and its competitiveness. Building on existing policies of the Union, the Green Paper will explore options for the future.

We are conscious of the fact that Europe's relation with the oceans and seas has a number of very particular characteristics. One example is the strength of the European fleet and its global importance as a backbone for international trade. Another example is the major variation of hydrological, biological, geological, political and legal realities in the marine regions surrounding Europe, which must be taken into account in the formulation of a future maritime policy.

For example, the Baltic Sea is now almost entirely an EEZ of EU Member States with the exception of the areas falling under the jurisdiction of Russia. As a result of this, the Council of Ministers has decided that the EU should withdraw from the International Baltic Sea Fisheries Commission and turn to regulating fisheries either autonomously or in bilateral agreement with Russia. The Community will seek to build on IBSFC's efforts in ensuring the efficient governance of the Baltic Sea waters now under our jurisdiction. But let me also note that the dissolution of an international organisation - these days a rare event - is itself a contribution to good governance, if it is replaced by more efficient structures.

On the other hand, in the Mediterranean, EU Member States have not declared EEZs and the EU works with a large number of third countries. Given the different realities of the littorals of these two seas, it is only natural that the approach in these two situations must be different.

An added, significant dimension to relations within the Mediterranean, has been the recent declarations on extensions of Fisheries Protection Zones. The unilateral declaration of an FPZ by Libya, and the preparations of others like Tunisia and Malta who have so far enacted the enabling legislation, point to the need to establish more efficient means of consultation and co-ordination in the establishment of such zones. In the absence of such consultation, the unilateral extension of FPZs may have unforeseen impacts on the fishing patterns of other States and could jeopardize other states' traditional practices.

In order to mitigate these effects, in cases where such zones are aimed purely at enhancing the management of fisheries resources, a mechanism of prior consultation could be envisaged to ensure that the extension of such zones is not a source of tension or conflict.

The Commission has also intensified its dialogue with relevant bodies within the United Nations and other international organisations, as well as with third countries, in order to identify best practices relating to integrated ocean policies. These contacts are instrumental in discovering new possibilities to strengthen international cooperation and good governance of the oceans.

In the Green Paper, we hope not only to look at the European scenario but also at the contributions the EU can make towards strengthening the good governance of the oceans globally. Some of the issues to be raised will necessarily relate to law of the sea considerations and some may be of interest to this Tribunal.

Hence, while the economic, environmental and demographic pressures on the oceans and their resources are increasing, also the number of multilateral and bilateral agreements relating to ocean issues such as fisheries, environmental protection, or shipping is ever increasing; confirming the trend towards "Treaty congestion" as already identified in the 1998 report of the Independent World Commission on Oceans, entitled " The Oceans … our Future".

Many of these Treaties, however, either do not contain rules on a binding settlement of disputes, thus lacking enforcement, or they install special dispute settlement mechanisms, thus increasing fragmentation rather than coherence.

In this situation, we believe it is necessary that coherence and the rule of law are strengthened through an increased effort on behalf of the parties to UNCLOS to make good use of the existing institutions available for dispute settlement. We understand that parties may wish to bring cases before the International Court of Justice (ICJ) in areas relating to the Law of the Sea in which the ICJ itself has set a precedent. But we also believe that for cases which cannot be brought before the ICJ or for cases where ITLOS has a specific competence, that ITLOS should be the institution of choice.

This will necessarily be so for a number of the Community's cases given that the EC is not a state and as such may not be a party before the International Court of Justice in cases relating to the Law of the Sea. On the other hand, the EC can be a party before ITLOS, a fact which renders ITLOS the preferred choice for the European Community when it comes to disputes relating to the Law of the Sea. In order to strengthen this even further, the EU, where appropriate, could also offer to include a provision in the agreements relating to the Law of the Sea which it concludes with third countries binding the parties to refer the settlement of any disputes to ITLOS.

This will not necessarily significantly increase the number of cases before ITLOS. Rules on binding dispute settlement actually increase the incentive of parties to find mutual agreeable solutions - a fact which is in itself positive. Yet nevertheless, we do believe that taking a step such as that outlined above, could be an important contribution by the European Union to the strengthening of the rule of law in international relations.

