[THE U.S. CONGRESS AND THE OBAMA ADMINISTRATION HAVE THUS FAR REFUSED TO HOLD TRANSPARENT AND INCLUSIVE PUBLIC HEARINGS TO EVALUATE IN-DEPTH THE ENVIRONMENTAL DIMENSIONS OF THE UN CONVENTION ON THE LAW OF THE SEA (UNCLOS) WHICH THIS ADMINISTRATION, LIKE THE BUSH & CLINTON ADMINISTRATIONS PRECEDING IT, SEEKS FOR THE U.S. TO RATIFY. PERHAPS ONE REASON THEY HAVE BEEN RELUCTANT, DESPITE PUBLIC CALLS TO DO SO, IS THAT THEY DO NOT WISH TO DISCLOSE TO THE AMERICAN PUBLIC THE COMPLEX RELATIONSHIP BETWEEN THE UNCLOS' ENVIRONMENTAL PROVISIONS, REGULATIONS, PROTOCOLS, & ANNEXES, EVOLVING INTERNATIONAL ENVIRONMENTAL LAW, AND THE CHANGES THAT THE ADMINISTRATION & CONGRESS WOULD NEED TO MAKE TO CURRENT U.S. FEDERAL & STATE ENVIRONMENTAL LAWS & REGULATIONS TO ENSURE U.S. COMPLIANCE WITH THE RELEVANT UNCLOS ENVIRONMENTAL PROVISIONS UPON RATIFICATION. UNFORTUNATELY, A NUMBER OF FORMER AND CURRENT U.S. NAVY OFFICIALS, POLITICAL FIGURES AND ACADEMIC COMMENTATORS HAVE CONTRIBUTED TO THIS ONGOING SECRECY. FOR A DISCUSSION OF THESE RELATIONSHIPS IN THE ABSENCE OF CONSTITUTIONALLY (DUE PROCESS) REQUIRED PUBLIC HEARINGS: See Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009) at pp. 61-70, abstract and working paper available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 ; Lawrence A. Kogan, 'Ecosystem-Based Management': A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation, Washington Legal Foundation Legal Backgrounder (July 2009) at: http://www.wlf.org/Upload/legalstudies/legalbackgrounder/071009Kogan_LB.pdf
THE FOLLOWING DISCUSSION REFLECTS OBSERVATIONS MADE BY THIS AUTHOR, BASED ON THE AVAILABLE LITERATURE AND PUBLIC INFORMATION TO DATE, WHICH STRONGLY SUGGESTS ADDITIONAL REASONS WHY THE OBAMA ADMINISTRATION AND THE U.S. CONGRESS HAVE THUS FAR FAILED TO CONVENE TRANSPARENT & PUBLIC IIN-DEPTH HEARINGS TO INFORM THE AMERICAN PUBLIC ABOUT THE ENVIRONMENTAL DIMENSIONS OF THE UNCLOS.]
I. UNCLOS is at the Center of a Global Network of Multilateral Environmental Regulatory Treaties
A. There Has Been a Rapid Progression of International Environmental Law Focusing on the Marine Environment
A. There Has Been a Rapid Progression of International Environmental Law Focusing on the Marine Environment
During the twenty-year period spanning 1972[i]-1992[ii], the world witnessed the negotiation of many multilateral treaties calling for the increased regulation of the environment. In fact, as many as 302 separate but overlapping Multilateral Environmental Agreements [MEAs] were drawn up during this era, many of which [“197, or nearly 70%”] are regional rather than global in scope.[iii]
These MEAs are generally viewed as falling within two general categories. The first category consists of “Core environmental conventions and related international agreements”. They are themselves divided into five clusters: a) the biodiversity-related conventions,[iv] b) the atmosphere conventions,[v] c) the land conventions,[vi] d) the chemicals and hazardous wastes conventions,[vii] and d) the regional seas conventions and related agreements”.[viii] According to UN authorities, the second category of MEAs consists of “Other Global Conventions Relevant to the Environment, including Regional Conventions of Global Significance,”[ix] to which the 1982 United Nations Convention on the Law of the Sea (UNCLOS) belongs. [x]Both UN and environmental commentators believe that “40% [or more] of [all of] these treaties are related to the protection of the marine environment, with the comprehensive UNCLOS as [their] centerpiece...” [xi] (emphasis added).
The following regional seas conventions, some accompanied by separate implementing protocols, fall within the first category of MEAs, all of which are related to the UNCLOS: 1) Convention for the Protection of the Mediterranean Sea against Pollution; 2) Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution; 3) Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region; 4) Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific; 5) Regional Convention for the Conservation of the Red Sea and Gulf; 6) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region; 7) Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region; 8) Convention for the Protection of the Natural Resources and Environment of the South Pacific Region; 9) Convention on the Protection of the Marine Environment of the Baltic Sea Area; 10) Convention on the Protection of the Black Sea against Pollution; 11) Convention for the Protection of the Marine Environment of the North-East Atlantic; 12) Draft Convention for the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific; 13) Draft Framework Convention for the Protection of the [Marine] [Environment] of the Caspian Sea.
The UNCLOS and its related protocols are among an additional group of “global conventions relevant to the environment, including regional conventions of global significance” – i.e., MEAs.[xii] There are thirty four ‘marine pollution’ conventions protocols and amendments related to the International Maritime Organization (IMO), as well as, several ‘oceans-related conventions including the 1958 Convention on the Territorial Sea and the Contiguous Zone, the 1958 Convention on the High Seas, the 1958 Convention on the Continental Shelf, the 1964 Convention for the Int’l Council for the Exploration of the Sea (as amended), the 1982 UNCLOS, the 1994 Agreement Relating to the Implementation of Part XI of the UNCLOS, and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks.
According tothe German Advisory Council on Global Change (WBGU), an independent, scientific body established by the German federal government in 1992 (in preparation for the Rio Earth Summit) to analyze and report global environment and development problems,[xiii] there is a complex multi-dimensional interrelationship between various potential environmental harms posed to the global commons and the applicable multilateral environmental regulatory treaty regimes that address them. Besides the UNCLOS and the International Convention for the Prevention of Pollution from Ships (MARPOL),[xiv] there are included within this network several of the core UNEP-administrated MEAs, namely those concerning biodiversity, atmosphere and land.[xv] These include the UN Framework Convention on Climate Change (UNFCCC) and its accompanying Kyoto Protocol and the UN Montreal Protocol on Substances that Deplete the Ozone (Montreal Protocol) (atmosphere); the UN Convention to Combat Desertification (UNCCD) (land); the, the UN Convention on Biological Diversity (CBD) and the non-binding UN Forum on Forests (UNFF)[xvi] (biodiversity).
And, as the UN has found, “By far the largest cluster of MEAs is related to the marine environment...and is distinguished by the United Nations Convention on the Law of the Sea (UNCLOS) (1982), new IMO marine pollution conventions and protocols, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (1995), as well as the regional seas MEAs and regional fisheries conventions and protocols” (emphasis added).[xvii]
The United Nations classifies the UNCLOS as a “global convention relevant to the environment”, rather than as a “core environmental convention...of global significance whose negotiation, development and/or activities have been associated with UNEP’s (UN Environment Program’s] work...”[xviii] This distinction is not insignificant.
B. UN Secretariat and UN Environmental Program Share Responsibility for Managing UNCLOS & Related Oceans Treaties
According to the UN, the UNCLOS operates “under the UN General Secretariat”,[xix] whereas the core MEAs operate, for the most part, under the UNEP [xx] and/or four other related UN organizations.[xxi] Commentators, as well, have noted how the UNCLOS Secretariat is only one of several organizations, including the International Maritime Organization (IMO) and UNEP...that deal with the marine environment. The IMO manages agreements concerning pollution from ships; UNEP manages the regional seas program; and the UNCLOS Secretariat handles the broader legal framework.” [xxii] In addition, “The UN General Secretariat [also] serves as the secretariat for... the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks.” [xxiii]
Moreover, although the UN views the 11 legally binding regional seas conventions (including the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and its accompanying Protocol Concerning Pollution from Land-Based Sources and Activities[xxiv] – a/k/a the ‘Toilet-Bowl Treaty’[xxv]) as falling within the latter group of “core environmental conventions and related agreements of global significance” that are under the jurisdiction of the UNEP, the “regional seas conventions are also known, because of their multisectoral nature [and]... comprehensive” nature, to be “systematically linked to global conventions and agreements” such as the UNCLOS, whose implementation they tend to support. [xxvi] “In fact, the regional seas programmes were developed as complimentary instruments to UNCLOS.” [xxvii]
“By far the largest cluster of MEAs, the...regional seas conventions and action plans, are a global mosaic of agreements with one over-arching objective: the protection and sustainable use of marine and coastal resources. In the early years shortly after the Stockholm Conference, the regional seas programmes focused on marine pollution control. In the ensuing 25 years they have involved into multi-sectoral agreements addressing integrated coastal area management, including in several cases links to the management of contiguous freshwater basins; land-based sources of pollution; conservation and sustainable use of living marine resources; and impacts of offshore exploration and exploitation of oil and gas” (emphasis added). [xxviii]
A prior 1996 OECD report further corroborates this relationship.
“The need for a global approach to deal with the management of oceanic resources ‘in the interests of the mankind’ was brought to the attention of the United Nations in 1967. The ensuing negotiations led in 1982 to the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). The Convention takes an ecosystem approach and covers all forms of marine pollution. Part XII of the convention contains the only existing, comprehensive, binding international law, covering pollution from all sources, whether land-based, oceanic or atmospheric. It also provides a comprehensive, binding system for the peaceful settlement of environmental issues. In parallel, and in the spirit of UNCLOS negotiations, further impetus for the development of regional programmes was provided in 1974 by the decision of the UNEP to launch a Regional Seas Programme through a series of regional action plans. Recognising the intimate links between the marine/coastal and terrestrial environments, the Programme aimed to deal with the problems of deteriorating conditions in the marine/coastal environment through the control of their land-based causes” (emphasis added). [xxix]
“While the legal office of the UNCLOS Secretariat ha[d previously] played an advisory role in the development of regional seas conventions and protocols, however, this support has unfortunately been sporadic in recent years.” [xxx]
“Throughout the years, beginning with the work of the Seabed Committee in 1968 and later during the nine-year duration of the Third United Nations Conference on the Law of the Sea, the United Nations has been actively engaged in encouraging and guiding the development and eventual adoption of the Law of the Sea Convention. Today, it continues to be engaged in this process, by monitoring developments as they relate to the Convention and providing assistance to States, when called for, in either the ratification or the implementation process. The goal of the Organization is to help States to better understand and implement the Convention in order to utilize their marine resources in an environment relatively free of conflict and conducive to development, safeguarding the rule of law in the oceans.” [xxxi]
As a result, the burden of administrating and coordinating the burgeoning MEA network has been left to the respective UNCLOS Parties and the UNEP treaty secretariats in which they simultaneously serve as Member State Parties, that have had to perform multiple and perhaps overlapping management functions.
“While the scope and mandate of MEA secretariats can vary, from a functional point of view they can be divided into two categories: (a) secretariats that prepare and service the meetings of the COPS [Conference Of the Parties] and their subsidiary bodies and coordinate with other international organizations (UNFCCC, the Montreal Protocol, CBD, the Ramsar Convention, CMS, AEWA, ASCOBANS, EUROBATS, the Rotterdam Convention and the Stockholm Convention); and (b) secretariats that, while carrying out the functions of the first category, are also involved in implementing programmes or projects at the regional and country levels (WHC, CITES, the Basel Convention, the UNCCD, the GPA and regional seas conventions and action plans). An important function of most secretariats is the monitoring and evaluation of the implementation of their MEA, proposing formats for national reports, receiving and analyzing reports submitted, and providing the COP or MOP with syntheses of the information contained in national reports.” [xxxii]
Notwithstanding this assessment, commentators have concluded that, “the UNCLOS Secretariat is [was and remains] a part of the United Nations”,[xxxiii] and could potentially play an influential role in ensuring how the UNCLOS is interpreted and implemented in the future by UN member parties.[xxxiv] According to UN scholars,
“Nearly every international organization can point to reports drafted by expert UN Secretariat personnel that were the basis for subsequent action by policy-making bodies...At a tactical and procedural level, Secretariat officials are storehouses of information on such policy-relevant matters the conduct of meetings, the drafting of resolutions and tactics of effective advocacy...When UN resolutions call for government action rather than establishing operating programs, Secretariat officials may perform a diplomatic function in seeking compliance from member states. The object of the negotiation is as varied as the subject matter of the resolutions...” (emphasis added).[xxxv]
This is clearly contrary to what U.S. government officials[xxxvi] backed by the former chairman of the U.S. Senate Foreign Relations Committee [xxxvii] and academic commentators [xxxviii] have publicly stated.
The WBGU’s analysis, set forth in the upper of the two accompanying diagrams, further supports this conclusion. It reflects a simplified structure of the UN Environment Program (UNEP) as of 2000, focusing on the relatively flexible but supportive relationship between the UNEP’s main office and several of the core MEA secretariats (CBD, UNFCCC and UNCCD) that it oversees and/or manages.[xxxix] In this regard a distinction should be made between MEAs that fall directly within UNEP (e.g., the CBD and others not here depicted),[xl] and MEAs that fall under UNEP auspices but not directly within it (UNFCCC, UNCCD). The illustration also shows how the UN trusteeship which, in part, incorporates the UNCLOS Secretariat, relates to but yet stands apart from and falls outside the direct control of the UNEP. The chart demonstrates the general flow of information between the UNEP treaty secretariats and the scientific bodies (e.g., the Intergovernmental Panel on Climate Change (IPCC) and other such bodies not here depicted),[xli] as well as, the flow of monies from several different UN organizational funding mechanisms (e.g, the UN Development Program and Global Environmental Facility), the World Bank, and from private donor sources. In addition, the illustration places the UNCLOS in a box entitled, “Trusteeship”, thereby reflecting the legal and fiduciary responsibility of the UNCLOS Secretariat, the UN General Secretariat and/or the UN International Seabed Authority, pursuant to the CHM doctrine, to hold in trust and protect the deep sea floor (‘the Area’ comprised also of the surrounding global ocean and atmosphere commons) for the future benefit of mankind.
C. The UNCLOS Legal Framework Could Be Used to Revive and Expand the Notion of a Centralized UN Trusteeship Over the Global Commons
The U.N. is made up of six organs: General Assembly, Security Council, Secretariat, International Court of Justice, Economic and Social Council and Trusteeship Council.
Actually, the placing of the UN/UNCLOS Secretariat within the larger trusteeship square may reflect much greater ambitions within the United Nations system. In particular, it may evidence renewed efforts to reconstitute the now moribund UN Trusteeship, one of the six principal organs of the UN originally established in 1945 “to oversee decolonization efforts of those dependent territories that were to be placed under the international trusteeship system created by the United Nations Charter as a successor to the League of Nations mandate system.” [xlii]
“With the independence of Palau, formerly part of the Trust Territory of the Pacific Islands, , in 1994...and its mission thus fulfilled, the Trusteeship Council suspended its operation on 1 November 1994...[A]lthough under the United Nations Charter continues to exist on paper, its future role and even existence remains uncertain... The formal elimination of the Trusteeship Council would require the revision of the UN Charter. The Commission on Global Governance's 1996 report Our Global Neighborhood recommended amending Chapters 12 and 13 of the United Nations Charter to give the Trusteeship Council authority over the global commons, which consists of oceans, the atmosphere, outer space, and Antarctica. The World Federalist Association issued an action alert calling for members to lobby the Government in support of this reform. Their theory is that an international regulatory body is needed to protect environmental integrity on the two-thirds of the world’s surface that is outside national jurisdictions. In March 2005, however, UN Secretary-General Kofi Annan proposed a sweeping reform of the United Nations, including an expansion of the Security Council. As this restructuring would involve significant changes to the UN charter, Annan proposed the complete elimination of the Trusteeship Council as part of these reforms” (emphasis added). [xliii]
While the status of former UN Secretary-General Kofi Annan’s 2005 plan for UN reform remains uncertain, it is useful to recall Maurice Strong's initial plan to begin reforming (read: restructuring) the United Nations, released during 1997. Pursuant to Strong’s plan entitled, Renewing the United Nations: A Programme for Reform, (A/51/1950) (July 14, 1997), the overall reform of the UN would include “a restructured UN Trusteeship Council.”
“The UN Trusteeship Council, created originally to oversee the transition of colonies to independence, is to become the trustees of the global commons. Global commons is defined to be ‘The atmosphere, outer space, the oceans beyond national jurisdiction, and the related environment and life-support systems that contribute to the support of human life.’ The United Nations Center for Human Settlements (HABITAT) is being incorporated into the United Nations Environment Program (UNEP). The restructured UNEP will administer all environmental treaties, more than 300 currently, and will become the implementation and enforcement arm of the UN Trusteeship Council” (emphasis added).[xliv]
The UN General Assembly, in recognition of this report, declared soon thereafter in resolution A/RES/52/12 (Nov. 12, 1997) that,
“...[R]eform of the United Nations will be an ongoing process and that there is a need for the United Nations to consider changes of a more fundamental nature and other broader issues, and invites the Secretary-General to elaborate further his proposals, taking into account the views of Governments, and to present them to the General Assembly by the end of March 1998 on: (a) A new concept of trusteeship” (emphasis added). [xlv]
D. A UN Global Trusteeship that Covers the Oceans the Seabed and the Atmosphere Above Falls Under the Auspices of the UNCLOS Legal Framework Which Entails Layers of UN Secretariat and UNEP International, Regional, and National Environmental Regulation
“One of the most significant features of the UNCLOS agreement was its commitment to be a comprehensive and universally accepted delineation of maritime law as well as an institution with a strong and wide-ranging conflict resolution system.” [There are also] “layers of regulation and enforcement...nested within each other...Individual citizens and companies are first regulated by their own state, and then states themselves are regulated by the Convention. This allows problems to be addressed at the appropriate level” (emphasis added). [xlvi]
The likelihood that this dynamic network of UN-based MEAs and related regional environmental treaties and regulations will continue to expand into the foreseeable future is very real. For example, UNCLOS Articles 64.1 and 118, which deal with living resources (e.g., migratory fish), call upon UNCLOS parties to create new rules and institutions at the regional level to govern the sustainable management of those marine resources when they straddle EEZs or swim the high seas. A broad interpretation of these UNCLOS provisions arguably led to the negotiation and entering into force (December 11, 2001) of the UN Migratory Fish Stocks Agreement,[xlvii] a full fledged environmental/natural resources regulatory treaty (protocol) affecting the international commercial fishing industries that was designed to implement the legal obligations alleged to have been assumed by UNCLOS State Parties.[xlviii] The Clinton administration promptly signed and ratified this protocol on December 4, 1995 and August 21, 1996 [xlix] respectively, in anticipation of securing the subsequent US ratification of the UNCLOS; but ratification of the UNCLOS was apparently not necessary to give effect to this protocol’s strict environmental regulatory provisions.[l] And other UNCLOS provisions (e.g., Parts XIII and XIV), as well,[li] arguably gave rise to the Clinton-Gore administrations’ mistaken assumption that it could also secure ratification of the Kyoto Protocol to the UNFCCC, based on aggressive but untested use of novel treaty interpretation theories.[lii] Such notions would have given full force and effect to the broad ‘global constitutional’ principles believed by legal commentators to be embodied in the UNCLOS,[liii] which such commentators advised “had to be sensitive to [the UNCLOS’] relationship with existing and future rights and obligations that would run between its Parties.” [liv]
It would appear that this UN trusteeship would extend to both the Arctic and Antarctic regions and would entail modifications of the UNCLOS to expressly incorporate Europe’s Precautionary Principle to further accommodate it. Recognizing this linkage,[lv] the Obama administration has expressed its intention to both ratify Annex VI of the Antarctica Treaty’s Madrid Protocol and to accede to the UNCLOS, recognizing that they these regulatory treaty regimes are “intimately related”.[lvi] During the past few years, European officials, United Nations University scholars, university academicians and green activist groups have called for UNCLOS parties to effectuate this relationship by negotiating a new Implementing Agreement incorporating updated international environmental legal norms, including Europe’s Precautionary Principle. They believe that a more comprehensive agreement is needed to fill the regulatory gaps and resolve the apparent conflicts that exist between these related legal regimes (i.e., as reflected, in part, by the lack of consensus concerning the status of legal claims to Antarctica and the competing notions of national jurisdiction and the common heritage of mankind[lvii]), which allegedly render the environmental health of the ‘high seas’, otherwise known as, ‘areas beyond national jurisdiction’ (‘ABNJ’) and the marine genetic resources found within them vulnerable to further degradation from pollution and global warming/ climate change acidification.[lviii]
According to Dr. Gerhard Hafner of the Austrian Federal Ministry for Foreign Affairs, who spoke in 2006 before the United Nations General Assembly, the European Union is squarely in favor of such an agreement.
“[T]he EU reiterates its call for the development of an Implementation Agreement consistent with the [UNCLOS] which will provide for the conservation and management of marine biological diversity in areas beyond the limits of national jurisdiction, including the establishment and regulation, on an integrated and precautionary basis, of marine protected areas where there is a scientific case for establishing these areas…The measures in ABNJ have to be based on the best available scientific information and the precautionary principle” [lix]
Given the focus of Madrid Protocol Annex V on establishing Antarctic Specially Protected Areas, it is quite apparent that the subject matter of an UNCLOS Implementing Agreement would be consistent with and complement that of the Madrid Protocol.
More recently, during 2008, Aleksander Čičerov, Minister Plenipotentiary at the Permanent Mission of Slovenia to the United Nations, speaking on behalf of the European Union, remarked that, “the EU remains of the view that ultimately an Implementation Agreement under UNCLOS would be the most effective option in order to provide such an integrated regime and address in a comprehensive manner the multiplicity of challenges facing the protection and sustainable use of marine biodiversity in ABNJ.”[lx] He provided the following rationale which echoes his colleague’s call for a Precautionary Principle-based implementing agreement:
“The implementation of the UNCLOS general framework and principles for the management of the oceans relies mainly on sectoral or regional instruments. This fragmented approach does not allow for the development of a global strategy to protect marine biodiversity. This has notably prevented the international community from establishing multipurpose MPAs in ABNJ, given the lack of integrated mechanisms to identify, design, manage and enforce such tools…The mainly sectoral focus of existing ocean bodies also results in a patchy application across sectors of basic principles guiding ocean governance and management. The ecosystem approach, the precautionary principle or prior impact assessment are being gradually incorporated as basic tools underpinning the policy of existing ocean bodies, but this evolution is taking place unevenly and is far from being completed. Whilst recognising the importance of these sectoral and regional bodies, the lack of an integrated approach is a hindrance to effectively protecting ocean biodiversity…[T]he EU also recognizes that there are short-term options available through existing arrangements, which can help to achieve the above mentioned goals of integration, coordination and cooperation, working through the existing competent bodies, when available…[T]he EU proposes the establishment of multi-purpose pilot Marine Protected Areas in ABNJ as a key element of an ecosystem-based and precautionary approach to oceans management.” [lxi]
Indeed, the EU has also expressly raised the need for an UNCLOS Implementing Agreement incorporating Europe’s Precautionary Principle to govern the Arctic region.