Allow me, by way of conclusion, to come back to the fact that the EU comprises 24 Member States which may themselves be party to disputes that come before ITLOS, and that such cases could concern rules emanating from EU law or indeed concern the Community as party to UNCLOS. Given this, I would like to suggest that an exchange of letters between ITLOS and the European Commission on the swapping of information could be a useful step towards added coherence between EU law and the United Nations Convention of the Law of the Sea.

The Green Paper on a Maritime Policy for Europe will provide ample opportunity to discuss these and any other proposals which may be brought forward by stakeholders or the academic community. In this regard, as the Chairman of the Steering Group of European Commissioners discussing the Green Paper, I am looking forward to any contributions you may have in the months ahead and of course, to having a frank and open discussion here with you this evening.

Thank you.

· Ref: SP05-281EN
· EU source: European Commission
· UN forum:
· Date: 2/9/2005

Friday, October 9, 2009

Bangladesh Invokes UNCLOS Dispute Settlement Mechanism to Resolve Territorial Maritime Disputes With India & Myanmar

Bangladesh Starts Reacting to Maritime Dispute

By Salah Uddin Shoaib Choudhury

October 9, 2009

On Thursday [October 8, 2009], Bangladesh has served legal notive on India and Myanmar to settle the disputes over maritime boundary claims before a United Nations [UN] tribunals as it decided to take the issue to a compulsory arbitration under the UN Convention on the Law of the Sea. Disputes over the territorial waters amongst the three countries are preventing Bangladesh from extracting marine resources and establishing its sovereignty in the Bay of Bengal.

Bangladesh is yet to delimit its maritime boundary with its neighbours in Bay of Bengal, that is Myanmar on eastern side and India on its western side. Myanmar and India agreed on maritime territory between themselves but they need to solve the maritime boundary issues with Bangladesh.
During the last quarter of 2008, this problem gained momentum in the area near 50 nautical miles southwest of the St. Martin Island when Myanmar sent four offshore exploration vessels [2 Bahamas registered and 2 Belize registered] escorted by 2 naval ships to facilitate the South Korean Daewoo Company to explore the oil and gas resources. The situation become complicated when the Bangladesh Navy also positioned three ships at the spot after the Myanmar side reportedly began oil and gas exploration in that area. Despite protests by Bangladesh, citing sovereignty issues, the Myanmar government said that it would continue exploration in the Bay of Bengal. It stopped the oil and gas exploration in deep-sea blocks in disputed waters, a day after Bangladesh asked China to mediate the issue. Myanmar however has claimed that withdrawal was not because of the Bangladesh request; apparently the South Korean company had completed its seismic survey in Block AD-7. Although the tension has slowed down, the crisis is yet to be solved.

According to the United Nations Convention on the Law of the Sea [UNCLOS] 1982, a nation can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf. Generally a state's EEZ extends to a distance of 200 nautical miles [370kms] out from its coast. However, in the case of Bangladesh, India and Myanmar, the situation became difficult as coasts of these countries follow a curve which has led overaping of territory. Yet, neither party was interested to take it to UN, nor did they agree for joint survey mechanism, that India follows with Pakistan. Under the United Nations Convention on the Law of the Sea [UNCLOS] Bangladesh too has to file its claim by July 27, 2011.

Bangladesh's foreign minister Dr. Dipu Moni told newsmen on October 8, 2009 that Dhaka has decided to go to the United Nations arbitration as negotiations with India and Myanmar in past 35 years failed to resolve the issue. Indian high commissioner Pinak Ranjan Chakravarty and Myanmar ambassador U Phae Thann Oo were called in to the foreign ministry earlier in the day and foreign secretary Mijarul Quayes handed the notifications to them pass it on to their governments.The arbitration notifications were issued a day after prime minister Sheikh Hasina announced in the parliament her government's decisive move towards exploring gas in the Bay and with the state-owned petroleum corporation, Petrobangla, holding negotiations with two international oil companies to award contracts for exploration.Prime Minister Sheikh Hasina said in the parliament, 'We want to solve the problems with neighbouring countries without any quarrel. Problems can be solved through discussions.'

Briefing reporters, the foreign minister said that the arbitration would be initiated before a United Nations tribunal to be constituted in accordance with the principles and rules of the UN Convention on the Law of the Sea [UNCLOS].
Bangladesh appointed British jurist Vaughn Lowe QC as its arbitrator to plead the country's case at the world body. Bangladesh submitted the notifications of arbitration within weeks after agreeing to lease out three gas blocks in the Bay of Bengal to US company ConocoPhillips and Irish Tullow. ConocoPhillips, the third largest energy company in the US, will get deep-sea blocks 10 and 11 and shallow-sea block 5 will be awarded to Tullow. But India and Myanmar sent objections to ConocoPhillips asking the company not to explore the gas blocks 10 and 11, claiming that some parts of the blocks belonged to their respective territorial waters.
Foreign secretary Mijarul Quayes in a statement said the claims of Bangladesh's neighbours had 'unfairly cut off a significant portion of our maritime area in the Bay of Bengal and prevented us from exploring and exploiting our oil and natural gas resources'.

The Bay of Bengal has become a lucrative territory for countries, especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Myanmar's discovery of 7 trillion cubic feet of gas. According to British Petroleum, Myanmar has 21 Trillion Cubic Feet [TCF] of gas reserves, while Bangladesh has 13.77 TCF of gas. Most of them are located in the Bay of Bengali. However, except the discovery of Sangu gas field with about .848 TCF of recoverable gas, Bangladesh has not much of exploration on the five offshore blocks so farii. Bangladesh is very keen on utilizing its offshore reserves for the country's development after they realized that existing gas reserves were smaller than anticipated and predicted that abundant oil & gas reserves are most likely to be present in the offshore region.
In Bangladesh, oil and gas is an economic resource and is vital for the survival of 150 million people living in an area of 147,000 sq km. Gas is a major source of revenue and employment for expanding their industrial growth. Bangladesh has recently been facing shortage of gas, currently produces 1750 million cubic feet of gas a day and faces a shortage of nearly 200 million cubic feet in its daily domestic consumptioniii. This situation exists despite the existence of hydrocarbon in Bangladesh.

Generally wherever gas is found oil is also normally present in its lower strata provided certain geological conditions prevail. Thus, it is expected that the offshore area of Bangladesh may be rich in oil reserves.For several years after taking the lead in 1974 for offshore exploration, Bangladesh hibernated while India and Myanmar aggressively explored and discovered significant petroleum resources. Under the New Exploration Licensing Policy, India offered 55 blocks [24 deepwater blocks beyond 400m bathymetry] to the International Oil Companies [IOCs] in the Bay of Bengal during 2006, which is now under exploration phase. Bangladesh has claimed that the map published by the country clearly showed that blocks D-23 [8,706 square kilo meter] and D-22 [7790 square kilo meter] have overlapped Bangladesh's block 21 declared in 1991, which is technically very hard to prove.
On the other hand, Myanmar made significant gas discovery in the block A-1 and A-3 gas fields in the Bay of Bengal in Rakhaine Province, which is adjacent to Bangladesh. Disturbing part is, Bangladesh hardly knew that Myanmar has claimed certain blocks that are overlapping with their blocks in the Exclusive Economic Zone [EEZ] areas, which they have claimed in 1974. Bangladesh claimed in 2006, that Myanmar had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh took place in April 2008, which was ended inconclusively without making any significant progress in resolving the issue. There seems to be a strong feeling that Bangladesh should have registered their strongest protest against Myanmar's exploration in A-1, A-3 and India's exploration in D-22 and 23, like India had done in 1974 and again in 2008 against Bangladesh.

In 1974, Bangladesh was the first country among the South Asian countries which declared its jurisdictions on territorial waters, economic zones, and continental shelf through a national legislation in the parliament, known as the Territorial and Maritime Zones Act 1974. Regarding the maritime boundary issue, Bangladesh had a negotiation with both India and Myanmar commenced in 1974 and since then, there were series of meetings with the representatives of both countries in the intervening years. Later, negotiations were held with India in 1982 and with Myanmar in 1986 and recently during 2008. However, negotiations remained inconclusive with both India and Myanmar.
In the case of Bangladesh, India and Myanmar, the problem arose when they have taken different approach to demarcate their maritime boundary; because of which, India and Bangladesh bilateral talk's became inconclusive. India offers the equidistant principle as the basis for demarcating maritime boundary, where on Bangladesh favours a principle based on equity, which actually resulted in an area of overlap between them. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar [opposite States] agreed upon equidistant boundary among themselves on 23rd December 1986 through an agreement, which came into force on 14th September 1987.