“The EU should work to uphold the further development of a cooperative Arctic governance system based on the UNCLOS which would ensure: security and stability[;] strict environmental management, including respect of the precautionary principle [; and] sustainable use of resources as well as open and equitable access…Proposals for action:…Explore all possibilities at international level to promote measures for protecting marine biodiversity in areas beyond national jurisdiction, including through the pursuit of an UNCLOS Implementing Agreement[;] Work towards the successful conclusion of international negotiations on marine protected areas on the high seas” (emphasis added). [lxii]
Furthermore, one in a series of reports from the International Union for Conservation of Nature and Natural Resources (IUCN), a green activist group, “identifies regulatory and governance gaps in the current international regime for the conservation and sustainable use of marine biodiversity in ABNJ”. In response, it has cited the need for “An instrument or mechanism to ensure that modern conservation principles such as the ecosystem approach and the precautionary principle are incorporated and applied in all existing global and regional treaties or instruments relevant to ABNJ.”[lxiii] One such possibility is a “global instrument on [marine protected areas] MPAs or more broadly on marine spatial planning…consistent with UNCLOS [that] could serve as a means to implement the environmental duties of Part XII in the context of modern eco-system-based and precautionary management approaches” (emphasis added).[lxiv]
A second IUCN report in that series has argued that such an implementing agreement would logically entail the imposition of formal environmental limitations upon what are assumed to be ‘high seas’ freedoms throughout the globe.
“Under UNCLOS, the high seas are open to all States and certain ‘freedoms’ include inter alia navigation, overflight, fishing and [marine scientific research]…The freedoms are not absolute as they are conditioned by obligations to not cause damage to the environment of other States arising from customary international law and the general obligations under UNCLOS to protect and preserve the marine environment; to conserve high seas living resources; to prevent, reduce and control pollution of the marine environment; and to fulfill their duties to cooperate with other States”.[lxv]
Clearly, this report makes reference to the environmental restrictions placed on freedom of navigation by the 45 provisions of UNCLOS Part XII [lxvi] and the three related International Seabed Authority (ISA) regulations.[lxvii] Indeed, as concerns the broad scope of the ISA’s mandate pursuant to UNCLOS Article 145,[lxviii] a prior IUCN report had declared that,
“[T]he 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”.[lxix]
Apart from the loss of navigational and economic freedoms deemed necessary to preserve and protect the marine environment, as discussed above, one of the IUCN reports suggests that the scope of such an UNCLOS Implementing Agreement, moreover, could be broad enough to cover the legal status of intangible property rights acquired in marine genetic resources (MGRs) in the ABNJ (i.e., it can preside over the loss of US private property rights as well). In other words, the objective of such an MGR framework would be to redistribute such rights and the financial profits and benefits flowing from them so that they may be ‘equitably’ shared with[lxx] developing countries.[lxxi]
“It is thought that bioprospecting and exploitation of MGRs in the water column falls under the regime of the high seas, whereas there is debate as to the extent that the Part XI regime for the Area applies to MGRs of the deep-sea bed. The ISA under Part XI has no direct authority to regulate the exploitation of biological resources in the Area because the term ‘resources’ is defined as being non-living resources. If the issue of bioprospecting is to be included within an Implementation Agreement, the potential role of the ISA in such a regime also needs to be discussed. Legally it would be possible to broaden the mandate of the ISA which would reduce the need for development of a new institutional structure for regulation of bioprospecting for MGRs sourced from the deep seabed”.[lxxii]
A legal framework of this nature would be akin, but not identical, to the politically controversial ‘access and benefit sharing’ (ABS) treaty proposed by developing country members of the United Nations Convention on Biological Diversity (CBD).[lxxiii] Unlike the ABS regime previously proposed at the CBD during 2003, which is intended to facilitate the redistribution and equitable sharing of genetic materials acquired from national forests located within the sovereign territories of developing countries and the financial benefits flowing therefrom,[lxxiv] the proposed MGR ‘high seas’ framework would likely fall under the UNCLOS’ common heritage of mankind doctrine. During 2007 and 2008, for example, the EU proposed such a regime in the context of the UNCLOS and the Antarctic Treaty, as a temporary ‘fix’ to protect the ‘high seas’ marine environment until the time that regulatory gaps in ocean governance can be remedied through an UNCLOS Implementation Agreement.[lxxv]
These issues are not new in the context of the UNCLOS. Previously, during a 2006 meeting of a UN General Assembly Working Group on marine biological diversity, the “EU had proposed a new UNCLOS implementation agreement” on fisheries to control deep sea bottom trawling activities “and the creation of marine protected areas, invoking the Precautionary Principle” to ensure “the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.” Not unexpectedly, the U.S. and Japan had strenuously objected.[lxxvi] The disagreement reflected the apparently different regional and national conceptions of how the benefits of marine genetic resources should be shared with developing countries. Whereas Europe called for the expanded jurisdiction of the International Seabed Authority over the global commons and new international regulations to protect such resources as the common heritage of mankind, the U.S. and Japan argued that such resources should instead fall subject to the freedom of the ‘high seas’ principle.[lxxvii] Commentators, therefore, have already pointed to the potential conflict over the future treatment of marine genetic resources located within the U.S. EEZ and the global commons.
II. European Government, Academic and Activist Calls for UN Institutional Reform Requires Changes to Global Environmental & Oceans Governance
France and Germany have long considered how best to strengthen UN environmental governance[lxxviii] in order to ensure the protection of the global environment from excessive economic exploitation (i.e., globalization) and to counter-balance the growing influence of the U.S.-backed World Trade Organization (WTO) which continues to sanction it. It was not until 1998, however, that the formal process for considering reforms to the UN Environment Program was begun in earnest.
“In 1998, UN Secretary-General Kofi Annan established the United Nations Task Force on Environment and Human Settlements in order to elaborate proposals for strengthening UNEP and Habitat (United Nations Centre on Human Settlements). Klaus Töpfer, UNEP Executive Director, was appointed chair. The motivation behind establishing the Task Force was the generally shared conviction that institutional fragmentation in numerous separate environmentally related processes has led to a loss of effectiveness. The brief of the Task Force was to review the structures of environmentally related activities within the UN, to evaluate their efficiency and effectiveness and to submit proposals for improving the environmental work of the UN at the global level and the role of UNEP as leading environmental organization. In addition, recommendations were to be made for strengthening the role of UNEP as the main source of environmentally related information for the CSD.”[lxxix]
The key outcome of the review was a Task Force proposal “to establish an Environmental Management Group headed by the UNEP Director”, which would “better coordinate the exchange of information, new initiatives and the planning framework” and “ensure an efficient and effective use” of the UN’s limited “resources.”[lxxx] In addition, the Task Force proposed that a “global environmental forum” be convened annually “at the minister level” to discuss and “review the environmental agenda of the UN and its implementation.” The first such meeting took place in Malmö, Sweden during May 2000.[lxxxi]
A. The German UNEP Reform Proposal
Sometime during 2000, perhaps in preparation for that meeting, the WBGU (German Advisory Council) submitted to the German Government[lxxxii] an extensive proposal to reform the UN Environment Program (UNEP), which it believed will improve the UN’s ability to coordinate the UNEP’s various activities in furtherance of the UN’s environmental goals.
The lack of coordination and collaboration among individual activities to preserve the natural basis for human life is painfully obvious. In an era of globalization – meaning also global accountability for the environment of the planet as a whole – humanity must unite in a common effort for the sustainable co-evolution of nature and human society. Yet global environmental policy does not today enjoy a priority commensurate with the magnitude of the problems it addresses. This is why now, shortly before the World Summit on Sustainable Development (WSSD), the German Advisory Council on Global Change (WBGU) proposes a new Earth Alliance as a vision for the restructuring of international environmental institutions and organizations.” [lxxxiii]
Among the environmental problems mentioned, was the destructive exploitation of the world’s oceans, which the report characterized as “a common asset that can be used by all”. In particular, the report emphasized that, although there were international agreements already adopted to protect the oceans, these agreements (e.g., the UNCLOS and the regional seas agreements) were not, partially due to lack of adequate funding, being implemented and enforced as intended.
“Because the greater part of the oceans is a common asset that can be used by all (common access problem), international agreements are indispensable to provide effective protection for the oceans by abating pollution and destructive exploitation. A further aspect is that pollutants are transported far across national boundaries by the air and ocean currents, so that generators and affected parties are far removed from each other. Here numerous international agreements have already been adopted (e.g. UNCLOS, MARPOL), but a need for action remains to further develop these regimes and, in particular, to enforce them. The UNEP regional seas programmes provide promising international approaches, under which institutional environmental policy arrangements are agreed among the coastal states of specific regional seas. However, implementational problems, such as inadequate funding, have meant that enforcement capabilities are still lacking.”[lxxxiv]
The WBGU proposal called for the expansion and conversion of the UNEP agency into a centralized supranational Earth Alliance effectively consisting of three interrelated organizations/chambers: an International Environmental Organization (IEO), an Earth Commission and an Earth Funding body.
“The Council’s vision of an Earth Alliance to reform the framework of international environmental institutions and organizations builds on existing structures and develops them further as needed. The Earth Alliance breaks down into three crosscutting areas – Earth Assessment, Earth Organization and Earth Funding – to be linked to one another through mutual commitments for information and communication exchange, joint activities and common financing models.”[lxxxv]
“[T]he Council suggests a gradual reform of the relevant international network of institutions in its entirety, which in the long term should lead among other things to an ‘International Environmental organization’ under the auspices of the UN...The concept under discussion here is an organizational structure for international environmental policy resting on three pillars of an Earth Alliance: The first pillar represents a coordinated and integrated system for continual analysis and evaluation of the global environment and development situation (Earth Assessment).The second (and central) pillar concentrates and structures all relevant regimes and trusteeships, in particular the central environmental conventions (Earth Organization). The third pillar unites the totality of all financial and other resources for effective Earth System management,” (emphasis added). [lxxxvi]
This structure is illustrated in the lower of the two accompanying diagrams. As readers may discern, the UN’s trusteeship over the global commons covers not only the oceans, but also the airspace above, as well as, outer space. In addition, all of the MEAs, including those shown, would fall under the auspices of the IEO. Furthermore, funding to maintain the commons would be derived from a combination of ‘user fees’, public funds and private donor funds. Also, the scope and extent of the permitted uses as well as their rate of charge would likely be regulated by reference to the assessments of environmental harm triggered by the specific activities in question as determined by one or more of the scientific panels listed or to be created.
In particular, the Earth Commission would be established as an independent entity, modeled after the German Council for Sustainable Development, to serve as a special authority for the evaluation of environmental problems. Its duty would be to issue timely warnings of environmental risks that ‘catch the public’s attention’, and it would possess limited authority to make proposals, vis-à-vis scientific panels, to the public.[lxxxvii]
“This commission would provide the long-term perspective needed to protect environmental resources and safeguard the rights and interests of future generations, and would provide impulses for research activities and political action. A particular function of the Earth Commission could be to place on the international agenda, in a manner that catches the world’s attention, issues which would otherwise be neglected despite their vital importance” (emphasis added) [lxxxviii]
“Such a commission might be viewed as a globalized form of the German Council for Sustainable Development (Rat für Nachhaltige Entwicklung)” (emphasis added).[lxxxix]
Apparently, the paradigm of ‘science’ the German report had in mind would be modeled after the German, and by extension, the European Precautionary Principle.
“Overall, the assessment process should seek to integrate the Earth Commission, the scientific policy advice community and the CSD. In the view of the Council, such an interplay of ethical authority, cutting-edge scientific expertise and open debate within a UN institution is crucial to the enterprise of assessing the complex problems of global change in a manner that is both appropriate to the issues at hand and does justice to the precautionary principle”. It is above all important that this assessment process has a dynamic structure and adapts continuously to changing conditions and findings. The Earth Commission should not only sound the environmental ‘warning trumpet’, but should also be able, if developments are favourable, to give the ‘all clear’” (emphasis added).[xc]
Consistent therewith, the Earth Funding mechanism would ensure “payment for use of the global commons and precautionary adaptation and compensation funds play an essential role (Earth Funding)” (boldface emphasis added).[xci]
The formation of an International Environmental Organization (IEO), according to the report, would entail the merger of UNEP with the numerous UN MEA secretariats. The IEO would operate exclusively and independently from, but would coordinate its projects with, the UN Development Program (UNDP), the World Bank, the Food and Agricultural Organization (FAO) and/or UN Industrial Development Organization (UNIDO).[xcii]
The recommendations set forth in the 2000 WGBU report were most likely embraced by the German Government, and later echoed by the then German Environment Minister, Jürgen Trittin, at a 2004 international environmental governance conference convened in Paris by the Institut du Developpment Durable et des Relations Internationales (IDDRI).[xciii] Mr. Trittin was very clear in expressing Germany’s aim in promoting UN environmental reform:
“to strengthen and enhance the United Nations Environment Program [in order] to make real improvements in living conditions [and to create] a fundamental counterweight to the World Trade Organization and to the international environmental governance structures which are driving globalization forward” and preventing “the principle of sustainable development [from] assert[ing] itself at the international level.”[xciv]
In particular, Tritten emphasized the need for 1) “universal membership of all UN Member States in the UNEP Governing Council and consequently also in the Global Ministerial Environment Forum” 2) “enhancement of UNEP to a UN Environment Organisation”; and 3) “a clear improvement in UNEP's scientific basis”, i.e., the “prime importance [of having] international scientific consensus on the nature and extent of environmental problems, as well as on possible solutions and obstacles”.[xcv]
In addition, the former German Environment Minister publicly declared Germany’s agreement with France concerning the need for a strengthened and reformed UNEP.
“We agree with the French Government that strengthening UNEP presupposes its transformation into a specialised agency, a UN Environment Organisation that is on equal footing with major players such as the World Health Organisation, the International Labour Organisation and the World Trade Organisation. Globalisation must be structured in an environmentally and socially compatible way. To achieve this we need a strong UN Environment Organisation” (emphasis added).[xcvi]
...I welcome the stance on the UNEO that the French Government has outlined on numerous occasions, most recently at the New York working group. France's clarification that this is not a case of an institution à la WTO is correct, since the WTO is not a member of the UN family. The UN Environment Organisation needs the same status as the FAO and the ILO, namely that of a specialised agency. It is also true that the major task of operating worldwide capacity building for efficient environmental policy cannot be achieved by a UNEO alone. It requires the solidarity of the UN Development Programme and the World Bank” (emphasis added). [xcvii]
B. The French UNEP Reform Proposal
In 1998, a year after former German Chancellor Helmut Kohl officially stated at a 1997 UN General Assembly special session on environment and development that, “global environmental protection and sustainable development need a clearly audible voice at the United Nations”, former French President Jacques Chirac called for “the establishment of an international environmental organization”.[xcviii] Two years later, in June 2000, former “French Prime Minister Lionel Jospin and French Environment Minister Dominique Voynet “announced their intention to use the French EU presidency to advance the debate on an international environmental organization.” [xcix]
At the 58th Session of the UN General Assembly, during September 2003, Mr. Chirac recommended the development of a United Nations Environment Organization (UNEO). On behalf of France, he emphasized the link between environmental protection and global security, stating that, “We now realize that globalization demands stronger economic, social and environmental governance.”
“[Chirac] proposed the creation of ‘a new political forum’, [i.e.,]...a council...representative of the present state of the world economy...[that] would be entrusted with the responsibility for providing the necessary impetus to the international institutions for improving their coordination, and for anticipating and tackling global problems more effectively. ‘Against the chaos of a world shaken by ecological disaster, let us call for a sharing of responsibility, around a United Nations Environment Organization’, Chirac said”.[c]
Thereafter, “an informal working group was set up in New York to facilitate dialogue between governments on UNEP reform”.[ci] According to a 2004 multi-stakeholder dialogue environmental governance report, the French UNEP reform proposal for a UNEO sought to achieve several objectives: 1) “to raise the profile of international environmental agreements [MEAs]; 2) “to build institutional capacity”; and 3) to streamline environmental and other institutional demands”. It was claimed that UNEO was to be viewed as a long term goal, and not as a substitute for a strengthened UNEP, which was the priority.[cii] “With over 500 MEAs institutions and governance frameworks are being placed under increasing stress...activities are required to ensure policy and institutional coherence, capacity building and compliance”[ciii]
France once again publicly reasserted its commitment to global environmental governance during February 2005. While attending a joint meeting of the French National Assembly and Senate at Versailles to reform the French Constitution by incorporating within it an Environment Charter enshrining Europe’s Precautionary Principle as French constitutional law, former Prime Minister of France, Jean-Pierre Raffarin, stated that,
“France [is] commit[ted] to global governance of the environment and to the...creation [of]...a United Nations Environment Organization. I am pleased to say that there is already growing international support for this, with Rio and Kyoto providing tangible evidence.” [civ]
And, more recently, although French President Nicholas Sarkozy was provided the political opportunity to ‘scrap’ the Precautionary Principle, deemed a major obstacle to French national economic and technological growth and French industries’ global competitiveness by the same socialist-stocked Attali Commission he himself had appointed to liberalize the French economy, he nevertheless chose, as a matter of ideology and trade protectionism, to reject that advice.[cv] [cvi] [cvii]
C. The EU-UNEP Reform Position
During September and October 2007, the European Union expressed its support, as well, for the establishment of a new International Environmental Organization based on a reformed and restructured UNEP. This message was delivered first in September on behalf of the EU by Joao Salgueiro, Portugal’s Permanent Representative to the United Nations.
“In this regard, the European Union would like to reiterate its willingness to work with the wider Membership of the UN, and all other relevant stakeholders to, strengthen IEG and upgrade UNEP... The European Union firmly believes that an ambitious reform is required in order to achieve real change and feels encouraged to work for the establishment of a UN Organization for the Environment based on UNEP, with a revised and strengthened mandate, supported by Stable, adequate and predictable financial contributions and operating on an equal footing with other UN specialized Agencies.” [cviii]
The European Union’s support was delivered again during October 2007, as a more elaborate written response to a paper prepared by the co-chairs of a UN General Assembly International Environmental Governance consultation group.
“While significant strengthening of the IEG system can be achieved through short-and medium-term reform, such as the measures included in the proposed building blocks, the EU firmly believes that an ambitious reform is required in order to achieve the desired strengthening of the IEC system and feels encouraged to work for the establishment of a UN Environment organization in, Nairobi, based on UNEP, with a revised an strengthened mandate, supported by stable, adequate and predictable financial contributions and operating on an equal footing with other UN specialized Agencies.” [cix]
In addition to emphasizing the need to ensure an acceptable international paradigm for consideration of science and economics issues when assessing environmental concerns, the EU made the following remarks, which should be of interest to U.S. policymakers.
“Scientific knowledge and management of scientific information should be at the basis of sound environment policy and has a key role to play in the IEG system. UNEP must continue to be the authoritative body and centre of excellence on monitoring assessment and early warning on the global environment that can mobilize scientific support, information and knowledge as well as technical support and capacity building...The creation of a Chief Scientist is a very interesting proposal which could allow UNEP to become the convenor of choice for scientific institutions and communities. The option should, however, be carefully assessed and other options also envisaged. Apart from the need for a high-caliber incumbent, the institutional support is key to success. In addition, based on the growing need for multi-disciplinary work the inclusion of a highly competent senior economist, with expertise in the fields of environmental and development economics in a support team should be considered. There is also a need to strengthen existing scientific networks and capacity within UNEP. UNEP should focus scientific assessment on areas which are valuable to diverse policy constituencies and have political traction” (emphasis added). [cx]
“The strengthening of UNEP and the further creation of a UN Environment Organisation should facilitate a strengthened scientific base for lEG, improving policy and decision-making. The mandates should allow it to be an authoritative body and centre of excellence on monitoring assessment and early warning on the global environment that can mobilize scientific support, information and knowledge as well as technical support and capacity building” (emphasis added).[cxi]
The EU’s letter also addresses the need for a revised and reformed UNEP to improve coordination between and among the UN’s numerous MEAs, which would presumably result in an improved and more coherent relationship between UNCLOS and the core UNEP MEAs and regional seas programme agreements and protocols discussed above.
“The call for an increased cooperation and coordination between different MEAs, the need for greater synergies between local and regional offices and a better cooperation between UNEP and the MEAs are strongly supported by the EU. Enhanced cooperation and coordination among the different entities would Ensure a more coherent system and lead to enhanced and facilitated national implementation of the MEAs, Reducing the burden of participation on Parties, especially developing country Parties” (emphasis added). [cxii]
Lastly, the EU response highlights how a UNEO might help to secure a stable, reliable and adequate source of financing/funds to tackle the increasing degradation of the global environment. Besides calling for improved efficiencies in the use of funds, the EU also emphasizes the need for such an organization to develop new innovative methods to finance the protection of the global environment for the future.
“In the face of increasing environmental degradation in developed and developing countries, the EU believes more efficient use of existing resources is needed, as well as, ensuring adequate global financial means. The establishment of a UNEO could enable the setting of a more stable, predictable and adequate budget, taking into account the respective requirements for efficient and effective operation of the headquarters, as well as, for the organization’s activities in accordance with the work programme. The EU can support the objective to ‘improve financing for the IEG system and for environmental activities through timely and adequate funding’ and efforts to make more efficient use of existing resources” (emphasis added).. [cxiii]
In this regard, we would like to highlight the proposals on a financial tracking system and on a funding structure for UNEP that allows for private sector contributions and increased adequate future replenishments of the GEF. Innovative ways to provide more financing for environmental protection are likely to be required in addition to the measures proposed” (emphasis added). [cxiv]
D. International Academic & ENGO [cxv] Input
It is also clear that ‘multilateralist’ academics and ENGOs have significantly influenced the thinking of environmentally ‘enlightened’ UN and national government officials about the urgent need for UNEP institutional and governance reform, given the ‘magnitude of environmental problems’ believed to be facing the global community. Among the barriers to international coordination on environmental governance, two professors have cited the difficult obstacles posed by a lack of immediately visible environmental problems, a lack of adequate funding, and a lack of cooperation from UN member states seeking to preserve their national sovereignty.