According to the UNCLOS- Part V, any such dispute between any two countries should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Article 15 says, Delimitation of the territorial sea between States with opposite or adjacent coastsiv are:“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

It is clarified that if no treaty exists otherwise [as in case of India-Bangladesh], the equidistant line should be considered as boundary. There is no historic title, nor special circumstances that exist between these two countries. No official stay order was also issued from ICJ [International Court of Justice] on this dispute. Hence, technically Indian claim gets priority over the Bangladesh claim since the former follows the equidistant principle. Assuming that India does not intrude beyond the equidistant line, it is difficult to find technical fault from Indian perspective. There has been no official complain against India lodged in ICJ as well. A similar action by Myanmar few months back sparked enmity between the nations. It should be noted that Bangladesh needs to file the claim to UN by July 27, 2011, a failure of which would enable India and Myanmar to go ahead with their lines of demarcation.
However, the Articles 76 and 82 of the 1982 UNCLOS lay down the methods of delimitation of sea boundary between adjacent states [distinct from opposite states, such as Sri Lanka and India]. According to these articles, first the states shall settle the boundary through negotiations.
If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of settlement. Main argument is, delimitation of sea boundary between two adjacent states, such as Bangladesh and India, is different from that of opposite states such as India and Sri Lanka or Australia and Indonesia. The "equidistant method" that is applicable between the opposite countries in respect of delimitation of Exclusive Economic Zone [EEZ] and Continental Shelf cannot be invoked to draw the sea boundary between adjacent countries as it disregards the physical features of coastal areas and does not achieve "an equitable solution" as mandated by the UN Convention. If this method is applied, the boundary between adjacent countries will be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh with its adjacent neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve "an equitable solution”.

The unresolved martime boundary issue has surely put Dhaka, New Delhi and Yangoon in a kind of 'cold war' situation. Sensing Dhaka's initiatives in knocking the doors of United Nations in seeing resolution to the decade-old dispute, both New Delhi and Yangoon have started mobilizing all out diplomatic efforts in raising their voice in favor of their claim on the maritime boundary in Bay of Bengal. In this case, New Delhi will also be able to mobilize its friendly allies in the West as well take the support from Western media, as it enjoys a reputation of being a secular democratic nation in South Asia. On the other hand, Myanmar is considered to be a country ruled by autocratic military junta and Bangladesh a country, till now failing to combat rise of Islamist militancy. Naturally, the entire situation puts New Delhi rather in an advantageous situation. Now it is very important to watch the final fate of Dhaka's efforts in settling the long-dtanding dispute. Surely, this may either end in a all party acceptable conclusion, or may further generate tension amongst the three South Asian nations.


The Bangladesh-Myanmar Maritime Boundary Dispute

The 3rd World Review


On the 1st of November four drilling ships from Myanmar started exploration for oil and gas reserves within 50 nautical miles south west of St. Martins Island, in Bangladesh. A South Korean company was awarded the oil and gas exploration contract in that place and two Myanmar naval ships escorted the drilling ships. Three naval ships of Bangladesh went to challenge them but the Myanmar Navy responded by alleging that the Bangladesh Navy ships are trespassing.

This escalated the maritime boundary disputes between Bangladesh and Mayanmar. Mayanmar vowed to continue with the exploration despite the territorial dispute with Bangladesh. Bangladesh Government warned the Myanmar envoy in Bangladesh to immediately suspend all activities within the declared maritime zones of Bangladesh in accordance with the Territorial Waters and Maritime Zones Act 1974 of Bangladesh and sent a high level delegation to Myanmar.

Adding fuel to the fire four Bangladeshi woodcutters were shot dead by the Burmese Nasaka (border force) alleging trespassing into Burmese territory.

But what is the background of this dispute? The Bay of Bengal has become a lucrative territory for the adjacent countries especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Burma's discovery of 7 trillion cubic feet of gas. India also discovered oil.

None of the countries in this region so far claimed their marine boundaries before the United Nations (UN). India and Myanmar agreed territory between themselves but they need to solve the maritime boundary issues with Bangladesh as they are set to file their claim to the United Nations on June 29 and May 21, 2009, respectively. Under the U.N. Convention on the Law of the Sea (UNCLOS), Bangladesh too has to file its claim within July 27, 2011.

Bangladesh claimed in 2006 that Burma had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh was in April this year but ended inconclusively in Dhaka. Both the sides then agreed to continue with the dialogue to reach a conclusion and meanwhile refrain from intruding into the disputed area for exploration.

Bangladesh has so far refrained from energy exploration in disputed waters. But Myanmar did not. So the country has the right to protect its sovereignty and has demanded the Burmese ships withdraw until a maritime boundary can be established through talks.

The Guardian reports:

The senior official from Burma's foreign ministry told Reuters: "We have no reason to stop the exploration activities since these blocks are located in our exclusive economic zone. We will go ahead with it."

Only a couple of months ago the Vice Chairman of Myanmar Ruling Government during his visit assured Bangladesh that Myanmar will not embark on any drilling in disputed areas of Bay of Bengal and will resolve the boundary dispute through bilateral discussions as per UN guideline. Bangladesh also pressed for early finalization of the demarcation. The next meeting between the parties is due in November 16-17th. Now why Myanmar is going into the offensive?According to the Law of the Sea, Bangladesh can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf in the Bay of Bengal and so does Myanmar.India/Myanmar claim:Bangladesh claim:Images courtesy India Speaks.

The main dispute on maritime boundary delimitation between Bangladesh and Myanmar centres around Bangladeshi views to demarcate in equity basis North to South while Myanmar wants it for eco–distance system in East to West boundary.The issue is not so simple as there are many legal issues and international negotiations at stake. A famous case ruling by International Court of Justice on 'North Sea Continental Shelf' concerning maritime boundaries Federal Republic of Germany, Denmark, Federal Republic of Germany and Netherlands describes the equity method (Page 7):

(1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;Barrister Harunur Rashid has a legal view of Bangladesh's claims.

Engr. Khondkar Abdus Saleque writes in Energy Bangla:

If we fail to stop aggression of neighbours to encroach our maritime boundary through proper diplomatic initiatives we must take resort to UN Convention and move to international court of justice to resolve maritime dispute. We can not afford to compromise our sovereign right on resources. [..] For several months Bangladesh is discussing with Myanmar ruling junta for bilateral cooperation. Trade, energy, communication came under discussions. (But) Bangladesh did not make strong enough protests when ruling junta unleashed cruel actions against freedom loving Myanmar people were struggling for democratic rights.

In this situation it will not be unwise to consider Myanmar unilateral action as a fragrant violation of Bangladesh’s territorial integrity. If we fail to get the required response Bangladesh government must leave nothing unturned to protect our territorial integrity.

Myanmar earned $2.6bn from selling gas last year and these revues keep the country protected from western sanctions.

According to latest reports Myanmar stopped oil and gas exploration in deep-sea blocks in disputed waters in the Bay of Bengal on Thursday, a day after Bangladesh asked China for help over the row. But they are yet to remove vessels and equipment from Bangladesh territory.

Energy Bangla discusses Bangladesh's unresolved maritime boundary dispute with India. India is alleged to have encroached 19,000 square kilometers into Bangladesh waters.

India Speaks defends the case for India:

India and Bangladesh started their bilateral talks way back in 1974, which was inconclusive. India was looking for equidistant border where Bangladesh was for equity based boundary. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar (opposite States) agreed upon equidistant boundary.

It cannot be denied that Bangladesh is now exposed to international oil and gas politics. We will see more such conflicts between India and Myanmar before 2011 when the maritime boundary is scheduled to be fixed by UN. The government should give more focus to the demarcation issue and employ proper experts and resources to bolster Bangladesh's case.A Daily Star editorial says:

It is important that we make persistent and determined efforts to protect our interests. Bangladesh cannot afford to lose in the bargain for its legitimate share of the oil and gas rich Bay, which will only weaken our case for retaining the territorial waters that belong to us as per international laws.

Monday, July 13, 2009

How Europe's Precautionary Principle Can Be More Easily Enforced via UNCLOS Dispute Settlement & the 'Greening' of the WTO

The following excerpts were taken from a law review article that appeared in the June 2005 issue of the UCLA Journal of Environmental Law & Policy. (See Brian K. Myers Trade Measures and the Environment: Can the WTO and UNCLOS be Reconciled?, 25 UCLA J. of Env'l Law & Policy (June 2005) accessible at: ; This law review article provides further credible evidence concerning how U.S. UNCLOS Accession by THIS administration & THIS Congress would herald Europe's Precautionary Principle as U.S. and customary international law.