“There is clearly a disconnect between the magnitude of environmental problems on the one hand and the ability of contemporary institutions to effectively address them on the other. For all the rhetoric, agreements, and promises of action over the past 30 years, actual institutions, processes, and resources have fallen short of addressing the problems for which they were established. To be fair, environmental problems are difficult to tackle because they are hard to see, spread over space, stretched out in time, with diffused costs and concentrated benefits. National sovereignty in the face of global environmental problems has also proven a difficult obstacle to effective solutions as governments have been driven to act on the basis of narrowly defined self-interest rather than the common good. In addition, too often, international environmental organizations are under-funded or otherwise incapacitated. Moreover, disjointed priorities within national governments have led to conflicting viewpoints in different international forums. Nevertheless, the lack of coherence and coordination of organizational priorities, activities, and investments at the international level only exacerbates the problem. A key finding of the empirical analysis we undertook is that even though a certain division of labor among international organizations may exist, considerable overlap and duplication of activities likely persists” (emphasis added). [cxvi]
As a result, a key argument made within a second article prepared by one of these authors, Ms. Maria Ivanova,[cxvii] is that UNEP should enhance its institutional and governance abilities as “an ‘anchor institution’ for the global environment”.
“While stewardship of the global environment is a Herculean task to place on any institution’s shoulders, UNEP, Ivanova argues, is uniquely positioned to carry it. Created in 1972, it was meant to be ‘a central coordinating mechanism in the United Nations to provide political and conceptual leadership, to assess the state of the global environment and to contemplate methods of avoiding or reducing global environmental risk and of working out joint norms.’ UNEP is an ‘anchor institution’ for the global environment. Anchor institutions, said Ivanova, have four roles: to oversee the monitoring, assessing and reporting on their particular issue; to set agendas for standards and guidelines; to develop institutional capacity to address existing and emerging problems; and to develop new ideas. Though they aren’t alone in working on global issues, anchors are the glue that holds such efforts together. On that score, UNEP, which began with such promise, has lost its grip. ‘The key thing is that UNEP, created in 1972, has never been systematically reviewed externally,’ said Ivanova. ‘We cannot know how to improve unless we know where we are and how we got there’” (emphasis added). [cxviii]
According to Ms. Ivanova, UNEP was formed for just this purpose.
“UNEP was not purposefully established as a 'weak, underfunded, overloaded, and remote organization.' Rather, it was created as the ‘anchor institution’ for the global environment to serve as the world’s ecological conscience, to provide impartial monitoring and assessment, to serve as a global source of information on the environment, to ‘speed up international action on urgent environmental problems,’ and to ‘stimulate further international agreements of a regulatory character.’ Most importantly, the mission of the new environment Programme was to ensure coherent collective environmental efforts by providing central leadership, assuring a comprehensive and integrated overview of environmental problems and developing stronger linkages among environmental institutions and the constituencies they serve” (emphasis added).[cxix]
These papers were among many other contributions that comprise the chapters of a book entitled, Global Environmental Governance: Perspectives on the Current Debate, recently released by the Center for UN Reform Education, a New York-based NGO.[cxx]
One other paper included within this UNEP reform book, which is germane to the discussion of international environmental taxation, was contributed by Mohamed El-Ashry, currently a Senior Fellow at the United Nations Foundation. In Mr. El-Ashry’s opinion,
"In order to deliver on the internationally agreed goals and commitments, the UN will require stronger leadership and greater capacity for the environment. It is in the international community’s interest to have institutions that can respond effectively to the threats of environmental degradation. In this regard, UNEP is the right organization to set global standards and to coordinate system-wide environmental activities. It should be strengthened with a renewed mandate and improved funding, with broad oversight for international environmental governance” (emphasis added).[cxxi]
Interestingly, Mr. El-Ashry previously served as Chief Executive Officer and Chairman of the Global Environment Facility (GEF),[cxxii] during which time he advocated in favor of international environmental taxation to support global environment-centric sustainable development regulatory policies.
“A carbon or energy tax is often suggested as a means of generating revenues for global environment and sustainable development purposes. Closely related is the recent fund-raising provision of the Kyoto Protocol known as the Clean Development Mechanism (CDM) which is linked to carbon emission trading and joint implementation. There are also ideas related to taxing international air transportation, international tourism, and even a surcharge on automobile registration...We need to deal also with the underlying economic, demographic, and political forces. Whether in addressing wasteful consumption and production patterns, population growth, or inefficient energy and transport systems, the right policies always count. In other words, adequate finance without adequate policies will not deliver the full intended results. In fact, the right policies concerning energy pricing and proper natural resource valuations can generate substantial financial resources” (emphasis added).[cxxiii]
III. European Government, Academic and Activist Proposals to Pay for the Needed UN Institutional Reforms to Global Environmental & Oceans Governance
A. Identifying a Need to Establish Global Public Property in ‘the Area’ for New Funding Sources
Commentators note that during the negotiation of UNCLOS III in the 1970’s, it had been hoped that the user fees charged by the UNCLOS’ newly created International Seabed Authority to private parties for the right to engage in deep-sea mining in ‘the Area’ could serve “as a means of raising [much-needed] funds for the UN”.[cxxiv] However, it was soon realized that market forces were going to prevent this opportunity from materializing into a money-making proposition.
UNCLOS, which came into force in 1994, created a new institution for supervising deep-sea mining, the International Seabed Authority. However, little came of initial hopes of a new source of funding for the UN. The International Seabed Authority coordinates the activities of private consortia of firms and levies only very small utilization charges. As there is currently very little activity taking place in this field due to the relative, and in some cases the absolute, decline in price of many mineral resources and unresolved technical problems relating to deep-sea mining, hopes of tapping into new, additional financial resources from this sphere have been dashed for the time being. A major problem as regards these considerations is that they were planned as a tax or duty for financing the UN” (emphasis added). [cxxv]
Following the ‘efficiency review’ of UN programs undertaken during the early 1990’s as part of the then current U.S. and European proposals for United Nations reform, it was concluded that the traditional “pattern of international assistance and other public financial flows, which relie[d] almost completely on unpredictable voluntary contributions, ha[d] become obsolete and  woefully inadequate.”[cxxvi] In order to generate a more steady source of general and special revenues that could be used in the future to respond to what was perceived as “the urgent [environmental] challenges before [them]” (which apparently have still not abated),[cxxvii] UN officials and supporters “call[ed] for a new approach to questions of international public finance.”[cxxviii] Such approach included consideration of an alternative “system of taxes, user fees and other mechanisms that could generate substantial revenues on an automatic rather than a discretionary basis[cxxix]...[and]...be used to fund general and ocean-related development programmes and also the regulation and conservation of ocean resources.”[cxxx] The need to secure supplementary sources of revenue to finance the mounting costs of administrating, overseeing and/or managing the UNEP’s burgeoning multilateral environmental treaty program most likely also provided the impetus behind this movement.
As a solution, UN and European officials determined that there was a need to vest an international institution with the authority, as a global trustee, to establish public property rights in the global oceans commons, to avert an alleged ‘tragedy of the commons’. These public property rights would be divided into varying forms of temporary private economic and legal rights in exchange for monetary consideration. For example, access to OR use of the seabed floor may be sold, leased or rented to private parties (mining, oil and gas companies), subject to public welfare/interest (‘environmental’) considerations. It was hoped that the International Seabed Authority would also manage and oversee such activities to ensure the protection of the marine environment. In addition, there was also a perceived need to establish a regulatory body that would ensure the fairness of that institution’s pricing policies and the protection of the marine environment. The rent so collected would then be used cover the administrative costs of the trustee body.
“If ownership of the seabed existed, then it would be conceivable to buy and sell, or lease it subject to public welfare considerations. An institution that is responsible for managing the seas – and therefore also its mineral resources – in trusteeship could lease out areas subject to environmental considerations. In view of the lack of appropriate property rights to date, it would be quite legitimate here – contrary to utilization of the Earth’s atmosphere – to charge a rent and thereby secure an income for the trustee body. To ensure that the rent charged is appropriate it would make sense to establish a regulatory body responsible for authorizing the pricing proposals of the Seabed Authority while at the same time taking into account environmental issues” (emphasis added). [cxxxi]
Although it is said that the convention’s member states, rather than the UN itself or one of its agencies or institutions, have the last word about how such resources are to be allocated, priced and utilized, the evidence indicates otherwise. The UNCLOS’ International Seabed Authority (ISBA), which “shall have international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes”,[cxxxii] can actually determine the rate and amount of taxes and variable user fees to be automatically assessed against private parties engaged in deep seabed excavation and extraction activities in ‘the Area’. The ISBA “is responsible for licensing and collecting fees for the mining of the deep ocean bed by private firms, and the Enterprise,[cxxxiii] which may itself mine it under a parallel system of seabed mining.”[cxxxiv] This fact was recently confirmed once again by the International Seabed Authority Council:
“[T]he ISBA serves the important [role] of preserving the resources of the deep seabed as the common heritage of mankind...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.” [cxxxv]
However, how would the U.S., let alone, any other national government ever be able to hold the ISBA accountable for showing how the taxes, charges and/or fees raised from activities engaged in by public or private entities in and around ‘the Area’ have actually been employed – i.e., whether they were used for their intended designated purpose(s) or otherwise diverted to unauthorized uses? The UNCLOS expressly provides the ISBA with absolute sovereign immunity,[cxxxvi] which serves to protect the ISBA and its property and assets, within each UN Member territory, from legal process,[cxxxvii] search and seizure[cxxxviii] and “restrictions, regulations, controls and moratoria of any kind”.[cxxxix] Furthermore, the ISBA’s archives, wherever located, are granted the privilege & immunity of nonviolability.[cxl] And, State Party representatives performing official functions on behalf of their governments in connection with their work in the ISBA Assembly, Council and subsidiary organs, as well as, the ISBA executive and its officers and staff, are all immune from legal process.[cxli]
B. Identifying a Need to Establish Global Public Property Beyond ‘the Area’ for New Funding Sources
Thus, the UN bureaucracy and UN intellectuals have long viewed the institutional legal framework established by the UNCLOS as providing a legitimate beginning point for the exploitation and redistribution of the marine environment’s resources held in trust by means of strict environmental regulations as well as tax and user fee assessments. And, in their opinion, the UNCLOS framework can also be used to derive more varied and extensive sources of revenue from the oceans’ living as well as nonliving resources on an automatic rather than a discretionary basis, as long as, the funds thereby collected are placed into the appropriate UN fund to ensure proper ocean governance and preservation of the res communis. [cxlii]
“It is evident...that the sources of revenues that can be derived from the oceans are much more varied and extensive: they can be from the deep ocean bed, from fishing on the high seas, from taxes on trade through freight and over-flight and on passenger traffic, from a system of taxes, user charges, fines and permits for commercial activities in the Southern Ocean and others. These resources can be placed in a general fund for general international use. A significant part, however, should be allocated specifically for ocean governance and development. Activities for these purposes are also myriad: there is a need for regulation, enforcement of the provisions of the Law of the Sea...for research on ocean resources and the way it influences climate and might in the twenty-first century even be used to forecast or modify climate and regional weather patterns.” (emphasis added). [cxliii]
In the view of certain commentators, the notion of res communis would extend as well to patents derived from bio-organisms prospected from the deep sea beds and water columns – i.e., “the Convention [UNCLOS] provides fairly clear grounds for denying patentability for products derived from pure marine scientific research and for those covering organisms themselves collected in the Area.”[cxliv] [cxlv] Similarly, the UNDP considers knowledge as a type of ‘human-made’ global public good (GPG). [cxlvi]
Indeed, back during early 2006, the G77 and China, had sought to define the legal status of marine genetic resources as falling under the ‘common heritage of mankind’ principle rather than the ‘freedom of the high seas’ principle. At the same meeting of the UN General Assembly Working Group on marine biological diversity, the “EU had proposed a new UNCLOS implementation agreement” on fisheries to control deep sea bottom trawling activities, “and the creation of marine protected areas, invoking the Precautionary Principle” to ensure “the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction”, to which at that time, the US had strenuously objected.[cxlvii]Could the US Senate and the administration now guarantee that the US would be as readily able to object to such restrictions in the future were it to become a party to the UNCLOS?
As previously noted, UNCLOS commentators have long referred to these resources as global public goods – ‘GPGs’ that should fall under the international trusteeship of the UN, as previously described. It was therefore not too difficult for UN scholars to extend this reasoning in order for the UN to assume the responsibility of designating public international property rights to deep ocean seabed resources for the public benefit. Pursuant to such a legal construction, it seems to matter not whether the private economic activities for which the user charges, fees and taxes are to be levied cause identifiable environmental harm.
“The Law of the Sea Convention, by designating international property rights to the deep ocean bed, has, in fact, already set this process in motion. Because of the huge volumes of economic activity involving the use of the oceans, international taxes or user fees could mobilize substantial revenues. For instance, a tax of just 0.1 per cent on international trade - 95 per cent of which is through ocean freight - could yield almost $4 billion, based on the level of imports in 1993... New funding mechanisms are especially appropriate for ocean governance and development, since the oceans constitute 75 per cent of the world’s total surface, contain extensive living and non-living resources fisheries, minerals, and the principal means of transport and are part of the global commons. The oceans, moreover, are the main influence on global climate, absorb most of the atmospheric carbon dioxide and substantial wastes and are the object of extensive expenditures.
... An important requirement for levying such charges and fees is the designation of the oceans as common property, a resource belonging to all mankind, or res communis. This is in contradistinction to the notion of res nullius, a thing that belongs to no one, and is therefore ‘up for grabs.’ It is in the latter situation that the tragedy is bound to occur. Designating the oceans as res communis has ample precedents in traditional international law, dating from the time of Grotius, and a basis in the principles of equity. It could underpin a system of charges for exploiting the ocean bed, marine fisheries, navigation and over-flight, and developing the resources of the Southern Ocean” (emphasis added).[cxlviii]
As a result, UN scholars had endeavored to justify these revenue-raising mechanisms as necessary to implement the communitarian CHM and environment-centric sustainable development doctrines on behalf of the global public good. Accordingly, these commentators argued that no sovereign nation or its citizens should be able to hold proprietary economic rights in the global oceans commons and the living and nonliving resources derived therefrom, which includes the exclusive economic zones adjacent to coastal state territorial waters. They believe that, pursuant to the UNCLOS, the scope and extent of any such economic rights, which are to be held in trust by the UN for the benefit of all the world’s peoples, especially those residing in landlocked nations, should be determined equitably consistent with CHM and environment-centric sustainable development.
“The EEZs, which contain the shallower waters and the bulk of the continental shelves of coastal States, contain most of the currently valuable natural resources, both living and non-living...which include hydrocarbons...The EEZs also contain the world’s most productive fisheries...and It is reasonable therefore for the world community to ask the coastal States...[which] do not exercise sovereignty over the EEZs and are forbidden by the principle of res communis from appropriating any part of common property as private property]...to provide a portion of the income they derive from the EEZs to a global authority for international uses, including assistance to land-locked developing countries. Such an arrangement, it may be recalled, was proposed by Nepal in the form of the creation of a ‘Common Heritage’ [Trust] Fund. A ‘gentleman's agreement’ for the sharing of revenues from the EEZs could still be forged and would not contravene any of the sovereign rights of the coastal States” (emphasis added). [cxlix]
To raise revenues, these scholars recommended the following mechanisms; 1) international taxes on traded commodities such as fossil fuels and minerals[cl]; 2) the granting of leases to private parties to exploit certain areas[cli]; and 3) the sale or auction of permits to pollute, which had been successfully used in the United States.[clii]
To be sure, efforts to siphon off resources and tax revenues from within coastal state EEZs for the global public good (GPG) have thus far been largely thwarted by coastal states, including the U.S., concerned about retaining for themselves legal title to the valuable economic resources yet to be discovered and extracted from within their EEZs (see e.g., the Outer Continental Shelf Lands Act[cliii]).[cliv] Yet, international efforts to employ the institution of the International Seabed Authority to exact redistributive license fees, user fees and taxes from coastal states and their industries for undertaking scientific research and exploration and mining and excavation activities in areas adjacent to and beyond national jurisdiction such as in coastal state outer-continental shelf (OCS) areas[clv] and in ‘the Area’ have only increased. Unlike the inner continental shelf of the EEZ, UNCLOS Article 82 which governs OCS exploitation expressly requires revenue-sharing.[clvi] “1 per cent of the value or volume of all production at the site after the first five years of production at that site increased by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter. States shall make payments or contributions in-kind through the International Seabed Authority to other States Parties of the Convention.”[clvii] And, to justify the imposition of such redistributive revenue raising mechanisms, the UNCLOS Secretariat, the UNEP, EU Member States and the environmental activist community have increasingly argued that the International Seabed Authority bears the sole responsibility, as trustee of the global commons and its living and nonliving resources, to preserve the marine environment from damage triggered by such activities.[clviii] [clix]
Apart from these more direct taxes and user fees, experts also recommended the imposition of an additional ‘Pigovian’ system[clx] of corrective user fees and taxes as preventative measures. Consistent with Europe’s hazard-based Precautionary Principle, they would be intended to ensure against potential ‘overuse’ of the global commons.
“In addition to mobilizing revenues, a variety of ‘Pigovian’ or corrective, taxes and user fees are desirable for the management and optimum development of ocean resources. Charging users for the cost (to other potential users) of using the global commons can prevent the overuse of what is wrongly perceived to be a free and inexhaustible resource. Specifically designed long-term or even quasi-perpetual leases on fisheries, for example, could provide an incentive for leaseholders to maintain, rather than deplete, the resource. And ‘permits to pollute’ could be sold at a price that would discourage polluters and at least equal the cost to society of the pollution” (emphasis added).[clxi]
Regarding the ultimate uses for which the collected funds would later be allocated and discharged, UN scholars previously cited the following: 1 “implementation of the rules and programmes of the Law of the Sea Convention”; 2 “the ecologically sound development of marine fisheries”; 3 “the exploitation of the resources of the deep ocean bed, e.g., by the Enterprise,[clxii] for the benefit of all mankind”; 4) “the prevention of marine pollution”; and 5) “further [oceans] research”.[clxiii] In the end, UN scholars were convinced that such financial measures “could be implemented within the existing international political framework by means of conventions, or multinational treaties.”[clxiv] In their estimation, “The establishment of a broad system of international taxation to fund these efforts seemed basically a question of time - elements of it [had then] already [been put] in[to] place.” [clxv] They then referred to the value-added tax regime that was already in practice within the European Community as the strongest precedent in favor of such an outcome.[clxvi]
It is also interesting to note that, during the 1990’s (i.e, during the two Clinton-Gore administrations), intergovernmental organizations such as the OECD had discounted the current economic costs of environmental protection relative to its future projected benefits. Arguably, this contributed to the belief that the imposition of environmental ‘user fees’ upon developed country industries to finance sustainable development would not place a drag on national economies.
“Although there is no adequate or universally applicable method for the comparison of the benefits and costs associated with the maintenance of a clean environment, the costs for such management seem, in most cases, to be below the total benefits derived from a clean environment. Environmental management costs could be met through a combination of financial sources and economic and fiscal measures, for example, by use of “user fees” (emphasis added). [clxvii]
In one report, for example, the OECD recommended levying user fees upon dischargers of effluents rather than issuing tradable discharge permits. It favored user fees because permits “do not take into account [that the] discharges from one...permitted source...location could be more harmful than those from another.” It also reasoned that user charges could be employed to discourage “people/organizations [from] moving certain residential, commercial or industrial activities to the coastal zone.”[clxviii] The OECD report did not seem too concerned with the economic costs of such initiatives which were believed to be, for the most part, ‘revenue-neutral’.
“All charges would contribute toward the cost of environmental management. Of course, some [economic] development would need to be prohibited outright as their impacts would be unacceptable.” [clxix]
The OECD report, furthermore appeared to take comfort in the fact that user fees have already been ‘successfully’ imposed in the tourism sector, which encouraged it to recommend that global user fees be expanded to other industries.
“Certain specific user fees are already collected. Tourist taxes are included in hotel and restaurant bills, and nautical taxes are collected from pleasure boats. To date, however, only a small fraction is set aside for environmental management. This approach could be expanded to the fees and taxes collected from the users of non-renewable, finite or scarce natural resources. For example, the imposition of a user fee on oil tankers and the like for the free use of the oceans as a transport facility may merit further consideration. The fee should then be used for oil monitoring and control of potentially polluting ships. Restructuring of ship charges, re: port fees, reception facilities, adequate salvage capacity, training, emergency preparedness and response, are all being examined by the Members of the International Maritime Organisation (IMO)” (emphasis added).[clxx]
In the end, this OECD report drew the following conclusion: that the automatic rather than discretionary nature of user fees, pollution charges, taxes, pricing policies, and fiscal incentives, when combined with appropriate environmental regulations, “provided a more effective vehicle” for financing global environmental protection than other fiscal or economic mechanisms. [clxxi]
During 2000, the NGO Steering Committee of the United Nations Committee on Sustainable Development (CSD) also engaged in strategy sessions concerning how to help secure new sources of UN funding. They focused on how they might enhance the international system of taxation for purposes of protecting the global environmental commons and achieving sustainable development.
“In an ideal world, we would all be concerned with the state of the global commons to create and sustain a livable world. New forms of resource generation including taxation and tax shifting are needed, which might be collected nationally but which would be available for collective use. In this regard, we must better access resources that are available for sustainable development. Many of these ideas relate to other global objectives; the recommendations here concentrate primarily on ways of raising money for sustainable development. Obviously, a new tax or revenue stream should be cheap, easy to collect, and difficult to evade. It should be neutral in its impact on market incentives and on income distribution unless it is deliberately designed (like tobacco taxation or progressive income tax, for example) to influence consumption or to redistribute wealth. Priority should be given to a tax which discourages inappropriate consumption, excessive control of resources, environmentally damaging activities and social inequities. Most of the ideas for global taxation fall into three groups. The first group consists of various forms of taxation on financial transactions. As short-term transactions have proven to have destabilizing effects not fostering sustainable development, the suggestions below should be endorsed at this CSD, with a concrete time frame for an international implementation. The second group tries to exploit a hitherto-untapped source of revenue which no nation-state already "owns". The most-discussed example of these "global commons" is deep-sea mineral mining outside territorial waters. The third consists of attempts to get sovereign states to dedicate some part of their present national tax base to global purposes, in the same way that the European Union has an automatic right to part of the yield of VAT in member countries” (emphasis added). [clxxii]
The CSD NGO Finance Caucus paper ultimately recommended 10 different possible sources of tax revenue: 1) Tobin-like taxes on financial transactions; 2) commodity trading taxes on fuels, etc.; 3) arms taxes; 4) airline taxes on international flights (which are presently being imposed in France to pay for HIV/AIDS treatment); 5) deep sea mining royalties; 6) satellite ‘parking’ charges; 7) international waters fishing charges; 8) international television & radio charges in OECD countries; 9) pollution charges; and 10) pollution permit trading taxes. [clxxiii]
Interestingly, an earlier draft version of this paper revealed the NGO community’s frustration with being unable to secure the creation of an international taxation regime through the UNCLOS for these purposes, and with the need to compromise to achieve some level of success.
“Recent attempts at global taxation (the best example is the Law of the Sea Convention) suggests that it will be very hard - but perhaps not impossible - to reach some compromise” (emphasis added).[clxxiv] In addition the draft reflected the NGO community’s belief in the power of wealth redistribution: “nation-states...should pay into international funds to do the things which are best done collectively; and the richer ones should subsidise the poorer countries.” [clxxv] The earlier draft also reflects a longer list of revenue sources (20) apparently “taken from Overseas Development Institute Briefing Paper and UNDP Human Development Report.” [clxxvi]
Lastly, a 2000 report issued by the German Advisory Council on Global Change (WBGU), an independent, scientific body established by the German federal government in 1992 (in preparation for the Rio Earth Summit) to analyze and report global environment and development problems,[clxxvii] discussed the need to solve the UN funding problem in order to address the growing ‘scarcity of marine resources’ arising, in part, from land-based sources of effluents.
“With regard to financing such measures the [German Advisory] Council advocates reviewing which uses of the marine environment might best contribute to underscoring the increasing scarcity of marine resources through the introduction of user charges. This particularly concerns deep-sea mining, whose importance is considered minimal at present, but will increase in the future...The oceans of the world are a common resource par excellence, even if the recent regime of Exclusive Economic Zones has in some ways led to property rights to resources being allocated or appropriated since the 1970s. There is still a need for action. The following forms of utilization require regulation: Use of resources on or in the seabed; use of fish stocks; use of the sea for transportation and for installations (such as drilling rigs); use of the sea for waste disposal. In all these cases there is a problem of financing. This is particularly relevant with regard to combating the pollution problem that is largely the result of river-borne substances entering the oceans of the world. This problem can only be combated by building purification plants in the catchment areas of major rivers and by modifying production processes and product systems. In places where industrial nations are responsible for river effluent one can assume that the riparian states have the necessary technical know-how and are also in a position to finance solutions to the problems themselves. The situation in developing countries, on the other hand, is quite different. There, both technology and financial transfers are needed. In these cases the first question that arises is how to raise the necessary funds for financing measures to reduce effluent in the developing countries. At the same time, there is the question of how funds can be used most efficiently in the countries concerned” (emphasis added). [clxxviii]
IV. Germany/France/EU Propose Environmental User Fees & Taxes to Finance UNEP Reforms Advancing UNCLOS CHM/Sustainable Development Objectives
As previously discussed, UN and European officials and scholars have long deemed necessary the designation of a global commons area and the creation of corresponding public property rights regime in the world’s oceans and atmosphere, i.e., a res communis. In their opinion, this would not only protect the global environment, but also serve as a source of future UN revenue to pay for the ambitious environmental, social and development projects and/or activities in which it engages. In addition, Part III.B of this paper previously reviewed the various types of financial mechanisms that the UN, as trustee/fiduciary for current and future human generations, could employ to achieve those goals. According to such persons, the UN could legally impose fees, taxes and other charges (‘rents’) on private parties and/or national governmental entities in exchange for granting them access to and/or use of those global public goods - common areas.
A number of the studies performed since the 1990’s carry forward and elaborate upon this UN/EU institutional thinking. Several of those reports even recommend specific EU regional and member state models for levying environmental user fees, environmental taxes and/or pollution credits. Curiously, they each seem to refer to these centralized governmental funding measures/mechanisms as market-based instruments.
Consistent with the UN and other studies already noted, a 2002 German Advisory Council (WBGC) report suggests that a broad strategy for imposing global user fees and/or taxes to protect ‘global public goods’ against overuse (GPGs) has long lain dormant at the UN and EU, and is now being dusted off for ‘prime time’.
“The concept of user charges and the issue of the additionality of new financial resources are also to be seen in connection with the current debate on global public goods (GPGs). The notion of GPGs has accompanied global environmental policy from the very outset. At the international environmental conferences of the 1980s and 1990s a number of declarations made reference to the common, but nationally differentiated responsibility of the community of states to preserve global environmental goods. Since the publication of the much-discussed work by UNDP [United Nations Development Program], the concept of GPGs has gained new impetus and is also playing an important role in the preparatory process for the UNFfD [United Nations International Conference on Financing for Development which previously took place during March 2002]. The UNDP study distinguishes between three categories of GPGs: 1. natural GPGs (e.g. the atmosphere); 2. human-made GPGs (e.g. knowledge); and 3. GPGs that are the outcome of political action (e.g. the stability of international financial markets)... The Council’s approach of levying user charges is limited to the natural global commons. The approach largely tallies with the understanding of natural GPGs developed in the UNDP study. The political challenge in managing natural global common resources is to agree rules at international level for preventing the overexploitation of these resources” (emphasis added). [clxxix]
A. Environmental User Fees
The German Advisory Council, for example, strongly favors UN resort to environmental ‘user fees’ to raise revenues and to ensure against overuse of, and thus harm to, the global air and ocean commons. They note how user fees provide an advantage over other charges because they require significantly less government involvement and practically no budgetary appropriations.
“International airspace and the high seas are natural global common goods for which property rights are insufficiently defined. The international community of states is therefore responsible for their conservation. Due to prevailing gaps in international regulatory regimes, they are overexploited and user-related environmental damage occurs. For instance, the CO2 emissions of international aviation and ocean shipping are not included in national emissions inventories and thus are not subject to the quantitative commitments of the Kyoto Protocol. This regulatory gap could be closed by levying user charges” (emphasis added).[clxxx]
“The Advisory Council recommends...levying utilisation fees for resources belonging to the global community, and stepping up integration of both private and public financing mechanisms....The linking of private market price mechanisms to the use of natural resources is in many instances the decisive factor in conscientious resource management. These mechanisms have their limits, however, due to the non-existence of property rights. Numerous natural assets – such as international air space, the high seas, or space – are ‘open-access’ resources and as such constitute resources belonging to the global community as a whole. Since it is impossible to put a price on such resources, only placing them within a common global trusteeship can prevent their overexploitation for exclusive use. In the Earth Funding system, the levying of user charges for the tapping of such global community resources provides an important alternative to appropriations from government budgets for financing global environment and development policy” (emphasis added). [clxxxi]
“In the Earth Funding system, the levying of user charges for the tapping of such global community resources provides an important alternative to contributions from government budgets for financing global environment and development policy” (emphasis added). [clxxxii]
According to the Council, user levies can be graded in accordance with environmental impact criteria so that a direct relationship is established between the use of the oceans and the charge to be paid. By providing ship-owners, deep-sea miners, aviators, etc. with a menu of charges based on their different uses of the oceans or atmosphere, they have multiple opportunities to reduce their environmental damage to the commons. Although their improved environmental behavior may not satisfy all environmental goals, considering also the effect of land-based sources of pollution/emissions, the fiscal function of the user charges still remains. In other words, the charges earned may be deployed to support shipyards and shipping companies in their efforts to meet more environmentally friendly standards. Alternatively, they may be disbursed to restore the marine environment damaged by the shipping activities.[clxxxiii] The Council report clearly sets forth a blueprint for a UN-administered global oceans and airspace user fee to be levied on all ships and aircraft that call at coastal state ports (including airports) in industrialized nations.[clxxxiv]
The German Advisory Council report also explains what environmental ‘user’ fees are in economic and behavioral terms.
“...The term ‘user charge’ is associated in economics, specifically in public finance, with a financing instrument that has the following characteristics: The use of a certain asset or right is linked to the payment of a sum of money; The charge is a payment for the conferral of the right; In contrast to the complete transferral of a right, use rights are viewed exclusively as a subset of property rights, i.e. the property rights are retained by the party that confers the right to use; Rights to use can be conferred to individuals, but also to groups and states... If this concept of user charges is transferred to global environmental problems, it is expedient to raise a charge for the use of global common goods. Through the payment that has to be made, users can perceive the scarcity of a good and the costs of its provision. User charges are to be understood as contributions to financing the provision of global common goods... The concept of user charges is thus distinct from taxation, which makes no direct connection between the payment of a tax and the service to be financed. The special feature of the concept of global user charges is that it can both induce incentive effects to reduce environmental pressure and mobilize additional financial resources to promote environment and development policy goals. The incentive effects are achieved by charging the users of a global common good for the use-related environmental costs” (emphasis added). [clxxxv]
“...[W]ithin the concept of user charges for environmental assets or natural resources, the fiscal effect is at least as important as the incentive purpose. The aim is not only to ensure via the economic incentive function that the production and consumption of environmentally harmful goods or services is kept to the societally desired level. Above and beyond this, the concept of user charges envisages that the state or global institutions retain the revenue generated and earmark it for measures to conserve or restore the quality of public goods such as the climate... The concept of user charges has strong links to environmental policy. Thus the rate of the charge should depend upon the use-related environmental damage and upon the financing required for its ‘repair’. By earmarking revenue for global environment and development policy measures, user charges also become a financing instrument for [supranational] global sustainability” (emphasis added). [clxxxvi]
“...User charges are one instrument within a broad range of possible financing instruments. Consequently, meeting the financing requirements of global sustainability policy beyond the areas discussed in the present report makes it necessary both to examine other novel financing instruments – including global taxes – and to strengthen existing sources of development finance such as ODA.” [clxxxvii]
Also, the German Ecologic Institute for International and European Environmental Policy (Ecologic) issued a report in 2005 that reflects its belief in the power of user fees to prevent global public environmental goods from being irreparably over-used.[clxxxviii]
“International airspace and international waters constitute global common environmental goods, the use and consumption of which does not fall under the jurisdiction of any national sovereign body. These goods are over-used because the laws governing access to them are under-developed. Increasingly, two environmentally-intensive forms of use – namely the airline and shipping industries – account for a significant proportion of such exploitation... Aviation constitutes the fasting growing source of greenhouse gas emissions. As for the latter, increased international shipping is causing considerable environmental damage through the exchange of ballast water plus contamination caused by the discharge of waste water, sundry waste and other pollutants. Moreover, both industries emit air pollutants, in particular sulphur dioxide and nitrous oxides, both of which are known to cause subsequent adverse effects, including, for instance, acid rain.” [clxxxix]
While the report’s authors prefer, on public (economic) efficiency grounds, the imposition of global airline and shipping ‘user’ fees over ‘taxes’ and conventional ‘command and control’ measures to promote more environmentally friendly modes of global transportation, they reluctantly admit that the use of such ‘enlightened’ mechanisms may have negative economic and social repercussions.
“[T]he conventional “command and control” approach to tackling environmental problems has not proven fully effective at surmounting the user problems associated with aviation and shipping. For this reason, user fees – broadly speaking, charges imposed on the use of international airspace and waters – have been proposed at the national, European and international levels. By introducing a duty to compensate the consequences of such use financially, the environmental costs associated with aviation and shipping could be allocated to the respective users of those forms of transportation, and, thereby, factored into the price of the activities. Such a system of user charges would introduce economic incentives as well as generate revenue. On the one hand, in rendering the affected transportation and airline companies economically less advantageous, user charges create incentives to switch to more environmentally friendly modes of transport or to eschew transportation altogether” (emphasis added).[cxc]
Yet, this has not prevented them from trying to conceive of the most ‘perfect’ (synchronous and balanced) design for environmental user fees that can satisfy European Community legal and policy goals.
“Depending on their design, user charges levied on global environmental goods can be based on a variety of provisions in the Community primary law. Generally, product-based user charges can be based on Article 93 of the Treaty Establishing the European Community (EC Treaty), requiring a unanimous decision by the European Council, since they are relevant to the European Common Market – to the extent they are designed to harmonise indirect taxes – whereas other conceivable forms of user charges centred on environmental policy will generally be based on Article 175 of the EC Treaty. As a rule, however, user charges will have their substantive focus in the area of environmental policy and thus be based Article 175 EC Treaty. If the user charge is designed as a fee imposed on a service or benefit rendered, the prerequisites for applying Paragraph 2 of Article 175 will not usually be fulfilled and Paragraph 1 of Article 175 EC Treaty (co–decision procedure) be the correct legal basis. Paragraph 1 of Article 71 of the European Union Treaty may provide a possible legal basis where an inseparable link between a particular user charge and the conceptual aims of Community transport policy exists” (emphasis added).[cxci]
Consequently, the world can now see how the European Union, inspired by the new monism of environmentalism led by an enlightened Germany and France, intends to utilize a newly reformed UNEP, and/or a newly created United Nations Environmental Organization and strict regulatory enforcement of the UNCLOS, to establish a supranational global governance toll-way to levy charges against American shipping and aviation companies for their ‘use’ of the oceans, the air above and the seabed below, which may never be used as intended.
The observations of two American commentators, in this regard, should not be ignored. They warn how a user fee may be quickly transformed, behind closed doors, into a tax. This occurs if the monies are used to pay for something other than the service being used. [cxcii]
“When someone chooses to use a government service and must pay for it, he's paying a user fee. Furthermore, what he pays should cover the cost of the service he's receiving; if it also pays for something he isn't getting or doesn't want, then he's paying both a user fee and a tax. Taxes differ from user fees in that paying them isn't a matter of choice and what you pay is not tied to what you get” (emphasis added). [cxciii]
“Politicians and bureaucrats are notorious for manufacturing euphemisms—clever but deceptive substitutes for what they really mean but don’t want to admit. That’s how the phrase ‘revenue enhancement’ entered the vocabulary. Some of our courageous friends in government couldn’t bring themselves to say ‘tax hike.’ At all levels of government, a bipartisan effort to impose new or higher taxes and mislabel them as seemingly less onerous “user fees” provides another example. Sometimes, a user fee is indeed a user fee. Other times, it’s not that at all. Instead, it’s a tax hike disguised by a misnomer” (emphasis added). [cxciv]
Hence, Americans should be leery about this user fee/taxation dichotomy and alert to the real possibility that when UN and EU officials speak officially about user fees they may actually be referring to hidden UN sustainable development global oceans and atmosphere taxes!
B. Environmental Direct and Indirect Taxes
The 2002 German Advisory Council’s report noted previously also recognized how individual-based environmental user fees could be confused with more societal-wide Pigouvian taxes that endeavor to internalize all negative environmental (pollution) effects. According to the report, the latter are less concerned with specific behaviors and less revenue-driven than the former.
“The concept of user charges needs to be distinguished clearly from approaches in welfare economics to internalize external effects, for instance through a ‘Pigouvian tax’. Such internalization approaches seek – in highly simplified terms – to impose a charge (e.g. by taxation) upon the production or use of these resources with the aim of integrating all social costs into the cost calculation of producers or users. The aim is thus to bring about a level of use or pollution that is optimal in terms of welfare economics, the transgression of which would cause society more damage (e.g. poorer air quality) than benefit (e.g. additional income). Internalization in the narrower sense generates state revenue, but this is considered as no more than an unintended side effect by environmental economics and should ideally – in the view of economic allocation theory – even be returned to taxpayers on a per-capita basis. To sum up: The neoclassical internalization concept is all about creating an incentive effect, while the fiscal effect is regarded unimportant if not undesired.” [cxcv]
Other commentators have described the intent behind Pigouvian taxes more directly:
“Pigouvian taxes are designed to correct what economists call ‘market failures’ or ‘negative externalities’ that impose spillover costs on society.” [cxcvi] Notwithstanding these innocuous characterizations of a Pigouvian tax as an instrument concerned with other than specific behaviors, it is arguable nevertheless, that specific behavior modification is precisely its goal! In fact, such taxes strongly resemble what were previously referred to within the United States during the prohibition era as ‘sin’ or ‘sumptuary’ taxes.[cxcvii]
“The term sumptuary taxation has gone out of fashion. An earlier generation of writers used the term to categorize taxes imposed for moral or religious reasons. Contemporary economists would describe a tax intended to discourage consumption of a specific commodity as adjusting for a negative externality. Politicians and journalists might use the term ‘sin taxes’... Both advocates of externality-adjusting excise taxes and advocates of sumptuary taxes would agree that the revenue generated by the tax is not a primary objective. Similarly, they would agree that the distribution of either tax among taxpayers classified by income or consumption levels is largely irrelevant. For both, the object of the tax is to get the gross-of-tax price ‘right’...Sumptuary taxes set "too high" verge upon prohibition through the tax system rather than by regulation. Because the social costs of prohibition can be significant-for example, the costs of controlling smuggling and illicit domestic production and distribution-a sumptuary tax rate that is in some sense optimal is not a rate that minimizes consumption.” [cxcviii]
The problem with these kinds of taxes is that it is quite challenging to compile data and estimate the social costs that such taxes are intended to offset, which may vary widely. Also, should policymakers overestimate the cost of externalities and implement an excessive Pigouvian environmental tax, the level of total social welfare loss could be significant, let alone, difficult to determine.[cxcix]
While the rationale behind Pigouvian taxes might not appeal to many Americans, including policymakers, it is completely in line with Brussels and EU member state thinking. “It is increasingly clear...that [European] countries are recognizing the power of tax restructuring to reach environmental goals.”[cc] Germany, United Kingdom, The Netherlands, Finland and Sweden, for example, are rethinking the ways in which to ‘legitimately’ tax, on a national and regional level, the ambient air and water that we all use to survive and prosper – i.e. the ‘commons’.
European government enthusiasm for environmental sustainable development taxation was recently on display during a March 2007 Tax Forum convened in Brussels, Belgium. According to Jan Kees de Jager, the Dutch State Secretary for Finance, The Netherlands are quite experienced in the ‘art’ of using environmental taxation to achieve social policy goals.
“We led the way in Europe in introducing a tax on electricity and natural gas, and we levy various other environmental taxes. Eleven per cent of total tax revenue can now be said to be ‘green’. A large part of this revenue comes from excise duties on fuels, car taxes and tax on electricity and natural gas. We also have a number of other environmental taxes: taxes on groundwater, mains water and the dumping of waste. My government wants to do more. So we will be introducing taxes on air traffic. And, also on packaging materials. We will also be raising excise duties on fuels and stepping up the environmental differentiation of car taxes. As a general principle, the new government wants to build environmental cost into market prices. Taxation is one way of doing this...[T]axation as an instrument to promote a more sustainable society is firmly on the European agenda – as underlined by this Tax Forum. Given that Europe’s economies are increasingly interconnected, it is important that we act together on this issue.” [cci]
Another commentator, the EU Commissioner for Taxation and Customs Union,[ccii] opined that environmental taxes (which include energy, transport and pollution/resource taxes)[cciii] are needed to correct for the failure of markets to address the global environmental crisis resulting from humankind’s over-use of public environmental goods.
“The main threats to the long-term sustainability of our civilisation are energy and climate change. I would like to recall that less than two weeks ago the Heads of State and Government of the 27 EU Member States endorsed a very ambitious plan for an EU integrated climate change and energy agenda. Taxation is one of the instruments that come into play in this context. The need to enhance the sustainability of our economies arises from the failure of market forces to address properly the entire costs and benefits of certain activities. Since they are not reflected in the market price we do not take account of them in our consumer and production decisions. The best way to correct this kind of market failure is to use market based instruments. Taxation is a traditional and well known tool of this kind...[This is] the tax policy strategy of the European Commission and furthermore [hopefully] it will promote the cooperation between the European Union and other international players who face the same global challenges” (emphasis added).[cciv]
This speaker’s endorsement of environmental taxation is not surprising given his political background and market inexperience. He previously served as a “Deputy Head of the Department for International Relations, Hungarian Socialist Workers’ Party”, the Head of the Parliamentary Faction of the Hungarian Socialist Party, Co-Chairman of the Central and East European Committee of the Socialist International, Vice Chairman of the Socialist International, and Chairman of the Hungarian Socialist Party.[ccv] Also, his view that taxation constitutes a traditional and well known market-based instrument (‘MBI’) used to correct market failures is shared by the European Commission – indeed, it is its official position! As the Commission’s recently issued ‘Green Paper’ on market-based instruments for environmental purposes reflects, [ccvi] environmental taxes, user fees, pollution credits and other charges are all deemed market-based mechanisms that may be employed to correct market failures!
“Market failure refers to a situation in which markets are either entirely lacking (e.g. environmental assets having the nature of public goods) or do not sufficiently account for the ‘true’ or social cost of economic activity. Public intervention is then justified to correct these failures and, unlike regulatory or administrative approaches, MBIs have the advantage of using market signals to address the market failures...At the EU level, the most commonly used market-based instruments are taxes, charges and tradable permit systems. [ccvii]
Notwithstanding the rah-rah tenor of this forum, however, what is most likely driving this renewed EU governmental interest in environmental taxes is a simple regional revenue shortfall. In other words, the ‘green’ governments of Europe have been unable to escape the fact that they must continue to pay for their ambitious utopian projects which tend to be other than revenue-neutral.[ccviii] [ccix] A description of these initiatives, through which centralized EU governmental institutions seek to reshape human conduct via culture, education and legislation,[ccx] [ccxi] follows:
“The role of taxation in sustainable development covers many aspects. The most commonly discussed ones are the use of taxes or tax incentives designed to encourage or discourage specific behaviour that affect economic, environmental or social sustainability. However, there is a more fundamental, although less often advocated, dimension to this issue. Taxation is essential to sustainable development in that it provides governments with the necessary finance to effectively implement development policies. Objectives in terms of improving infrastructures, education, health, or environmental protection, cannot be achieved at no cost” emphasis added). [ccxii]
“The EU is a leading force in the world in taking action on environmental sustainability and, in particular, on climate change. This has been confirmed recently through the adoption of the energy and climate policy package1 as endorsed by the Spring European Council in which the EU repeated its commitment to addressing climate change internally and on an international scale, to promoting environmental sustainability, to reducing dependence on external resources and to ensuring the competitiveness of European economies. In addition, halting loss of biodiversity, preserving natural resources that are under pressure and protecting public health also require urgent action. Without public intervention and the strong commitment of all actors, these ambitious objectives cannot be reached” (emphasis added).[ccxiii]
“As well as discouraging environmentally damaging behaviour through taxation, Member States may also use fiscal incentives such as subsidies to encourage green behaviour, facilitate innovation, research and development, provided that public resources are first generated in some other way (e.g. by taxing environmentally damaging behaviour) or that spending is reduced (e.g. by removing environmentally harmful subsidies). This approach is particularly relevant in the context of the ambitious objectives of the climate and energy agenda of the EU, notably to achieve the reduction of greenhouse gas emissions by at least 20% by 2020, the binding target of 20% renewables of energy production by 2020, and the target of 10% biofuels” (emphasis added). [ccxiv]
It is no wonder then that the Dutch Secretary for Finance actually declared in his introductory remarks that, “It is a pleasure for me to speak to you today on a subject that is close to my heart, using tax as a means to promote a more sustainable society” (emphasis added).[ccxv]
According to a recently issued 2007 Eurostat report,
“The introduction of environmental tax reforms gained increasing support during the 1990s. The basic idea was that an increase in environmental taxes constituted an attractive instrument to not only reduce the damage wrought by human activities to the environment, but also to achieve another objective, that of reducing taxes on labour, which has proven elusive. At the same time, care had to be taken to protect producers from any negative effect on competitiveness arising from increases in the cost of inputs, most particularly energy. Offsetting these cost increases is usually possible and has indeed been a key feature of the 'green' tax reforms that many Member States have introduced over the last decade. Among others, Denmark, Germany, Italy, the Netherlands, Austria, Sweden, Finland and the UK have introduced elements of environmental taxation. Some new Member states, too, have followed suit; one example is Hungary, where a law introducing a new environmental tax entered into force already in September 1995... Despite this interest, environmental tax revenues have not been growing significantly in recent years, at least in the old Member States. [ccxvi]
At this juncture, US policymakers are cautioned to take note of what European policymakers have already discovered - namely, that a temporary increase in environmental taxes collected incident to triggering reforms in industry and consumer behavior that yield greater environmental protection may likely result in lower environmental tax revenues over the longer term.