"Traditionally, disputes concerning trade measures were handled at the WTO--often with disappointing results for environmentalists. With the advent of UNCLOS, however, an alternative forum was created for hearing such disputes--at least as they pertain to UNCLOS provisions. In this context, it is possible that a nation might use trade measures that are permissible under UNCLOS but which violate WTO rules."

..."Free trade advocates have correctly pointed out that WTO rules impose virtually no restrictions on the ability of a nation to protect its own environment against damage caused by either domestic production or domestically produced or imported products. (35) The problem arises when nations use trade restrictions as a means of unilateral action to impose environmental regulations on other countries. (36) Such measures usually run afoul of the WTO Agreement."

"With respect to the oceans, for example, some nations have opted for strict environmental standards within their territorial waters and Exclusive Economic Zones (EEZs). On the other hand, developing nations--who control 90 percent of the world's coastal waters--may not share the same zeal for environmental protection. (38) Developing nations complain that environmental regulations amount to a cynical effort by rich countries to thwart the comparative economic advantage of poor countries. (39)".

"It is difficult to understate the global environmental importance of UNCLOS. When Secretary of State Warren Christopher submitted UNCLOS to President Clinton, Christopher described it as the "strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time." (96) .

"...Perhaps most environmentally significant is the fact that 59 of the 320 provisions in UNCLOS relate directly to environmental protection. (98) As a result, the fundamental aims of UNCLOS can safely be said to differ from those of the WTO. While the WTO is concerned foremost with the promotion of free trade and the removal of trade barriers, UNCLOS contains numerous provisions whose purpose is environmental protection of the oceans."

[See also J. William Middendorf, II and Lawrence A. Kogan, The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty, Institute for Trade, Standards and Sustainable Development (Sept. 2007) at: ].

The provisional orders issued by the ITLOS were justified--albeit indirectly--on application of the precautionary principle in international law. The ITLOS noted that all three parties had acknowledged that southern bluefin tuna stocks were at historic lows. (121) Moreover, there was major disagreement between the parties as to scientific data and the impacts of the experimental fishing program on bluefin tuna stocks. (122) In light of these factors, the ITLOS concluded that the precautionary principle was justified--at least until the case could be decided on the merits and the underlying scientific uncertainties resolved. (123)".

Article 30 of the Vienna Convention on the Law of Treaties (Vienna Convention) states that when two treaties conflict, the most recent treaty shall govern the dispute to the extent its provisions are compatible with those of the earlier treaty (per the doctrine of lex posterior). (143) In comparing UNCLOS to the WTO, the applicability of lex posterior is uncertain. UNCLOS entered into force on 16 November 1994 and certainly postdates the 1947 GATT Agreement. However, the WTO Agreement entered into force on 1 January 1995 and (just barely) postdates UNCLOS".

That said, it is probably unwise to apply lex posterior too dogmatically.Many treaties, including UNCLOS, are inherently evolutionary and are constantly amended and expanded over time. (146) It would be an absurd result, for example, if the U.S. finally ratified UNCLOS in 2005 and UNCLOS obligations therefore superseded pre-existing U.S. obligations under the WTO. Likewise, a WTO Member that adopted the Climate Change Convention in 1992 could be said to have nullified the treaty by adopting the WTO Agreement in 1994. In the absence of a Member's formal withdrawal from previous treaty obligations, neither example's outcome seems logical given that most treaties are continually affirmed, either directly or indirectly, through their very existence and evolution over time. (147)

Additionally, the established doctrine of lex specialis specifies that when two treaties conflict, the more specific treaty shall govern. In the aforementioned hypothetical, the issue at stake--preservation of marine life on the high seas--is particularly relevant to several provisions in UNCLOS, while no such provisions exist under WTO rules. Thus, it is possible to argue that UNCLOS supersedes WTO rules per lex specialis. [But?] Similarly, regardless of which tribunal hears the matter, either a WTO Panel or UNCLOS tribunal may apply the rules in the MEA to the extent they are specific to the conflict.

Nevertheless, the prospect of either tribunal applying a set of rules contained in an MEA against a non-party to the same MEA raises a significant problem...Consequently, while MEAs might be effective as applied to those nations that agree to them, there appears to be little basis in international law for applying MEAs to nations that have not consented to their application."