“[I]f green taxes act as an efficient disincentive, they will over time reduce the recourse to environmentally harmful goods and thereby erode the tax base, leading to a gradual fall in revenue. In addition, if tax breaks on environmentally friendly products or processes are granted, the same objective -protecting the environment- results in lower tax revenues. In either case we would witness a falling tax-to-GDP ratio for environmental taxes despite an increase in environmental protection” (emphasis added). [ccxvii]
Nevertheless, this finding has not dampened EU government interest in searching for ways in which to use environmental taxes to shift the EU revenue burden from taxes on labor to taxes on industry and other sources of environmentally damaging economic activities – all to achieve environment-centric sustainable development.
“The EU is strongly committed towards ensuring environmentally sustainable development as well as promoting the Growth and Jobs agenda. An environmental tax reform (ETR) shifting the tax burden from welfare-negative taxes, (e.g. on labour), to welfare-positive taxes, (e.g. on environmentally damaging activities, such as resource use or pollution) can be a win-win option to address both environmental and employment issues18. At the same time, a long term tax shift will require relatively stable revenues from the environment related tax base.” [ccxviii]
Therefore, in addition to imposing strict national and regional behavior-changing environmental regulations, governments will likely need to rely on economic policy instruments other than environmental taxes, such as ‘user fees and pollution credits, the revenues from which are not ‘booked’ as tax revenues. This way, they can achieve their stated environmental protection objectives without arousing public suspicion about the true cost of doing so.[ccxix] This recognition was likely behind the prior recommendations contained within the European Community’s 2003 6th Environmental Action Programme to broaden environmental policy instruments beyond environmental legislation and taxation.[ccxx] And, such revenues will likely need to be raised at the global as well as the national and regional levels, as a matter of equity, and in order to ‘level the global economic playing field’, via the expanding multilateral environmental regulatory treaty network with the UNCLOS at its center.
If the recent UN meeting convened in Bali Indonesia to discuss a post-2012 successor to the Kyoto Protocol is any indication, it would appear that oceans (UNCLOS) and atmosphere (Kyoto/UNFCCC) environmental policy at the international and domestic levels has now been firmly joined. And it is likely to result in some combination of new Precautionary Principle based regulations, environmental taxes and/or user fees.[ccxxi]
A multilateral (global) rather than a purely European regional approach to environmental taxation, especially with respect to carbon-emitting goods entering into the EU from non-European nations, would not only further the EU and UN sustainable development programs and reduce the costs to EU regional industries, but would also help the EU to avoid legal challenges at the WTO.[ccxxii] Apparently, the proposed EU carbon tax plan had caused a split among EU member states during 2008, with former EU Trade Commissioner Peter Mandelson calling the proposed EU carbon emission tax ‘dead’, while EU Environment Commissioner Stavros Dimas saying it was still being debated.[ccxxiii]
During May 2009, the Government of Denmark floated the use of a global carbon tax, modeled after the EU aviation carbon tax, at the International Maritime Organization (IMO)’s Marine Environment Protection Committee (MEPC’s) 59th sessional meeting. The Danish proposal, which targeted the shipping industry, was described as “amount[ing] to the world’s first universal tax – a maritime greenhouse gas tax on bunker fuel”. [ccxxiv]
“The ambitious proposal, to be discussed at MEPC 59 in July, would entail a new convention and the establishment of a fund administrator, who would control billions of dollars. The proposal is part of an attempt to create a worldwide scheme for shipping, thereby avoiding the need for regional schemes, such as the one the aviation sector is facing in the European Union. Details of the proposal include an obligation on all ships to buy fuel at a registered bunker fuel supplier. All bunker fuel suppliers would undergo ‘mandatory registration’ and would have to ‘collect and transfer greenhouse gas contributions to the International GHG fund administrator’. The fund manager would allocate revenues for ‘mitigation and adaptation activities in developing countries’.
…Money should also be targeted at research and development projects for efficient ship design. ‘The International GHG Fund provides a simple mechanism that will result in significant reductions in global GHG emissions primarily by funding mitigation and adaptation activities,’ the proposal said.The fund is not, technically speaking, a tax on shipping, because the money collected ‘would by nature cater for offsetting some of the negative effects of international shipping on the climate by allocating revenues to specific international purposes with a view to addressing climate change’ and would not pass through national finance ministries.” [ccxxv]
Although the Denmark proposal was subsequently discussed at some length during the December 2009 Copenhagen Climate Change Conference, no action was taken on it.
“A UN tax on shipping was discussed at some length but did not materialise. During negotiations, the taxation of maritime bunkers in general became a bargaining point for achieving a climate deal. This issue is now of great concern to the shipping industry as it would not mean offsetting, as with a Compensation Fund in IMO, but a regular tax on all bunkers consumed by ships. Such a tax would generate revenue that in practice could buy enough allowances to claim that shipping was carbon neutral if the revenue was used on offsetting and not on the general financial needs of governments. No targets were decided but some ideas were discussed regarding shipping. The only concrete figure presented was apparently the EU proposal for shipping to reduce GHG emissions by 20% in 2020, with 2005 as base year.” [ccxxvi]
Since then, the Government of the United Kingdom has taken up the cause of indirectly taxing the shipping industry for polluting the global air and oceans commons. It recently called for the extension of the EU emissions trading regime to the global shipping industry were the IMO to fail in enacting its own international rules to address ship-based GHGs.
“Progress within the IMO on tackling rising shipping GHG emissions has been slow in the 13 years since the signing of the Kyoto Protocol. The main sticking point appears to be disagreement between developing countries (notably Brazil, India, China and South Africa) and the developed world (lead by the likes of the UK, Germany, France, Belgium, Sweden and Norway) over whether emissions reduction targets and market based instruments – as advocated by the protocol and including emissions trading – are appropriate solutions…In July 2009, the Marine Environment Protection Committee (MEPC), the environmental policy decision-making body of the IMO, agreed on a workplan for discussion on the applicability of market based instruments to reducing global shipping emissions. This could lead to the production of a strategy report for cutting GHG emissions by 2011, including identification of possible future steps. Because the IMO process will not deliver an agreed solution for a number of years, it is understood that a number of interim and voluntary technical and operational measures to reduce GHG emissions are being trialled.”
…It is more likely that the EU will take action. The revised EU emission trading system (EU ETS) Directive requires the European Commission to consider the inclusion of shipping in the scheme from 2013 if the IMO process is not complete by 2012. Although this could potentially address only emissions from ships arriving at or departing from EU ports, approximately 31 per cent of global shipping emissions1 could be covered (6.1 per cent of total EU 27 GHG emissions). The new climate change commissioner, Connie Hedegaard, has indicated her willingness to tackle the problem if the IMO process does not deliver in time, while European Commission president, Jose Manuel Barroso has suggested that 'decarbonising' the transport sector is a priority for his second term in office. A report prepared for the European Commission by environmental consultancy CE Delft and published in mid-February examined four policy options and came out in favour of including shipping emissions in the EU ETS in preference to the other options (carbon taxation, efficiency standards or a baseline credit system).” [ccxxvii]
The UK initiative followed up the previous efforts of Norway, Germany and France, whose governments had previously submitted an emissions trading - ETS – proposal at the IMO[ccxxviii] that was later considered during the December 2009 Copenhagen Climate Change Conference.
As of the 60th sessional meeting convened by the IMO’s Marine Environment Protection Committee during March 2010, the IMO was still considering “the proposed mandatory application of technical and operational measures designed to regulate and reduce emissions of greenhouse gases (GHGs) from international shipping.”[ccxxix] Apparently, the IMO MEPC’s slow movement to adopt a particular initiative was triggered, in part, by the World Shipping Council (WSC)’s introduction, during the MEPC’s January 2010 59th sessional meetings of popular “proposals that seek to focus on and reward vessel efficiency…[wherein] the ship owner or operator can choose the action or actions that are most appropriate for meeting the standards articulated in the agreement”.[ccxxx] The WSC’s proposal echoed a prior proposal of the U.S. and Japanese Governments,[ccxxxi] which “suggest[ed] using an efficiency index standard and allowing the trade of efficiency credits to meet those standards”.[ccxxxii] Arguably, as the result of the evolving competition between these three (shipping carbon tax/shipping ETS regime/vessel energy efficiency design index) proposals, the MEPC had managed to prepare only a “draft text on mandatory requirements for the Energy Efficiency Design Index (EEDI) for new vessels and on the Ship Energy Efficiency Management Plan (SEEMP) for all ships in operation” by the time of the March 2010 60th sessional meeting.[ccxxxiii]
A review of the viability and enforceability of a global commons oceans/atmosphere greenhouse gas emissions tax was recently undertaken by the nonprofit U.S. Florida-based Center for Tankship Excellence, which compared and contrasted all three of the proposals discussed above: a) a carbon based bunkers tax; b) a cap and trade regime under the name, Emission Trading System (ETS) for International Shipping; and c) mandated “energy efficiency” referred to as Energy Efficiency Design Index (EEDI). It found both the EEDI and ETS approaches to be deeply flawed.
“[T]he EEDI approach would not only be a horribly inefficient (high resource cost) means of reducing CO2 emissions, but extremely dangerous in terms of safety and oil pollution. EEDI would be a major step in the wrong direction…A more fuel efficient, far, far safer twin screw ship will have a higher EEDI than an equivalent single screw ship. Mandating an EEDI will effectively outlaw twin screw. EEDI will also have a pernicious effect on structural strength. For most ship types, the Capacity term in the EEDI denominator is deadweight. By reducing lightweight, that is by reducing structural steel, a designer can increase deadweight without increasing displacement or reducing trial speed and thereby generate a lower EEDI. But once again we are dealing with a fleet in which structural margins have been pared to nothing, a fleet in which fatigue cracking is endemic, a fleet with very low corrosion margins.
… Efficiency is not a priority…[E]missions reductions scheme costs society three or four times as much as another for the same level reduction…Permit allocation offers opportunities to buy votes and trade favors…An allocation of permits is a windfall for the permitee, found money stolen from the public… Promoters expect to benefit…[B]ehind the scenes, the classification societies, IMO employees, and flag state registry services have been actively promoting ETS. ETS will require all sorts of audits and inspections and checks. The classification societies and related regulatory bodies see this as an immense expansion in their business, as it indeed will be. Some of the classification societies are already in the carbon auditing business…Precise Emissions Reduction. With cap-and-trade, the benefit is out front and the cost is hidden…With a cap-and-trade system, the headline is ‘ETS will reduce carbon emissions 23.5%’. Nobody knows what the costs will be, and they often go unmentioned. MEPC 60/4/22 calls this precise emissions reduction although in fact there is nothing precise about it…A distressing feature of the Norwegian shipping ETS is that there is essentially no relationship between the people who will vote the system in and the people who will pay the cost: the planet’s producers and consumers. The shipping ETS will be voted on by IMO rules. Under IMO rules, the voting is by flag state, with each flag state’s voting power based on the size of its fleet. In other words, the people who vote the system in will be predominately flag of convenience politicians: Panamanians, Liberians, Marshall Islanders, etc, some elected, some not. In either case, they are totally out of the control of the people who will pay for the inefficiencies… In the ship focused, ETS proposed by MEPC 60/4/22, the prime enforcer is the flag state. Most of the largest flag states are known more for their marketing prowess than enforcement. The EU and Australia have not been able to enforce a workable cap-and-trade. MEPC 60/4/22 relies mainly on flags of convenience to enforce this complex system. Many of these countries can’t even administer their own registry programs, hiring third parties to do the job…While the ETS alternative is far superior to EEDI, a carbon based bunkers tax would be much more efficient, more effective, more comprehensive, and far easier to administer…” [ccxxxiv]
Furthermore, it sets forth the outlines of the ‘ideal’ international bunker fuel carbon tax which it characterizes as an upstream production/‘export’ carbon content fuels tax eligible for downstream rebates that can be administered by national governments at the country level independent of IMO involvement.[ccxxxv] The outlines of the ‘ideal’ bunker fuel carbon tax, which would apply to ALL industries including international shipping, are as follows:
“By far the most attractive market based measure is a bunkers tax based on carbon content…In the ideal system each country’s tax would be collected as far upstream as possible. For domestic production, this will be at the well-head or the mine mouth. For imports, it will be at the point of entry. The tax would be charged on the carbon content of all fossil fuel produced/imported without exception…Taxing at the point of production or importation is administratively very attractive…However, taxing this far upstream requires a system of rebates to handle non-fuel use, carbon sequestration and removal, and exports…Chemical plants and other non-fuel consumers will have to apply for rebates by documenting that the fuel they bought were used for non-fuel purposes…Fuel consumers who are large enough to remove and sequester CO2 will be large enough to document the amount of carbon sequestered, and then would apply for rebates. Plants that produce hydrogen from fossil fuel and sequester the carbon. would also apply for rebates on the basis of the amount of carbon sequestered…Any operation which removes and sequesters atmospheric CO2 should receive the same “rebate” as any other sequestration operation…The tax would be rebated to exported fossil fuel…1. [to] [a]void double taxation in the highly desirable event that the importing country adopts a similar system...[and to] [k]eep the revenues from the tax inside the country that actually consumes the fuel…This…allows a country to impose the tax unilaterally. There is no need for any international agreements… For the purpose of the ideal tax, international bunkers would be treated as exports…A very important feature of the ideal tax is that each country can implement it independently…The fuel is imported when it is loaded on to the ship…The bunker supplier will want to claim as high a rebate as possible. The importing shipowner will want to pay as small an import tax as possible. There is no way they can mutually benefit by understating the amount loaded. Also the bunker supplier has no motivation to claim to be selling to domestic shipping when in fact he is not. That would cost him his rebate. In fact, his motivation is just the opposite, to falsely claim that he is exporting when in fact the fuel will be used domestically…If the exporting country has not enacted an ideal tax, then [the] bunker tax is playing the role of a carbon content import duty…The prime enforcer of a bunkers tax is the country where the ship bunkers” (emphasis in original).[ccxxxvi]
[i] 1972 is the year of the United Nations Conference on the Human Environment, which took place in Stockholm, Sweden. “It considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.” And, it called upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity”, by fulfilling 26 principles. Pursuant to Principle 7, “States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.” See “Declaration of the United Nations Conference on the Human Environment”, United Nations Environment Program website at: http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503 .
[ii] 1992 is the year of United Nations Conference on Environment and Development (UNCED), otherwise known as the ‘Earth Summit’, which took place in Rio de Janeiro, Brazil. It continues to be described as the most important indication of a worldwide paradigm shift with respect to the environment. was the United Nations Conference on Environment and Development (“UNCED”). The Earth Summit, among other things, produced the Rio Declaration on Environment and Development (hereinafter referred to as “the Rio Declaration”), a non-binding set of broad principles set forth in the form of declarations, that helped to create international environmental norms and expectations. It also produced a non-binding agreement called ‘Agenda 21’, which is a global plan of action for more sustainable societies. The UNFCCC, as well, was opened for signature at the Earth Summit, although it was negotiated independently of the UNCED during the same period of time. Rio Principle 15 is understood to have articulated the facts and circumstances, scientific risk assessment and economic cost benefit analysis-based Precautionary Approach as opposed to the broader and more sweeping hazard-based European Precautionary Principle.
[iii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements”, UNEP/IGM/1/INF/3 (April 6, 2001), presented at the MEETING OF THE OPEN-ENDED INTERGOVERNMENTAL GROUP OF MINISTERS OR THEIR REPRESENTATIVES ON INTERNATIONAL ENVIRONMENTAL GOVERNANCE (April 18, 2001) at pars. 9-11, at: http://www.ramsar.org/key_unep_governance1.htm . See also Linda Nowlan and Chris Rolfe, “Kyoto, POPS and Straddling Stocks: Understanding Environmental Treaties” West Coast Environmental Law (Jan. 2003) at p. 16 at: http://www.wcel.org/wcelpub/2003/13929.pdf .
[iv] “The scope of the biodiversity-related conventions ranges from the conservation of individual species (CITES and the Lusaka Agreement) via conservation of species, their migration routes and their habitats (CMS, AEWA, EUROBATS, ASCOBANS, ACCOBAMS and various MOUs) to the protection of ecosystems (CBD, the Ramsar Convention, the World Heritage Convention and the International Coral Reef Initiative--ICRI).” See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, - Status of Multilateral Environmental Agreements”,supra., at par. 18.
[v] “The Vienna Convention on the Protection of the Ozone Layer and its Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change and its Kyoto Protocol are closely associated in protecting the environment by eliminating or stabilizing anthropogenic emissions that threaten to interfere with the atmosphere.” Id., at par. 19.
[vi] “This cluster is comprised of only one major global convention. As stated in the text, the main objective of the UNCCD (“United Nations Convention to Combat Desertification”) is to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa. This objective is to be achieved through effective action at all levels, supported by international cooperation and partnership arrangements, in the framework of an integrated approach which is consistent with Agenda 21, with a view to contributing to the achievement of sustainable development in affected areas.” Id., at par. 20.
[vii] “The overarching objective of the chemicals and hazardous wastes conventions is the protection of human health and the environment from pollution by specific chemicals and hazardous substances. In the case of the Rotterdam Convention, it specifically addresses certain banned or severely restricted chemicals, as well as severely hazardous pesticide formulations, subject to international trade. The Stockholm Convention has as its priorities the phasing out of an initial list of 9 chemicals, the restriction to certain acceptable purposes the production and use of DDT, and the reduction or elimination of unintentionally produced chemicals (dioxin and furans). The Convention also has provisions to add further POPs to the treaty, and will require parties with new chemical programmes to prevent the introduction of new POPs onto the marketplace. The scope of the Basel Convention covers a broad range of hazardous wastes, including chemical wastes, subject to transboundary movements, aiming to reduce these movements to a minimum by minimizing the quantity and hazardousness of the wastes generated and by promoting the treatment and disposal of hazardous wastes and other wastes as close as possible to their source of generation. These global MEAs are complimented by regional agreements such as the Bamako Convention and the Waigani Convention, as well as the Protocol to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources.” Id., at par. 21.
[viii] There is a strong interrelationship between the global mosaic of regional seas conventions and actions plans, the chemicals-related conventions, and the biodiversity-related conventions. “By far the largest cluster of MEAs, the 17 regional seas conventions and action plans are a global mosaic of agreements with one over-arching objective: the protection and sustainable use of marine and coastal resources...The Barcelona Convention (1976), the oldest of these agreements, fostered the establishment of the Mediterranean Commission for Sustainable Development which is serviced by the Secretariat of the Convention. Also included in this cluster are the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA) and the International Coral Reef Initiative (ICRI) which were both adopted in 1995... From a substantive point of view, the GPA is closely related to the chemicals-related conventions on issues such as agrochemicals, persistent organic pollutants and heavy metals. Likewise, the work of ICRI is closely associated with the biodiversity-related conventions, specifically CBD, CITES and Ramsar.” Id., at pars. 22 and 23. See in particular, “Table 1 - Core Environmental Conventions and Related Agreements of Global Significance”.
[ix] Id. at par. 14.
[x] “Major MEAs can be divided into two groups: first generation and second generation. First generation MEAs focus on issues such as air and water pollution, wildlife conservation, and protection of vulnerable habitat. Pivotal first generation treaties include MARPOL 73/78; the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972); the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973); and the Ramsar Convention on Wetlands (1971). Second generation MEAs involve even more complex issues that implicate economic behavior and lifestyles at a multiplicity of levels. Pivotal second generation treaties include the Vienna Convention for the Protection of the Ozone Layer (1985), and subsequent Protocols (in particular the Montréal Protocol (1987) and London Amendment thereto (1990)); the United Nations Framework Convention on Climate Change (FCCC) (1992) and Kyoto Protocol (1997); the Convention on Biological Diversity (CBD) (1992); the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989); and the United Nations Convention to Combat Desertification (CCD) (1994). Another major MEA is the United Nations Convention on the Law of the Sea (UNCLOS) (1982) which, although not primarily concerned with environmental issues, addresses pollution and protection of the marine environment” (emphasis added). See Mark Drumbl, “Actors and Law-Making in International Environmental Law”, at p. 18, RESEARCH HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW, Ong & Fitzmaurice, eds., Edward Elgar Publishing, 2007 Available at SSRN: http://ssrn.com/abstract=1022363 .
[xi] See Linda Nowlan and Chris Rolfe, “Kyoto, POPS and Straddling Stocks: Understanding Environmental Treaties”, supra at at p. 16, citing Mostafa Tolba and Iwona Rummel-Bulska, Negotiating the Environment, (Boston: MIT Press), 1999 (“the memoirs of the longest serving Executive Secretary of UNEP, documenting this period of MEA development”). Id., at fn 12.
[xii] This illustration is an extract of “Table 4 - Global Conventions Relevant to the Environment, including Regional Conventions of Global Significance”, found within “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Executive Summary UNEP/IGM/1/INF/3 (April 6, 2001).
[xiii] See “German Advisory Council on Global Change – Mission”, at: http://www.wbgu.de/wbgu_auftrag_en.html .
[xiv] See “The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) at: http://www.imo.org/Conventions/mainframe.asp?topic_id=255 .
[xv] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publications Ltd. © 2000) Figure B 3.2-1 at p. 55, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf ; http://www.wbgu.de/Images/jg2000_en/fig_B3-2-1.pdf . “Arrowheads indicate amplifying effects, the circle indicates a dampening effect. Bold arrows and the bold circle indicate strong effects, outline arrows stand for weaker effects. The grey shaded fields state relevant global negotiating processes.” Id.
[xvi] “In October 2000, the Economic and Social Council of the United Nations (ECOSOC), in its Resolution 2000/35 established the United Nations Forum on Forests (UNFF), a subsidiary body with the main objective to promote “…the management, conservation and sustainable development of all types of forests and to strengthen long-term political commitment to this end…”based on the Rio Declaration, the Forest Principles, Chapter 11 of Agenda 21 and the outcome of the IPF/IFF Processes and other key milestones of international forest policy. The Forum has universal membership, and is composed of all Member States of the United Nations and specialized agencies. Following intense negotiations, the Seventh Session of the Forum adopted the landmark non-legally binding agreement on all types of forests on 28 April 2007. The instrument is considered a milestone, as it is the first time Member States have agreed to an international instrument for sustainable forest management.” See “UNFF Fact Sheet”, United Nations Forum on Forests website at: http://www.un.org/esa/forests/about.html . “The purpose of this instrument is: (a) To strengthen political commitment and action at all levels to implement effectively sustainable management of all types of forests and to achieve the shared global objectives on forests; (b) To enhance the contribution of forests to the achievement of the internationally agreed development goals, including the Millennium Development Goals, in particular with respect to poverty eradication and environmental sustainability; (c) To provide a framework for national action and international cooperation.” See “United Nations Forum on Forests Report of the Seventh Session (Feb. 24, 2006 to April 27, 2007) Economic and Social Council Official Records, 2007, Supplement No. 22, E/CN.18/2007/8 at p. 4, at: http://daccessdds.un.org/doc/UNDOC/GEN/N07/349/31/PDF/N0734931.pdf?OpenElement .
[xvii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Status of Multilateral Environmental UNEP/IGM/1/INF/3 (April 6, 2001), supra at par. 11.
[xviii] Id., at par. 14. “The core environmental conventions and related international agreements are basically divided into five clusters: the biodiversity-related conventions, the atmosphere conventions, the land conventions, the chemicals and hazardous wastes conventions, and the regional seas conventions and related agreements.” Id., at par. 15.
[xix] See Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics Third Edition (Harcourt College Publishers © 2000) at. p. 57.
[xx] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Recommendations and Options”, UNEP/IGM/1/INF/3 supra, at par. 151. “Multilateral environmental agreements adopted after 1972 generally have the following institutional elements: a Conference of the Parties (COP), a secretariat, advisory bodies, a clearing-house mechanism and a financial mechanism.” See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements” at par. 29.
[xxi] There are “basically six UN organizations that play an important role in supporting MEAs and conventions and protocols relevant to the environment.” They include the UN General Secretariat, the UN Environment Program (UNEP), the International Maritime Organization (IMO), the International Labor Organization (ILO) and the Food and Agricultural Organization (FAO). Id.
[xxii] See Frank Biermann and Steffan Bauer, A World Environmental Organization: Solution or Threat for Effective International Environmental Governance (© 2000 Ashgate Publ.) at p. 190, at: http://books.google.com/books?id=bGJW1aBz_fMC&dq=%22unclos+secretariat%22 .
[xxiii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Status of Multilateral Environmental Agreements supra. at par. 90.
[xxiv] See discussion, infra.
[xxv] See Cliff Kincaid, “President Bush's Toilet Bowl Treaty”, The National Ledger (Oct. 29, 2007) at: http://www.nationalledger.com/artman/publish/article_272616936.shtml .
[xxvi] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements UNEP/IGM/1/INF/3 (April 6, 2001), supra at pars. 25 and 27.
[xxvii] Id., at par. 92.
[xxviii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs), - Status of Multilateral Environmental Agreements”, supra, at par. 22.
[xxix] See “OECD Development Assistance Committee (1996) Guidelines for Aid Agencies on Global and Regional Aspects of the Development and Protection of the Marine and Coastal Environment, Guidelines on Environment and Aid”, No. 8, OECD, Paris at pp. 22, at: http://www.oecd.org/dataoecd/37/9/1887756.pdf . “The Guidelines are only one aspect of the DAC activities which bear on sustainable development. Current activities include work on capacity development in the field of environment; environmental assessment; technology co-operation; trade, environment and development co-operation; and national planning for sustainable development.” Id., at p. 3. See generally, “DAC Guidelines on Aid and Environment”, Development Cooperation Directorate, Organization for Economic Cooperation and Development (OECD) at: http://www.oecd.org/document/26/0,3343,en_2649_33721_1887578_1_1_1_1,00.html .
[xxx] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements”, supra. at par. 92.
[xxxi] See “The United Nations and the Law of the Sea”, The United Nations Convention on the Law of the Sea(A historical perspective) UN Division of Ocean Affairs and the Law of the Sea website at: http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#The%20United%20Nations .
[xxxii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements” supra. at par. 12.
[xxxiii] See Chris McGrath, Synopsis of the Queensland Environmental Legal System 4th Ed. (Environmental Law Publ. 2006), at p.8, at: http://www.envlaw.com.au/sqels4.pdf .
[xxxiv] * “The UN Secretariat under Article 7 of the Charter is included as one of the six ‘principal organs of the United Nations’. The Secretariat consists of [fulltime] officials and civil servants who perform administrative, budgetary, secretarial, linguistic, staff and housekeeping functions for the other principal organs and carry out the programs of the organization...They are supposed to serve the entire membership of the United Nations in a politically neutral manner, although reality sometimes falls short of the ideal. Heading the Secretariat is a Secretary-General who in Article 97 [of the Charter] is designated ‘the chief administrative officer of the Organization’. Pursuant to Article 101 of the Charter, Secretariat staff appointments are made by the Secretary General pursuant to regulations established by the General Assembly. See Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics, supra at. p.57. “Lending money, giving advice on agricultural questions, fighting AIDS, reducing illiteracy, improving meteorological services, regulating labor standards, promoting human rights, safeguarding the environment, and providing refugee relief are just some of the UN activities that come within the purview of the UN Secretariat” (emphasis added). Id., at pp. 110-111.
[xxxv] See Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics, supra at pp. 122-124.
[xxxvi] “Myth: The Convention is a “UN” treaty and therefore does not serve our interests. Reality: The Convention is not the United Nations – it was merely negotiated there, as are many agreements, and negotiated by States, not by UN bureaucrats.” 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] (Oct. 2007) at p. 14, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .
[xxxvii] “[T]he LOS Convention does not award any decision-making authority on any issue to the United Nations. The fact that the term ‘United Nations’ appears in the title of the LOS Convention is legally meaningless and is an accident of history. The LOS Convention is a multilateral agreement that governs the legal relations among the States Parties. It creates three bodies, the International Seabed Authority, the Law of the Sea Tribunal and the Commission on the Limits of the Continental Shelf. All three are funded and organized by the States Parties to the LOS Convention and not by the United Nations.” See Letter dated April 7, 2004, to The Honorable Richard G. Lugar Chairman, Committee on Foreign Relations, Re: LOS Convention”, from eight former U.S. State Department Legal Advisers, at: http://lugar.senate.gov/sfrc/pdf/letter12.pdf .
[xxxviii] ** “The critics urge that the Convention will turn the world’s oceans over to the United Nations. To the contrary, the Convention establishes coastal nations’ control over the principal resources of the oceans while protecting freedom of navigation. The United Nations has no decision authority over any oceans issue under the Convention and no organization created is a branch of the United Nations. Rather, the three strictly limited organizations created report to the States parties to the treaty, not the United Nations. As with many arms control agreements of the United States, the negotiations proceeded under United Nations auspices. It was individual nations, however, who developed the Convention, not the United Nations.” See John Norton Moore and William L. Schachte, Jr., “The Senate Should Give Immediate Advice and Consent to the Law of the Sea Convention: Why the Critics Are Wrong”, at p. 7, at: http://www.virginia.edu/colp/pdf/Moore.Schachte.final.pdf . Perhaps Professors Moore and Schachte should take a refresher course in the United Nations, focusing on how the expert staff of the UN General Secretariat, and the UNCLOS Secretariat, in particular, could actually influence UNCLOS policies.
[xxxix] “Of the 41 core environmental conventions, protocols and related international agreements...UNEP provides the secretariat for 22. It also promoted and facilitated the negotiations for 13 other conventions and agreements. With these 13 and the remaining 6 conventions and agreements, UNEP maintains a working relationship, albeit at different degrees of support. In short, UNEP is the principal organization providing secretariats to the core environmental conventions and with working relationships with all the core environmental conventions” (emphasis added). See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Recommendations and Options”, UNEP/IGM/1/INF/3 supra, at par. 151.
[xl] This author believes that such others include, in addition to the CBD, the Secretariats of: 1) the Basel Convention; 2) the Convention on International Trade in Endangered Species (CITES); 3) the Convention on Migratory Species (CMS); 4) the Ozone; 5) the Multilateral Fund for the Implementation of the Montreal Protocol; 6) Interim Secretariat of the Rotterdam Convention on PIC, together with FAO; and 7) Interim Secretariat of the Stockholm Convention on POPs. See “United Nations Environment Program – Organizational Profile” (2007), at p. 22, at: http://www.unep.org/PDF/UNEPOrganizationProfile.pdf .
[xli] This author believes that another such body might be the International Programme on Chemical Safety. See “International Programme on Chemical Safety” website at: http://www.who.int/ipcs/en .
[xlii] The UN Trusteeship Council was created to “help ensure that non-self-governing territories were administered in the best interests of the inhabitants and of international peace and security. The trust territories – most of them former mandates of the League of Nations or territories taken from nations defeated at the end of World War II – have all now attained self-government or independence, either as separate nations or by joining neighbouring independent countries... Under the Charter, the Trusteeship Council was to consist of an equal number of United Nations Member States administering trust territories and non-administering states. Thus, the Council was to consist of (1) all U.N. members administering trust territories, (2) the five permanent members of the Security Council, and (3) as many other non-administering members as needed to equalize the number of administering and non-administering members, elected by the United Nations General Assembly for renewable three-year terms. Over time, as trust terrritories attained independence, the size and workload of the Trusteeship Council was reduced and ultimately came to include only the five permanent Security Council members (China, France, the Soviet Union/Russian Federation, the United Kingdom, and the United States)... The Trusteeship Council was not assigned responsibility for colonial territories outside the trusteeship system, although the Charter did establish the principle that member states were to administer such territories in conformity with the best interests of their inhabitants. See “United Nations Trusteeship Council”, Wikipedia at: http://en.wikipedia.org/wiki/United_Nations_Trusteeship_Council .
[xliv] See “UN Reform - Restructuring for Global Governance”, Ecologic (July/August, 1997) at: http://www.sovereignty.net/p/gov/ggunreform.htm#9 .
[xlv] See A/RES/52/12 UNGA (Nov. 12, 1997), at: http://www.undg.org/archive_docs/1551-Renewing_the_UN__A_Res_52_12_-_Renewing_the_UN__A_Res_52.doc .
[xlvi] Stephen C. Nemeth, Sara McLaughlin Mitchell, Elizabeth A. Nyman and Paul R. Hensel, “UNCLOS and the Management of Maritime Conflicts”, supra, at pp. 14-15.
[xlvii] See “Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks”, at: http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm .
[xlviii] “As fish stocks have diminished, the international community has recognized that several issues needed to be addressed. These included the practice of reflagging fishing vessels and the management of straddling and highly migratory fish stocks. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas promotes sustainable international fisheries by addressing fishing vessel reflagging. The accountability principles outlined in this Reflagging Agreement are the cornerstones of a further Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. This second Agreement creates a framework within which regional arrangements are to be developed to cope with conservation and management concerns, relying on international technological and scientific cooperation. A non-binding Code of Conduct for Responsible Fisheries, developed by the United Nations Food and Agriculture Organization (FAO), represents the culmination of these efforts. All of these recently negotiated agreements extend provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to promote better international fishery conservation and management. Through these agreements, the United States has an opportunity to ratify and implement several less-controversial provisions of UNCLOS. The United States has already implemented the Reflagging Agreement through Title I of P.L. 104-43. The Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was signed by the United States on December 4, 1995, and will soon be transmitted to the Senate for advice and consent.” See Eugene H. Buck, “Agreements to Promote Fishery Conservation and Management in International Waters”, CRS Report 96-56 (Jan. 5, 1996) at: http://www.ncseonline.org/nle/crsreports/marine/mar-8.cfm .
[xlix] See “Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part XI of the Convention and of the Agreement for the implementation of the provisions of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks” at: http://www.un.org/Depts/los/reference_files/status2007.pdf .
[l] “The Agreement encourages states to avoid disputes, but to institute expeditious dispute-settlement procedures if needed. Pending the settlement of a dispute, Parties are encouraged to adopt practical provisional arrangements. In technical disputes, the Agreement provides for ad hoc panels to promote resolution. Part XV (Settlement of Disputes) of UNCLOS applies to all disputes between states party to the SFS/HMFS Agreement, regardless of whether the states are participants in UNCLOS” (emphasis added). See CRS Report 96-56 (Jan. 5, 1996), supra.
[li] “Part XIV of UNCLOS focuses on the development and transfer of marine technology (refer to brief discussion on UNCLOS in this paper). SOPAC [South Pacific Applied Geoscience Commission] is recognized as the regional agency assisting its members benefit from the transfer of marine technology and the promotion of marine scientific research [MSR]. Technology and its utilization should be environmentally sound and appropriate and be made available at all levels. This ranges from the transfer of knowledge to the more sophisticated equipment used in MSR and monitoring of fisheries regimes and those that address issues ranging from resource management and conservation at the community level to those that relate to climate change and greenhouse emissions. The Kyoto Protocol for example suggests the formulation of policies and programmes to promote and enhance the transfer of and access to environmentally sound technologies...UNCLOS did not deal with climate change and sea level rise issues. This however has been adequately covered in subsequent conventions and agreements” (emphasis added). See “Overview of an Ocean Policy for the Pacific Islands”, Pacific Islands Regional Ocean Forum (PIROF), Council of Regional Organisations in the Pacific, Pacific Islands Forum Secretariat (June 2001) at pp. 27 and 35, at: http://www.spc.int/piocean/MSWG/PIROP_overview_seremaia.pdf .
[lii] “Treaty interpretation is an important method that can be applied by diplomats and dispute settlement bodies to harmonise two norms that seem to be in conflict. It cannot resolve ‘genuine conflicts’, i.e. cases in which compliance with one norm leads to breach...of another. The main rules on how to interpret treaties can be found in the Vienna Convention on the Law of Treaties (VCLT). Art 31 VCLT provides gives basic interpretation rules, stipulating that a treaty’s ordinary meaning, its context, and its object and purpose should be taken into consideration. It also gives more dynamic interpretation rules, which determine that interpretation should take into account a) any subsequent agreement between the Parties on interpretation of the treaty, b) any subsequent practice in the application of the treaty, and c) “any relevant rules of international law applicable in the relations between the parties” (Article 31.3 VCLT)... The third rule of Article 31.1 (c) is perhaps the most interesting one. It includes a principle of ‘systemic integration’... that opens up the possibility to interpret treaties in the light of a broader system of international law, of which other related treaties related are also a part. Given the relatively young age of international environmental law, the lack of references to environmental considerations, linkages between environmental and non-environmental issue areas, and continuous changes in scientific insights...it is attractive to use this interpretative tool in disputes between, for example, climate and trade...views the provision as a possibility to apply a ‘harmonising approach’ to the conflict between the CBD and Kyoto Protocol on the issue of sinks. The main question in this regard is whether the relevant law must be in place at the time of the adoption of a new treaty or at the time of interpretation. The latter allows for a more ‘evolutionary approach’ to treaty interpretation, and is arguably appropriate when interpreting terms that are likely to evolve over time... This would mean, for example, that some provisions of UNCLOS, adopted in 1982, could now be interpreted to apply to the issue of climate change, even though negotiations on the UNFCCC did not start until the late 1980s” (emphasis added). See Harro van Asselt, “Dealing with the Fragmentation of Global Climate Governance: Legal and Political Approaches in Interplay Management”, Global Governance Working Paper No 30—May 2007 at p. 6, at: http://glogov.org/images/doc/WP30.pdf .
[liii] The prior Senate testimony of other LOST proponents is also quite revealing. In addition to Mr. Rufe, former Senator Claiborne Pell and current Senator Richard Lugar previously referred to LOST as a new “constitution for the world’s oceans”. In addition, University of Miami School of Law Professor, Bernard Oxman has referred to the UNCLOS as “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time”, given “the attention it devotes to environmental protection”. Bernard Oxman, “The Territorial Temptation: A Siren Song at Sea”, supra, at p. 843. Prof. Oxman previously testified that LOST is “the most important and comprehensive international environmental agreement in existence” (emphasis added). Id.
[liv]See J.D. Werksman, “Formal Linkages and Multilateral Environmental Agreements”, Background Paper Prepared for the International Conference on Synergies and Co-ordination Between Multilateral Environmental Agreements (United Nations University Tokyo July 14-16, 1999) at pp. 6 and 9, at: http://www.geic.or.jp/interlinkages/docs/jake.PDF .
[lv] “The law of the sea and Antarctica are intimately related. Appreciation for that relationship and for its international political and policy implications requires assessment of the legal situation of the continent. That is, Antarctica’s legal situation remains linked to considerations about sovereignty on the continent and the legal bases for states asserting valid title to territory there. Antarctica today is claimed by seven states (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) which base the legitimacy of their pie-shaped sectors on various legal grounds. The precise legal status of these claims to the continent in turn determines whether the claimants may lawfully extend jurisdiction offshore in the form of territorial seas, exclusive economic zones and continental shelf delimitations. Even though these claims to Antarctica exist, it is equally important to realize that they are not recognized by any other states in the international community” (emphasis added). See Christopher C. Joyner, “Antarctica and the Law of the Sea”, (Martinus Nijhoff Publishers © 1992) at p. 41, at: http://books.google.com/books?id=y6JAr747H60C&pg=PA36&vq=142&dq=antarctic+treaty+%2B+area+beyond+national+jurisdiction&source=gbs_search_r&cad=1_1#PPA41,M1.
[lvi] See Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (April 2009) at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf .
[lvii] “Some commentators assert that State parties to the 1982 LOS Convention (but not to the Antarctic Treaty) will view the Southern Ocean as having the character of high seas, beyond national jurisdiction. In addition, those States will view the seabed of the Southern Ocean as the common heritage of mankind, subject to the deep seabed mineral regime provided by Part XI of the 1982 LOS Convention…Conversely, Scott Hajost has contended that neither Antarctica, nor the adjacent Antarctic seabed can be considered to be part of the deep seabed ‘Area’ mentioned in Part XI because there is no consensus that these regions are beyond the limit of national jurisdiction…In addition, during UNCLOS III negotiations, the President, Hamilton Shirley Amerasinghe of Sri Lanka, even asserted that Antarctica was in no way linked to the Convention…That the possibility of ‘reverse creeping jurisdiction’ occurring along the Antarctic continental shelf may be but a moot point, simply because no consensus has ever existed on Part XI of Convention” (emphasis added). Id., at p. 140, fn 141, citing Pinto, “Authority to Manage Resources of the Southern Ocean”, p. 36; Scott Hajost, “Authority to Manage Fisheries and Mineral Resources of the Southern Ocean: The Perspective of Non-Claimant Parties to the Antarctic Treaty” in Clingan, Law of the Sea: What Lies Ahead?, p. 376; UN Doc. A/PV 2380 (1975) p. 16; Francisco Orrego-Vicuna, “Antarctic Mineral Exploitation: The Emerging Framework”, (Cambridge Univ. Press © 1988), p. 210. “To wit, no mention is made in the Antarctic Treaty of either the territorial sea or the continental shelf. Article VI maintains that the treaty applies to the area south of 60 degrees South latitude, including all ice shelves. However, the article also asserts that ‘Nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the ‘high seas’ within that area’…In addition, Article IV of the Treaty would prohibit any new claims to territorial sovereignty in Antarctica, or the enlargement of an existing claim, both of which would be implicit in effecting continental shelf delimitation” (emphasis added). Id., at p. 140, fn 142.
[lviii] See Marian Wilkinson, “Greenhouse Gas Threatens Ocean Food Chain”, The Sydney Morning Herald (March 9, 2009) at: http://www.smh.com.au/environment/global-warming/greenhouse-gas-threatens-ocean-food-chain-20090308-8sgt.html. (“Rising concentrations of acid in the Southern Ocean caused by greenhouse gases are damaging the ability of some sea creatures to form shells, posing a serious threat to marine life, a study by Australian scientists has found…‘The potential knock-on effects pose significant implications for the oceanic food chain and the findings are a worrying signal of what we can expect to see elsewhere in the future,’ said Dr Howard, whose study was funded by the Federal Government's Department of Climate Change. The study, which is published today in the journal Nature Geoscience, compared the shells of microscopic marine animals, called forams, taken from the Southern Ocean with shells from similar animals preserved in sediments dating back to pre-industrial times. The scientists found the modern creatures had shell weights 30 to 35 per cent lower than their pre-industrial forebears. The study has implications for a wide range of sea life whose shells or skeletons could be damaged or deformed by rising acid levels, including krill, the main food source for whales”). Id. Green groups had previously rung the alarm bells during 1993 about the risk that mineral exploitation and over-fishing posed to krill. See “Written Statement of Bruce S. Manheim, Jr., Senior Attorney, Environmental Defense Fund”, Before the Subcommittee on Economic Policy, Trade and Environment of the House Committee on Foreign Affairs and the House Committee on Merchant Marine and Fisheries, on Implementing Legislation for the Protocol on Environmental Protection to the Antarctic Treaty supra, at p. 45; “Letter dated August 23, 1993 to Vice President Al Gore from Jim Barnes, International Director, Friends of the Earth, and Beth Marks, Director, the Antarctica Project”, and “Remarks of James N. Barnes, ‘The Place of Science on an Environmentally Regulated Continent’” supra, at pp. 127-128.
[lix] See “Statement on behalf of the European Union by Prof. Dr. Gerhard Hafner, Austrian Federal Ministry for Foreign Affairs”, Ad Hoc Open-ended Informal Working Group of the United Nations General Assembly to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (2/13/06) (emphasis added) at: http://www.eu-un.europa.eu/articles/en/article_5691_en.htm .
[lx] See “Statement on behalf of the European Union by Mr. Aleksander Čičerov, Minister Plenipotentiary at the Permanent Mission of Slovenia to the United Nations”, United Nations General Assembly Ad-Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, (4/28/08) at: http://www.eu2008.si/en/News_and_Documents/Statements_in_International_Organisations/April/0428UN_Marine_Biological_Diversity.html ; http://newyork.predstavnistvo.si/fileadmin/user_upload/dkp_13_mny/docs/EU_Presidency_Statements/1EU_opening_statement_28.4.08.pdf .