Putting aside the issue of treaty competition, it is also worth considering which forum is more appropriate for settling our hypothetical dispute. In a comprehensive study, McLaughlin provides a chart summarizing the salient differences between the dispute resolution systems of UNCLOS and the WTO. (152) With respect to using trade measures to protect marine life, he concludes that UNCLOS provides a more accommodating forum. UNCLOS provisions regarding non-compulsory negotiations, choice of forum, tribunal composition, applicable law, burden of proof, and implementation of decisions are all more favourable to Members than comparable WTO provisions. (153) For example, a nation that uses trade measures to protect the environment has a better chance of succeeding before a UNCLOS tribunal comprised of experts in the field of maritime and environmental law, rather than a tribunal made up of trade experts at the WTO. (154) UNCLOS provisions also benefit countries seeking to improve their marine conservation practices. This is because WTO tribunals are limited to applying law as contained in relevant trade agreements; they generally do not refer to outside sources. (155) In addition, the burden of proof in a WTO proceeding will always fall on the Member seeking to employ an environmental trade restriction. Under UNCLOS, the burden of proof shifts under different circumstances and may actually fall to the party accused of using inadequate environmental measures. (156) Finally, with respect to the implementation of a tribunal's decision, the losing party in a UNCLOS dispute often has far more flexibility, versus WTO rules, in deciding how to bring their procedures into compliance. (157)"

"...Unlike the WTO, UNCLOS contains no direct reference to trade measures. (158) UNCLOS proponents contend that this issue should be resolved from a broader perspective: do the trade measures in dispute enhance or defeat the object and purpose of UNCLOS? (159)...This author suggests, rather, that the UNCLOS approach is by nature multilateral and focused on collective action with respect to environmental protection. In this vital respect, the approaches of UNCLOS and the WTO are remarkably similar."

the WTO Secretariat issued a report entitled "Trade and Environment" on 14 October 1999. (171)...the Report did contain a startling, if often overlooked, innovation. For the first time, the WTO explicitly recognized the importance of MEAs (175) Of the 200 or so existing MEAs, the Secretariat noted that about 20 of them had the potential to affect free trade (176) Agreements such as the Montreal Protocol for the protection of the ozone layer and the Convention on International Trade in Endangered Species (CITES) allow countries to ban or restrict trade for the purpose of environmental protection. Although these and other MEAs clearly violate WTO obligations, the Secretariat explicitly endorsed their use...MEAs are a valuable form of environmental regulation because they are by nature multilateral and tend to foster cooperation as opposed to conflict. (177) The WTO took a significant cooperative step by promising not to intervene in trade-related disputes when it is clear that an MEA governing the issue exists between the parties. "

Conceivably, this relegation might include UNCLOS matters or other agreements in furtherance of UNCLOS provisions. Of course, any such agreements must be precisely worded to meet Article 281 and 282 requirements if the parties hope to utilize UNCLOS dispute resolution as an alternative to the WTO."

Perhaps the most articulate critique of the WTO highlights the tension between basic WTO obligations and the need to protect the 'global commons,' including oceans."

Businesses often lobby their government to oppose environmental treaties on the grounds that they will be placed at a competitive disadvantage vis-a-vis nations that are not part of the agreement. By imposing trade measures on non-parties to the agreement, these disadvantages can be minimized. (186) As such, numerous commentators have concluded that WTO restrictions on the use of such trade measures present a serious handicap to the international community's efforts to protect the global commons. (187)

These arguments are persuasive and worth considering. However, the conclusion that the WTO imposes a general ban on trade restrictions for environmental protection is overstated--especially in light of recent WTO jurisprudence concerning Article XX exceptions. Likewise, the WTO's endorsement of bilateral, plurilateral, and multilateral agreements suggests an increasing acceptance of such measures. The "free rider" and collective action problems can also be overcome through effective enforcement mechanisms in these treaties. (188)"