[lxii] See The EU and the Arctic Region - Multilateral Governance Maritime Policy Actions, European Commission, Maritime Affairs website at: http://ec.europa.eu/maritimeaffairs/arctic_governance_en.html .
[lxiii] See Kristina M. Gjerde, Harm Dotinga, Sharelle Hart, Erik Jaap Molenaar, Rosemary Rayfuse and Robin Warner, Options for Addressing Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, IUCN Environmental Policy and Law Papers online Marine Series No. 2 (International Union for Conservation of Nature and Natural Resources © 2008) at p. 3, at: http://cmsdata.iucn.org/downloads/iucn_marine_paper_2.pdf .
[lxiv] Id., at p. 9 (emphasis added).
[lxv] See Sharelle Hart, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, IUCN Environmental Policy and Law Papers online Marine Series No. 4 (International Union for Conservation of Nature and Natural Resources © 2008) at p. 5, at: http://cmsdata.iucn.org/downloads/iucn_marine_paper_4.pdf .
[lxvi] See J. William Middendorf II and Lawrence A. Kogan, “The ‘LOST 45’ UN Environmental Restrictions on U.S. Sovereignty”, ITSSD JOURNAL ON THE UN LAW OF THE SEA CONVENTION (Sept. 2007), accessible at: http://itssdjournalunclos-lost.blogspot.com/2008/01/itssd-lost-45-un-environmental.html.
[lxvii] The ISBA has been rather active since 1997. They have already completed final environmental regulations and guidelines governing the activities relating to polymetallic nodules and only recently submitted to the ISBA Assembly for consideration draft regulations and guidelines they have worked on to encompass polymetallic ferromanganese sulfides and cobalt-rich crusts. See Report of the Secretary-General of the International Seabed Authority under article 166, par. 4, of the United Nations Convention on the Law of the Sea”, 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 12, http://www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-2.pdf; 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), http://www.isa.org.jm/files/documents/EN/6Sess/Ass/ISBA-6A-18.pdf; Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, International Seabed Council ISBA/13/C/WP.1 (March 29, 2007), http://www.isa.org.jm/files/documents/EN/13Sess/Cncl/ISBA-13C-WP1.pdf; 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), http://www.isa.org.jm/files/documents/EN/13Sess/LTC/ISBA-13LTC-WP1.pdf; Informal Note on Matters before the 14th Session of the Int’l Seabed Authority (May 26 - June 6, 2008), http://www.isa.org.jm/en/sessions/2008.
[lxviii] UNLCOS Article 145 mandates the International Seabed Authority to “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 [from] the coastline, and of interference with the ecological balance of the marine environment.” See UNCLOS Article 145(a). Article 145 also specifies that such rules, regulations and procedures must ensure “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.” See UNCLOS Article 145(b).
[lxix] 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) (emphasis added) at 13, Toolbox 1, http://www.iucn.org/THEMES/MARINE/pdf/10-Year_HSMPA_Strategy_SummaryVersion.pdf.
[lxx] Id., Executive Summary at p. vii.
[lxxi] Id. (emphasis added). “It is argued that financial and economic benefits derived from the utilisation of MGR should be shared on an equitable basis rather than kept for the benefit of the few technologically advanced States or entities that are in a position to undertake bioprospecting activities (especially of the deep seabed). A number of States have suggested that a benefit sharing regime for deep-seabed genetic resources could be included in the mandate of the ISA given the symbiotic relationship of the biodiversity with the deep seabed and its mineral resources. If bioprospecting for MGR is considered within the scope of an Implementation Agreement, the interests of developing countries regarding the sharing of financial benefits arising from the exploitation and utilisation of such resources should be considered.” Id., at p. 16.
[lxxiii] See “International Regime on Access and Benefit-Sharing”, UN Convention on Biological Diversity website at: http://www.cbd.int/abs/regime.shtml.
[lxxiv] See “Building a Global Partnership on Access and Benefit-Sharing”, Press Release, Secretariat of the Convention on Biological Diversity (April 1, 2009) at: http://www.cbd.int/doc/press/2009/pr-2009-04-01-abs-en.pdf.
[lxxv] See “General Assembly Resolution 61/222 - Genetic Resources Beyond National Jurisdiction, Marine Biodiversity Working Group Highlights: Wednesday 30 April 2008”, Earth Negotiations Bulletin Vol. 25 No. 47 (May 1, 2008) at pp. 1-2, at: http://www.iisd.ca/download/pdf/enb2547e.pdf. See also “Summary of the Eighth Meeting of the Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: 25-29 June 2007”, Earth Negotiations Bulletin Vol. 25 No. 43 (July 2, 2007) at: http://www.iisd.ca/download/pdf/enb2543e.pdf; “Eighth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: 25-29 June 2007”, Earth Negotiations Bulletin Vol. 25 No. 38 (June 25, 2007) at: http://www.iisd.ca/oceans/icp8/compilatione.pdf; United Nations General Assembly Resolution “Oceans and the Law of the Sea” (A/RES/61/222) (March 16, 2007) at: http://www.undemocracy.com/A-RES-61-222.pdf.
[lxxvi] See “Legal Status of Marine Genetic Resources in Question”, Bridges Trade BioRes Vol. 6, No. 4 (March 3, 2006) http://www.ictsd.org/biores/06-03-03/inbrief.htm.
[lxxviii] “Germany and France are strong advocates of institutional reform and the establishment of a World Environmental Organization.” See Norichika Kanie, “Governance With Multilateral Environmental Agreements: A Healthy or Ill-Equipped Fragmentation?”, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education (Lydia Swart and Estelle Perry Eds.) (© 2007) at p. 80, at: http://www.centerforunreform.org/node/251 .
[lxxix] Id., at Box E 2.3-1 at p. 136. “The Task Force comprised 21 eminent experts, met four times and submitted its report to the Secretary-General in 1998. It summarized its findings in 24 recommendations. Their implementation would serve to strengthen coordination among the various organizations, programmes and conventions, and enhance general political coherence in order to reinvigorate the work of the UN in the sphere of the environment and human settlements. The recommendations call for decisions and measures at both the intergovernmental and secretariat levels.” Id.
[lxxxii] “As a part of its vision for recasting the structures of global environment and development policy, the Council considers it essential to establish an independent body endowed with universally accepted ethical and intellectual authority, and charged with identifying and assessing the risks of global change. The Council recommends to the German government that it examines the options for establishing an ‘Earth Commission’ and that it submits a corresponding proposal to the United Nations...” Id., at p. F-2.
[lxxxiii] Id., at p. 3.
[lxxxiv] Id., at p.33.
[lxxxv] Id. at p.3.
[lxxxvi] Id., at p. 17.
[lxxxvii] Id. at p. 3.
[lxxxviii] “The members of the Earth Commission, appointed by the UN General Assembly, should number 10 to 15, and be leading figures of highest moral authority who can command the attention of a global audience, as the Brandt and Brundtland Commissions did. Such a commission might be viewed as a globalized form of the German Council for Sustainable Development (Rat für Nachhaltige Entwicklung). Where the need arises, the Earth Commission could be supported by inputs provided by scientific Panels. The Earth Commission could receive a right to propose scientific issues to be treated by the panels. These environmental analyses would then be processed by the Earth Commission and evaluated in terms of whether a ‘warning’ needs to be issued to the global public and the United Nations about impending and potentially irreversible environmental changes.” Id., at p. F-2.
[lxxxix] Id., at p. 173.
[xc] Id., at p. 131.
[xci] Id., at p. 17.
[xcii] “The foundation of a new International Environmental Organization into which the convention secretariats and UNEP would merge would indeed create a new bureaucracy – but it would simultaneously render several smaller ones superfluous. There is nonetheless a need to state clearly what a new International Environmental Organization should not yield, or what must at all events be avoided. For one thing, it needs to be ensured that such an organization does not carry out projects itself. On-site project coordination should continue to be provided, according to the specific technical expertise required, by UNDP, the World Bank, FAO or UNIDO, whereby the new International Environmental Organization would operate exclusively as client and provider of substantive support. It would greatly exacerbate the inefficiency of the overall system if a further project-executing organization were created in addition to the existing project-focused entities in the UN system.” Id., at pp. 134-135.
[xciii] Institut du Developpment Durable et des Relations Internationales (IDDRI) “is an association loi de 1901 that examines sustainable development issues that require international coordination, such as climate change or the depletion of natural resources. Its research focuses on global governance, North-South relations and international negotiations. IDDRI has three objectives: informing policy decisions; identifying emerging issues; and creating a platform for dialogue between stakeholders whose interests are often at odds - research organizations, public and private economic actors, unions and NGOs.” See IDDRI Website at: http://www.iddri.org/L .
[xciv] See Jürgen Trittin, Environment Minister, Federal Republic of Germany, “Strengthening environmental protection in the United Nations” Presented at the IDDRI Conference ‘International Environmental Governance’ (March 15, 2004) at:
http://www.iddri.org/Activites/Conferences/trittin.pdf . “The Global Ministerial Environment Forum in Malmö four years ago called emphatically for ‘an institutional architecture that has the capacity to effectively address wide-ranging environmental threats in a globalizing world’... The goal is clear: to strengthen and enhance the United Nations Environment Programme...[I]f we want to make real improvements in living conditions, we need a fundamental counterweight to the World Trade Organisation and to the international environmental governance structures which are driving globalisation forward.” Id., at p.1. “A separate issue here is...how...can... UNEP - even more than is the case today...become the globally recognised voice of the United Nations on environmental protection... The principle of sustainable development cannot assert itself at the international level. This is due to the fact that in its current format, UNEP is not an equal partner to the major players of the UN system, not to mention the World Bank and the IMF. It is unacceptable that the institution championing questions of survival for this planet remains a junior partner in the United Nations... In contrast to major international organisations such as the FAO, ILO and WTO, as a United Nations programme UNEP's structure is not strong enough to allow it to influence international policies in favour of environmental protection in the way major challenges necessitate.” Id., at p. 3.
http://www.iddri.org/Activites/Conferences/trittin.pdf . “The Global Ministerial Environment Forum in Malmö four years ago called emphatically for ‘an institutional architecture that has the capacity to effectively address wide-ranging environmental threats in a globalizing world’... The goal is clear: to strengthen and enhance the United Nations Environment Programme...[I]f we want to make real improvements in living conditions, we need a fundamental counterweight to the World Trade Organisation and to the international environmental governance structures which are driving globalisation forward.” Id., at p.1. “A separate issue here is...how...can... UNEP - even more than is the case today...become the globally recognised voice of the United Nations on environmental protection... The principle of sustainable development cannot assert itself at the international level. This is due to the fact that in its current format, UNEP is not an equal partner to the major players of the UN system, not to mention the World Bank and the IMF. It is unacceptable that the institution championing questions of survival for this planet remains a junior partner in the United Nations... In contrast to major international organisations such as the FAO, ILO and WTO, as a United Nations programme UNEP's structure is not strong enough to allow it to influence international policies in favour of environmental protection in the way major challenges necessitate.” Id., at p. 3.
[xcv] “Two separate goals are of key importance for the reform of environmental governance. One relates to UNEP's structure, the other to its status within the system of the United Nations as a whole:  universal membership of all UN Member States in the UNEP Governing Council and consequently also in the Global Ministerial Environment Forum[; and]  enhancement of UNEP to a UN Environment Organisation in the form which is currently being discussed in a New York working group headed by France. This is not just symbolic policy. On the contrary, these are the necessary steps to ensure that environmental protection has success-oriented structures within the United Nations system...[T]he actual decision-making process remains in the hands of the 58 Governing Council members. This has a negative impact on the ‘ownership’ of the countries and consequently on the acceptance and implementation of the decisions. The conditions which are a matter of course in the Conferences of the Parties – i.e. the same right for all Parties – must also apply to the United Nations Environment Programme: all UN Member States should effectively be given the same rights in the UNEP decision-making processes. Far more countries would, as a matter of course, actively support UNEP decisions, for instance on chemicals policy, on sustainable consumption and production patterns and on post-conflict measures in trouble spots, if their governments had actually been involved in the decision-making process...The introduction of universal membership should also be accompanied by a clear improvement in UNEP's scientific basis. It is of prime importance to have international scientific consensus on the nature and extent of environmental problems, as well as on possible solutions and obstacles.” Id., at pp. 2-3.
[xcvi] Id.,at p.4.
[xcvii] Id.,at p.5.
[xcviii] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change supra, at p. 132.
[c] See “THE ENVIRONMENT IN THE NEWS”, UN Environment Program (Sept. 24, 2003) at: http://www.unep.org/cpi/briefs/Brief24Sept03.doc .
[ci] See Georgina Ayre, “REFORM OF UNEP: FORM TO FOLLOW FUNCTION”, Report of Multi-stakeholder Workshop 8th Special Session of the Governing Council/Global Ministerial Environment Forum (Jeju, Republic of Korea, March 29-31, 2004) at p.1, at: http://www.unedforum.org/publications/reports/UNEP-Ministerial.pdf .
[cii] Id., at p.3.
[ciii] Id., at p.4.
[civ] See “Constitutional Bill on the Environment Charter - Speech By Jean-Pierre Raffarin, Prime Minister, to the Meeting of Parliament in Congress”, Embassy of France in the United States (Feb. 28, 2005) at: http://www.ambafranceus.org/news/statmnts/2005/raffarin_environement_022805.asp ; “Constitutional bill on the Environment Charter - Speech by M. Jean-Pierre Raffarin, Prime Minister, to the meeting of Parliament in Congress”, French Embassy in the United Kingdom (Feb. 28, 2005) at: http://www.ambafrance-uk.org/Constitutional-bill-on-the.html .
[cv] “President Nicolas Sarkozy on Wednesday gave his backing to a far-reaching plan to liberalise the French economy and raise its trend rate of growth to 3 per cent within five years. Mr Sarkozy said he supported ‘in the main’ the conclusions of a commission chaired by Jacques Attali, the economist and former socialist presidential adviser, and would convene a ministerial committee next month to decide which of the measures to put in place first. The Attali commission produced 316 proposals to liberalise sheltered sectors of the economy, cut the cost and improve the flexibility of the labour market, and streamline public administration. ‘If some people have been alarmed by the contents of your proposals, I find them rather reasonable in the main’, Mr Sarkozy said as he received the report from Mr Attali...According to Mr Attali, Mr Sarkozy disagreed with only two of the commission’s 316 recommendations: the scrapping of the precautionary principle (conferring the benefit of the doubt against technological innovations) enshrined in France’s constitution and the abolition of the department, the revolutionary-era local government unit” (emphasis added). See Ben Hall, “Sarkozy Backs Liberalisation Plan”, Financial Times (Jan. 23, 2008) at: http://www.ft.com/cms/s/0/17d878de-c9c0-11dc-b5dc-000077b07658.html . See also Jérôme Bouin, “Sarkozy rejette deux propositions du rapport Attali”, Le Figaro Economie (Jan. 23, 2008) at: http://www.lefigaro.fr/economie/2008/01/23/04001-20080123ARTFIG00421-sarkozy-rejette-deux-propositions-du-rapport-attali.php (“Contre la suppression du principe de précaution. Le président de la République s'est également dit opposé aussi à la suppression du principe de précaution, actuellement inscrit dans la Constitution. «Proposer sa suppression au motif qu'il bride l'action repose à mon sens sur une incompréhension», a dit le chef de l'Etat. Inscrit dans la Constitution française, il peut être invoqué si le besoin d'une intervention urgente se fait ressentir face à un possible danger pour la santé ou pour la protection de l'environnement”) (emphasis added).
[cvi] See “Commission Attali: The First Proposals Raise Controversy”, AFP (Oct. 11, 2007) at: http://afp.google.com/article/ALeqM5iIkbSL5Gk4G9QyBlLMweFS993GgA . (“The first proposals of the Committee for the Liberation of French growth (CLCF) headed by Jacques Attali, which was to deliver Monday afternoon to President Nicolas Sarkozy a progress report on purchasing power, already sparked controversy. According to news published Friday, the committee members suggested including withdraw from the Constitution the ‘precautionary principle’, regarded as a brake on growth, which has resulted in a lifting of shields. The Minister of Ecology, Jean-Louis Borloo, has been strongly opposed to that suggestion Monday, recalling that ‘the precautionary principle is part of international treaties to which France has signed.’ The Secretary of State for Environment, Nathalie Kosciusko-Morizet, had earlier described the position of ‘reactionary’. ‘We must stop viewing the environment is a limit to growth,’ said she who was rapporteur of the Charter of the environment, which had included this principle in the Constitution in 2005. Since Friday, the CLCF had stressed that his proposals were ‘being finalized’ and that ‘the documents that have been released so far do not match the current proposals.’ Indeed, a draft document dated Friday, October 12 and which AFP obtained a copy refrain from any reference to the precautionary principle.” (English translation of the original French: “Selon des informations de presse publiées vendredi, les membres de la commission suggéraient notamment de retirer de la Constitution le ‘principe de précaution’, considéré comme un frein à la croissance, ce qui a suscité une levée de boucliers. Le ministre de l'Ecologie, Jean-Louis Borloo, s'est fermement opposé lundi à cette suppression, rappelant que ‘le principe de précaution fait partie de traités internationaux que la France a signés’. La secrétaire d'Etat à l'Ecologie, Nathalie Kosciusko-Morizet, avait auparavant qualifié cette position de ‘réactionnaire’. ‘Il faut cesser de considérer que l'environnement est une limite à la croissance’, a affirmé celle qui fut rapporteur de la Charte de l'environnement, qui avait inscrit ce principe dans la Constitution en 2005. Dès vendredi, la CLCF avait souligné que ses propositions étaient ‘en cours de finalisation’ et que ‘les documents qui ont pu être diffusés jusqu'ici ne correspondent pas à l'état actuel des propositions’. De fait, un document provisoire daté du vendredi 12 octobre et dont l'AFP a obtenu copie s'abstient de toute référence à ce principe de precaution”)) (emphasis added).
[cvii] See Attali, J. “Rapport de la Commission pour la libération de la croissance française.” (Report of the Commission for the liberation of the french growth), at pp. 91-93 (in French) (Jan. 23, 2008) at: http://www.liberationdelacroissance.fr/files/rapports/rapportCLCF.pdf . The English translation of this portion of the Attali Commission Report was provided to this author by Sorin Straja, Ph.D., member of the National Advisory Board of the Institute for Trade, Standards and Sustainable Development (Jan. 24, 2008). “OBJECTIVE: To rethink the precautionary principle The constitutional law n° 2005-205 of March 1st, 2005 inscribed in the constitutional text the “Charter of the environment of 2004”. It thus meets an increasing concern of the citizens with regard to their environment and testifies to the interest that the Parliament carries to these questions. However, article 5 of the Charter introduces a new provision in constitutional law, by referring to a “precautionary principle”, already present in the legislative corpus, and whose normative range remains uncertain. This reference generates judicial uncertainties and installs a context prejudicial to the innovation and the growth, because of the risks of dispute of responsibility against the most innovating companies in front of the courts of law. It also burdens with a heavy presumption the decisions of administrative police force. The need for protection is undeniable. It is established and recognized by the European texts. If the constitutional text intends to prevent the realization of damages harmful to the collectivity, its very open drafting leaves place to potentially divergent interpretations, likely to paralyze the economic activity and that of the administration. In effect, the concept of damage affecting the “environment in a gravely and irreversible way” is not defined by the constitutional text. Moreover, the reality of the “damage” is only very vaguely specified there: it is enough that its realization be “uncertain in the state of scientific knowledge” to oblige the administration to act. This fuzzy formulation opens to the judge the possibility of interpreting the founding text of the Republic. This situation is not idea from the point of view of democracy. Moreover, article 5 of the Charter of the environment risks to inhibit the fundamental and applied research, insofar as an innovation which potentially would generate a damage whose realization would be “uncertain in the state of scientific knowledge” could open recourse of responsibility, against the companies or institutes of research as well as against public collectivities charged with administrative police force. Moreover, sometimes this sanction would intervene only at the end of a long legal procedure, thus paralyzing the activity of the public and private laboratories. In addition, the administrative action itself would be very slow due to this vague formulation. In virtue of this constitutional text modified in 2005, the administration is supposed to be able to follow the whole scientific research, which appears not very realistic. Not being able to do it, the administration will thus resort very often to prohibition, the solution that is judicially the most sure, administratively the most comfortable, and the more penalizing for our growth. Finally, article 5 of the Charter of the environment is not dissociable from article 7 that imposes that the decisions of precaution be taken with the participation of the citizens. Under French reality, the precautionary principle leads to situations of indecision that are penalizing for the industrialists and, in a general way, for the long-term investment. The constitutionalisation of the principle solidifies reality and constitutes an obstacle to the growth: the legislator should be able to preserve a room for maneuver to define precise conditions of application of the principle. Consequently, it seems convenient to repeal, or if this is not possible then to very strictly specify the range of article 5 of the Charter of the environment of 2004, with respect to both the private operators and the public authorities, by a revision of the constitutional text, which will make it possible to specify the nature of the “damage” and the conditions of its compensation” (emphasis added). Id.
[cviii] See Statement by Ambassador Joao Salgueiro, Permanent Representative Permanent Mission of Portugal to the United Nations, On Behalf of the European Union, Informal Consultation Process on the Co-Chairs' Option Paper on IEG 61st Session of the General Assembly (Sept. 10, 2007), referenced in “Growing Momentum in the GA to Strengthen International Environmental Governance – Member States Respond to Options Paper”, Center for UN Reform Education at: http://www.centerforunreform.org/node/274 .
[cix] See “European Union's First Reaction on the Co-Chair’s ‘Options Paper’ on IEG”, Presented at the lnformal Consultative Process on the Institutional Framework for the UN's Environmental Activities, 62nd Session of the United Nations General Assembly (Oct. 4, 2007) at p. 2, at: http://www.centerforunreform.org/system/files/04Oct2007-PortugalEU+options+pap.PDF .
[cxi] Id., at p.3.
[cxii] Id., at p.4.
[cxiii] Id., at p.5.
[cxiv] Id., at p.6.
[cxv] ENGO = Environmental nongovernmental organization.
[cxvi] See Maria Ivanova and Jennifer Roy, “The Architecture of Global Environmental Governance: Pros and Cons of Multiplicity”, at p. 63, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.
[cxvii] Professor Ivanova currently teaches at the John C. Whitehead School of Diplomacy and International Relations.
[cxviii] See Alan Bisbort, “Critic of U.N. Environmental Program Offers Plan for Its Reform”, Environment Yale Magazine at: http://environment.yale.edu/pubs/Critic-of-UN-Environmental-Program-Offers-Plan-for-Its-Reform .
[cxix] See Maria Ivanova, “Moving Forward by Looking Back: Learning from UNEP’s History”, at pp. 26-27, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.