It is also impossible to ignore the resentment that would result if a handful of nations attempted to impose strict environmental standards on the rest of the world. The U.S., for example, is not capable of single-handedly coercing the world into adopting extensive environmental measures. (191) The amount of resentment that would be inherent in such an attempt would likely derail future hopes of multinational environmental cooperation. (192) Even if other nations [e.g., the European Union & its Member States] decided to help the U.S. by adopting similar environmental measures, the myriad conflicting national regimes would create a hopeless morass--each nation's system made further susceptible to being co-opted by domestic protectionist interests. (193) Finally, a frequently overlooked consequence of employing trade measures to further environmental protection is the possibility that a targeted nation might counter with equally damaging retaliatory measures. (194)"

Rather than viewing the WTO as the dominant legal regime, international law suggests that WTO trade-liberalizing rules are simply lex generalis, permitting the continuation or development of other more detailed rules. (200) This approach looks remarkably similar to the "umbrella approach" of UNCLOS, which incorporates other environmental treaties within the broad scope of its obligations. (201) WTO Panels could be compelled to give credence to more specific rules dealing with the environment...The WTO is not a hermetically sealed regime incapable of considering other treaties and aspects of international law. (202) To the contrary, WTO Panels frequently refer to outside sources and customary international law when interpreting WTO agreements. (203)"

the WTO should not be viewed as the sole forum for dispute resolution in all trade-related disputes. (207) The near judicial monopoly that the WTO has exercised to this point is no fault of its own given the underdeveloped nature of alternative dispute resolution fora. Nevertheless, the recent proliferation of alternatives provides a unique opportunity to broaden the options available for parties seeking resolution to trade-related environmental disputes."

"...Commentators have also suggested that hitherto ignored WTO rules may actually contain untapped potential for environmental protection. (211) By drawing on rules of international law from outside the WTO, this potential could be realized. For example, the WTO often considers so-called 'non-violation' cases. These cases involve trade concessions granted by one Member to another in which the benefits that would normally accrue are nonetheless "nullified or impaired" by subsequent action. However, suppose one Member grants a trade concession to another Member--say, reduced tariffs on the importation of sardines--and the exporting Member realizes a benefit as a result. Subsequently, imagine that the granting Member begins to over-fish their waters for sardines, thus driving down the domestic price of sardines, and nullifying the benefit that the receiving country expected. The receiving country could argue that over-fishing for sardines violates UNCLOS provisions...If the case is pursued at the WTO, the Panel would need to determine whether over-fishing of sardines violates UNCLOS. Assuming that it does, the Panel would then determine whether the violation--despite being a non-WTO environmental violation--nullifies the benefit of the trade concession."

WTO Panels must become more accommodating to outside sources of law. Consider UNCLOS Article 293, which gives tribunals a broad mandate to 'apply this Convention and other rules of international law not incompatible with this Convention.'"

On a related point, the WTO must become more accepting of outside expert advice, especially in the form of amicus curiae briefs. Although the WTO has pledged to make the dispute resolution process more accessible to NGOs, such reforms have been limited. To its credit, the WTO has turned to expert advice in the form of scientific testimony."

A final area for consideration involves the availability of provisional measures. The WTO has never granted provisional relief in a trade dispute, let alone a dispute involving environmental issues...In such cases, relief should be available when it can be shown that irreparable harm will occur in the interim period before international cooperative agreements can be established."

Additionally, provisional measures might be based on the precautionary principle. While debate persists over whether the precautionary principle has assumed the status of customary international law, it could eventually become a basis for provisional measures at the WTO. (219) Although the final ruling in the SBT Case was disappointing, the ITLOS established useful precedent with respect to the precautionary principle".

"...multilateralism is the fundamental trait characterizing both regimes. With respect to the WTO, significant progress has been made in expanding Article XX exceptions for environmental protection. WTO jurisprudence has been augmented by the endorsement of MEAs as a vehicle for environmental protection. While perhaps remaining deficient in the eyes of some, these developments suggest a trend toward ever greater acceptance of environmental measures".

UNCLOS, on the other hand, faces a different challenge. As a creature of the modern environmental movement, its numerous provisions establish its credentials as a vital component of international environmental law. The challenge for UNCLOS lies not in its attention to environmental issues, but in the meaningful implementation and enforcement of its provisions. While the "umbrella approach" of UNCLOS is commendable in its breadth, the lynchpin is the cooperation of Members under other treaties and international agreements in carrying out UNCLOS obligations. The precise relationship between these agreements and UNCLOS is unsettled, as demonstrated by the reluctance of tribunals to find jurisdiction in cases touching on both UNCLOS and outside agreements."