[cxx] “‘Global Environmental Governance – Perspectives on the Current Debate,’” is divided into three parts. Part I describes current global environmental reform proposals and initiatives at the UN. Part II presents three chapters analyzing the architecture of the current system of global environmental governance, including its origins and its strengths and weaknesses. Part III offers three contributions on policy and institutional options for the future of GEG including one chapter dedicated to the issue of climate change and its governance.” See Lydia Swart and Estelle Perry, “Introduction” at p. 2, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra..
[cxxi] See Mohamed El-Ashry, “Recommendations From the Hi-Level Panel on System-Wide Coherence on Strengthening International Environmental Goverance”, at p. 8, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.
[cxxii] See “Bio” of Mohamed El-Ashry, United Nations Foundation Website at: http://www.unfoundation.org/files/pdf/2005/Mohamed_El_Ashry_Bio.pdf .
[cxxiii] See Mohamed T. El-Ashry, “Financial Global Sustainable Development”, International Conference in Preparation for the World Summit on Sustainable Development (Copenhagen, Denmark (June 11, 2001) at pp. 6-7 at: http://www.gefweb.org/participants/Secretariat/CEO/Denmark_Speech_June_11__2001.pdf .
[cxxiv] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publications Ltd. © 2000) at p. 150, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf .
[cxxvi] See Ruben P. Mendez, Ocean Governance and Development: The Question of Financing: The Global Commons: Disputed and Encroached Areas, in Ocean Governance: Sustainable Development of the Seas, (Peter Bautista Payoyo Ed.) The United Nations University © 1994, at: http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0u.htm.
[cxxvii] See “A More Secure World – Our Shared Responsibility – Report of the High-level Panel on Threats, Challenges and Change”, United Nations (© 2004) at: http://www.un.org/secureworld/report2.pdf . “In my speech to the General Assembly in September 2003, I argued that we faced a decisive moment for the United Nations — and in particular for the aspiration set out in the Charter to provide collective security for all. I drew attention to deep divisions among the Member States on the nature of the threats that we faced and the appropriateness of the use of force to address those threats. I challenged the Member States to make the United Nations more effective. I concluded by announcing my intention to convene a high -level panel of eminent persons to provide me with a shared, comprehensive view about the way forward on the critical issues... I asked the High -level Panel to assess current threats to international peace and security; to evaluate how our existing policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty -first century.” See “Note by the Secretary-General to the General Assembly” A/59/565 (Dec. 2, 2004) at: http://www.un.org/secureworld/report.pdf .
[cxxviii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: Introduction”, in Ocean Governance: Sustainable Development of the Seas, supra.
[cxxix] “The automatic, compulsory nature of the charges would eliminate the ‘free-rider’ problem that tends to undermine voluntary funding schemes.” Id.
[cxxxi] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publications Ltd. © 2000) at p. 150, supra.
[cxxxii] See UNCLOS Section 4, Subsection G, Article 176.
[cxxxiii] See Annex, Section 2 - “The Enterprise” of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm .
[cxxxiv] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: The Global Commons: Disputed and Encroached Areas”, in Ocean Governance: Sustainable Development of the Seas, supra.
[cxxxv] See “ISA Council Begins Substantive Work on Draft Regulations On Sulphides”, International Seabed Authority Press Release SB/13/5 (July 10, 2007) at p. 3, at: http://www.isa.org.jm/files/documents/EN/Press/Press2007/SB-13-5.pdf .
[cxxxvi] See UNCLOS Section 4, Subsection G, Art. 177.
[cxxxvii] Id., at Art 178.
[cxxxviii] Id., at Art. 179.
[cxxxix] Id., at Art. 180.
[cxl] Id., at Art. 181.
[cxli] Id., at Art. 182(a).
[cxlii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing; Institutional Arrangements for Financing”, in Ocean Governance: Sustainable Development of the Seas, supra.
[cxliv] “Countries with biotechnology industries have asserted either that Part XI accommodates “bioprospecting” (biological or genetic research carried out for commercial purposes) under the high seas freedom of marine scientific research, or that UNCLOS is simply not relevant to bioprospecting. The result of either view would be international patenting of deep sea living resources on a first-come-firstserved basis. This has provoked concern by developing countries, who have expressed concern that the fruits of marine scientific research cannot be owned at all, or else ought to be viewed as ‘common heritage of mankind’ subject to ISA regulatory and revenue-sharing jurisdiction. This [author] largely avoids this debate by focusing on the question precedent: whether the need for a new deep sea intellectual property regime is felt by a sufficient plurality of nations to make a new property rules agreement a viable political and legal necessity. In answering this antecedent question in the affirmative, this [author] briefly analyzes this intersection of TRIPS and UNCLOS and finds that the Convention provides fairly clear grounds for denying patentability for products derived from pure marine scientific research and for those covering organisms themselves collected in the Area” (boldfaced emphasis added). See Peter Prows, “Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law” (July 10, 2006). NYU Law School, Public Law Research Paper No. 06-19 at pp. 55-56, Abstract at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=918458 . Cf. Chika B. Onwuekwe, The Commons Concept and Intellectual Property Rights Regime: Whither Plant Genetic Resources and Traditional Knowledge?, 2 Pierce Law Review 65-90 (March 2004) at: http://www.lawreview.piercelaw.edu/PLRarticles/vol2no1/OnwuekweCommonsconcept.pdf (distinguishes between the concept of the “commons” and closely related terms often confused with it such as ‘open access’, ‘common property,’ ‘shared resources’, and ‘communal resources’ or ‘communal property’. This article argues that PGRs [plant genetic resources] are not within the category of commons recognized under international law or any other known jurisprudence. It further contends that equating the “air” or “outer space” with “plant plasm” is a misnomer because such an approach undermines the concept of sovereign control of natural resources (renewable and non-renewable) within a country’s territory”) Id., at p. 69.
[cxlv] See Christopher Garrison, “Beneath the Surface: the Common Heritage of Mankind”, Knowledge Essentials Studies, Vol. 1 (2007) at: http://kestudies.org/ojs/index.php/kes/article/viewDownloadInterstitial/21/38 (“...considering what might happen if it were decided that the biomedical invention landscape... were to be treated as an [A]rea in accordance with the principle of the Common Heritage of Mankind... a landscape covered with a grid, where each grid square contains a discrete invention. To discover each new invention involves “exploring’ the landscape in much the same way as [A]reas of the seabed are explored... Firstly, it will not permissible for any private or public entity to ‘own’ outright any of these biomedical inventions... Secondly, biomedical inventions would have to be managed for the benefit of all humanity... Thirdly, the benefits from these biomedical inventions must be shared amongst all humanity... Fourthly, biomedical inventions must only be used for peaceful purposes. Fifthly, scientific research must be able to be freely carried out and the results of this research, freely published in accordance with the scientific method, for the benefit of all humanity”) (emphasis added). Id., at pp. 76-77, and 79.
[cxlvi] See Section V, infra.
[cxlvii] “[S]ome countries within the group stressed that the benefits arising from marine genetic resources should be shared with developing countries by expanding the jurisdiction of the International Seabed Authority (ISA) or through new international regulations. While they pointed to article 136 of the UN Convention on the Law of the Sea as justification for the relevance of the common heritage of mankind to marine genetic resources, the US and Japan argued that this regime applies only to mineral resources whereas marine genetic resources should be subject to the freedom of the high seas principle, namely that the high seas are open to all States, and pointed to article 87 of UNCLOS to justify their position.” See “Legal Status of Marine Genetic Resources in Question”, Bridges Trade BioRes Vol. 6, No. 4 (March 3, 2006) at: http://www.ictsd.org/biores/06-03-03/inbrief.htm .
[cxlviii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing; Institutional Arrangements for Financing”, in Ocean Governance: Sustainable Development of the Seas, supra.
[cl] “[I]nternational taxes could be levied on specific traded commodities, such as internationally traded oil, other exhaustible hydrocarbons such as coal and natural gas, mineral raw materials, such as aluminum, copper, iron, lead, nickel, manganese, tin, and zinc and on international passenger and freight transport.” See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: Specific Proposals”, supra, at: http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0t.htm#specific%20proposals .
[cli] “Such leases, however, should be granted only on a long-term, even a quasi-perpetual, basis so that there would be an incentive to maintain the resources of the areas under lease rather than to overexploit them. For example, fishing nations could be assigned specific areas of the oceans in which only fish of a particular species, e.g. tuna, might be caught. As payment for the benefits derived available to some nations but not to others - user charges in the form of leases would be imposed.” Id.
[clii] “The cost of the permits would equal the marginal cost (to society and the environment) of the pollution. This method is used in nation-states and smaller political entities such as States and cities of the United States of America. The advantage of permits to pollute is that the polluters would pay according to the amount of damage they inflict on the environment, which would not be true of across-the-board regulation...A market for trading in such permits exists in the United States. A global market is also a possibility” (emphasis added). Id.
[cliii] Outer Continental Shelf Lands Act of 1953 (43 U.S.C. 1331 - 1356, P.L. 212, Ch. 345, August 7, 1953), as amended. “The 1953 statute defines the Outer Continental Shelf (OCS) as all submerged lands lying seaward of State coastal waters (3 miles offshore) which are under U.S. jurisdiction. The statute authorized the Secretary of Interior to promulgate regulations to lease the OCS in an effort to prevent waste and conserve natural resources and to grant leases to the highest responsible qualified bidder as determined by competitive bidding procedures”... Since its original enactment in 1953, the OCSLA has been amended several times, most recently as a result of the Energy Policy Act of 2005. Amendments have included, for example, the establishment of an oil spill liability fund and the distribution of a portion of the receipts from the leasing of mineral resources of the OCS to coastal states” (emphasis added). See “Outer Continental Shelf Lands Act”, Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service at: http://www.fws.gov/laws/lawsdigest/OUTCONT.HTML ; “OCS Lands Act History”, Minerals Management Service, U.S. Department of the Interior website at: http://www.mms.gov/aboutmms/OCSLA/ocslahistory.htm . Pursuant to a related law, “The Submerged Lands Act” (43 U.S.C. §§1301-1315 (1953)), as amended, “Congress sought to return the title to submerged lands to the states and promote the exploration and development of petroleum deposits in coastal waters...[and] natural resources...includ[ing] oil, gas, and all other minerals... Title II addresses the rights and claims by the States to the lands and resources beneath navigable waters within their historic boundaries and provides for their development by the States. Title III preserves the control of the seabed and resources therein of the Outer Continental Shelf beyond State boundaries and to the federal government and authorizes leasing by the Secretary of the Interior...” See “OCS Lands Act History”, Minerals Management Service, U.S. Department of the Interior website, supra at: http://www.mms.gov/aboutmms/pdffiles/submerged.pdf . In effect, the SLA grants coastal states title to offshore lands within their historic boundaries, generally up to three miles from the coastline, as well as the rights to the natural resources on or within those lands. The federal government relinquishes its claims to the lands and resources, but maintains the right to regulate offshore activities for national defense, international affairs, navigation, and commerce. The Act grants coastal states title to offshore lands within their historic boundaries, generally up to three miles from the coastline, as well as the rights to the natural resources on or within those lands. The federal government relinquishes its claims to the lands and resources, but maintains the right to regulate offshore activities for national defense, international affairs, navigation, and commerce.” See “Submerged Lands Act - Summary”, Fish & Wildlofe Service Handbook at: http://ipl.unm.edu/cwl/fedbook/sublands.html .
[cliv] However, it must not be forgotten that the U.S., under the stewardship of former President Carter, had previously enacted the Deep Seabed Hard Minerals Resources Act (30 U.S.C. 1441 et. seq.) and the Deep Seabed Revenue Sharing Trust Fund (26 U.S.C. 1472) which, not only anticipated US ratification of the UNCLOS or some other international deep seabed treaty, but also established an interim licensing and permitting regime that provided for the sharing of such deep seabed mining revenues with other nations as required by such a treaty. The Deep Seabed Hard Mineral Resources Act (DSHMRA) (Public Law 96-283, 30 U.S.C. 1441 et seq.), was signed by President Carter on June 28, 1980, and remains on the books as of 2006. It reflected the then congressional purpose “to encourage the successful conclusion of a comprehensive Law of the Sea Treaty, which will give legal definition to the principle that the hard mineral resources of the deep seabed are the common heritage of mankind and which will assure, among other things, nondiscriminatory access to such resources for all nations... to establish, pending the ratification by, and entering into force with respect to, the United States of such a Treaty, an interim program to regulate the exploration for and commercial recovery of hard mineral resources of the deep seabed by United States citizens; to accelerate the program of environmental assessment of exploration for and commercial recovery of hard mineral resources of the deep seabed and assure that such exploration and recovery activities are conducted in a manner which will encourage the conservation of such resources, protect the quality of the environment, and promote the safety of life and property at sea...” (emphasis added). See 30 U.S.C. 1401 (b)(1),(3) and (4). The DSHMRA established “an interim domestic legal regime for deep seabed mining pending adoption of an acceptable international regime, [including]...a licensing [and permitting] regime [30 U.S.C. 1411-1424] that ensures protection of the marine environment, safety of life and property at sea, prevention of unreasonable interference with other uses of the high seas, and conservation of mineral resources... The DSHMRA set forth criteria that would need to be met for an international regime to be acceptable to the U.S., namely, assured and nondiscriminatory access to deep seabed resources for U.S. citizens and assured continuity in mining activities undertaken by U.S. citizens prior to entry into force of an international regime under terms, conditions, and restrictions that do not impose significant economic burdens. [The] DSHMRA also recognize[d] that a treaty must be judged by the totality of its provisions. The Agreement to implement Part XI of the United Nations Convention on the Law of the Sea revises Part XI in a manner that satisfies these criteria” (emphasis added). See “Deep Seabed Hard Mineral Resources Act”, NOAA website at: http://maps.csc.noaa.gov/RoisDatabaseEntry/lawDetails.jsp?lawID=74 .** 30 USC 1414 provided that the “license and permit fees...be deposited into miscellaneous receipts of the Treasury.” 30 U.S.C. 1472(a) provides for the creation of trust fund to be known as the ‘Deep Seabed Revenue Sharing Trust Fund’. In particular, readers will be interested in 30 U.S.C. 1472(d), entitled, “Expenditures from Trust Fund”, which provides that, “If an international deep seabed treaty is ratified by and in effect with respect to the United States on or before the date ten years after June 28, 1980, amounts in the Trust Fund...[i.e., the amount of licensing and permit fees ‘appropriated to the Trust Fund [and]...determined by the Secretary of the Treasury to be equivalent to the amounts of the taxes received in the Treasury under [former Internal Revenue Code – 26 U.S.C.] section 4495’ [which has since been repealed]...shall be available, as provided by appropriations Acts, for making contributions required under such treaty for purposes of the sharing among nations of the revenues from deep seabed mining.” See 30 U.S.C. 1472(b).
[clv] The outer continental shelf area is defined as “The area of sea-bed and subsoil ranging from the 200 nautical mile EEZ limit to the seaward limit of the legal continental shelf, incorporating the geological continental shelf, rise, slope and margin but not including the superjacent water column above it. However, it shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.” UNCLOS Art. 76(5).
[clvi] UNCLOS Article 82.
[clvii] UNCLOS Article 82(4).
[clviii] See Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009) at pp. 61-70, abstract and working paper available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 .
[clix] “The International Seabed Authority is responsible for organizing and controlling all mineral-related activities that take place in the international seabed area. This is an enormous task: the ocean floor in the international seabed area covers more than 50 per cent of the world’s surface! It includes all the seabed areas beyond the 200-mile-limit exclusive economic zones of every country around the world. Mineral-related activities are highly diverse. Prospecting may target polymetallic nodule deposits and sulphides on the ocean floor or minerals embedded in cobalt-rich crusts. Mining may take place in depths of up to 6,000 metres and along biologically rich ocean floor areas, such as seamounts and hydrothermal vents. The International Seabed Authority is required to manage these activities. This includes managing the environmental impacts to ensure that mining activities do not cause undue harm to ocean biodiversity as well as ensuring that all countries share the benefits from the economic value of mineral resources. The mandate of the International Seabed Authority is sufficiently broad to address these and other issues. While the Authority aims to encourage the development of seabed mineral resources, for example, it also works to ensure that biodiversity within the marine environment is sustained. To maintain this balance, the Authority encourages and promotes marine scientific research in the international seabed area. The Authority also requires that research and scientific knowledge gained in this area be shared amongst the international science community so scientists around the world can benefit from the findings. This concept of ‘common heritage’ is an important overriding principle of the International Seabed Authority. The international seabed area and its resources are designated as the common heritage of all mankind. The Authority ensures that any economic benefits gained from extracting mineral resources in the area are shared between mining companies or entities and the international community. Any scientific understanding gained through deep-seabed research is also shared within the international scientific community” (emphasis added). See Michael W. Lodge, Collaborative Marine Scientific Research on the International Seabed, Journal of Ocean Technology (© 2008) at pp. 30-31, at: http://www.isa.org.jm/files/documents/EN/efund/JOT-article.pdf .
[clx] Pigovian taxes are discussed in greater depth in a subsequent section of this paper.
[clxii] See Annex, Section 2 - “The Enterprise” of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994), supra.
[clxv] “Although nations are jealous of their sovereignty, and do not readily submit to international authority, compulsory payments to the regular budgets of public international organizations have already been agreed to universally, in principle if not always in practice. In the World Bank and the International Monetary Fund the financial obligations of membership are punctiliously observed. Many political leaders and students of political economy raised the need for a more equitable distribution in the wealth of nations - for a narrowing of the gap between the rich and poor nations - and for international development assistance and economic cooperation. These led to the sprouting of a variety of international assistance programmes after the end of World War II.” Id.
[clxvi] “Perhaps the strongest precedent can be found in the European Community, where a true system of international taxation is already in full practice. Under this system, members of the EC pay 1 per cent of their value added tax (VAT) income to the European Commission, with the percentage increasing gradually over the years as Europe-wide legislation supersedes national legislation. This system could serve as a model for financing worldwide institutions such as the United Nations and its affiliated agencies. It illustrates the quickening pace and possibilities of institutional change in the fields of international political and economic relations.” Id.
[clxvii] See “OECD Development Assistance Committee (1996) Guidelines for Aid Agencies on Global and Regional Aspects of the Development and Protection of the Marine and Coastal Environment, Guidelines on Environment and Aid”, No. 8, supra at p. 18.
[clxviii] “One approach is a levy on individuals/organisations for discharging effluents. Dischargers should be charged a realistic user fee. Alternatively, authorisation for discharge may be issued in the form of tradable permits, as this would stimulate reduction and recycling of waste, and application of non- or less-polluting technologies. However, tradable permits do not take into account the location of the permitted source since in trading that varies and discharges from one location could be more harmful than those from another site. In addition, a charge could be levied on people/organisations moving certain residential, commercial or industrial activities to the coastal zone.” Id., at p. 19.
[clxxi] “User fees, charges for violating pollution control measures, pricing policies, fiscal incentives and taxes, have a major advantage over other fiscal and economic measures. They are automatic mechanisms which, when combined with appropriate institutional and regulatory arrangements, provide an effective vehicle for financing environmental protection.” Id., at p. 20.
[clxxii] See “NGO Paper 1 - New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Commission on Sustainable Development (CSD) NGO Finance Caucus (Feb. 2000) at: http://csdngo.igc.org/finance/fin_pos_paper1.htm .
[clxxiii] “The CSD NGO Finance Caucus calls for the Financing for Development High-Level Event in 2001 to further investigate the following suggestions for global revenue...  A tax on all or some international financial transactions (Tobin-like tax);  Taxes on specified traded commodities like fuel;  A tax on the international arms trade ;  A charge on international flights with departures and destinations in OECD countries;  Royalties on minerals mined in international waters;  Parking charges for satellites placed in geostationary orbit;  Charges for fishing international waters;  Charges for use of the electromagnetic spectrum (e.g. television, radio) in OECD countries;  Pollution charges;  A tax on traded pollution permits” (emphasis added). Id.
[clxxiv] See Peter Mountfield and Felix Dodds, “New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Draft NGO Position Paper, NGO Steering Committee to the United Nations Commission on Sustainable Development (Feb. 2000) at: http://csdngo.igc.org/finance/fin_paper_1_NFM.htm .
[clxxvi] “Some suggestions for global revenue (Taken from Overseas Development Institute Briefing Paper and UNDP Human Development Report) [include]: 1. A tax on all or some international financial transactions (Tobin Tax) Variants include a tax on bond turnover, or on derivations [;] 2. Bit Tax - on Internet messages the suggestion is 1 cent per 100 messages [;] 3. A general surcharge on international trade [;] 4. Taxes on specified traded commodities like fuel [;] 5. A tax on the international arms trade [;] 6. A charge on international flights [-] A variation is a tax on aviation kerosene [;] 7. Surcharges on post and telecommunication revenues [;] 8. An international lottery [tax;] 9. A surcharge on domestic taxation (usually expressed as a progressive share of income tax [;] 10. Royalties on minerals mined in international waters [;] 11. Parking charges for satellites placed in geostationary orbit [;] 12. Charges for exploration in or exploitation of Antarctica [;] 13. Charges for fishing international waters [;] 14. Charges for use of the electromagnetic spectrum [;] 15. A tax or charge on international shipping [;] 16. Pollution charges (eg dumping at Sea) [;] 17. A tax on traded pollution permits [;] 18. A voluntary local tax paid to central global agency [;] 19. Sale of part of the IMF gold stock [;] 20 Dedication of some part of national or local taxes eg on luxuries (or surcharges on them)” (emphasis added). See Peter Mountfield and Felix Dodds, “New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Draft NGO Position Paper, supra.
[clxxvii] See “German Advisory Council on Global Change – Mission”, at: http://www.wbgu.de/wbgu_auftrag_en.html .
[clxxviii] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publ. © 2000) at p. 149, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf .
[clxxix] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change, supra , at p. 5.
[clxxx] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change, supra , at p. 1.
[clxxxi] Id., at p. 8.
[clxxxii] Id., at pp. 8 and 181.
[clxxxiii] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WGBU) Special Report, supra at p. 30.
[clxxxiv] “The Council therefore takes the view that user charges should initially only be levied for all ships that call at ports in the industrialized countries. The fact that the majority of ocean transport ends or begins in industrialized countries means that the main shipping parties would be included. In parallel, levying user charges may also serve as a clear signal of the willingness of the industrialized countries to contribute to financing global sustainability if the funds were deployed accordingly. If a system of levying user charges was applied in industrialized countries only, it seems reasonable that such a system should be established within the framework of the OECD – in substantive coordination with the IMO – without, however, limiting the participants to OECD members... Discussions on levying a charge on shipping fuel as a way to promote environmentally sound ships are primarily focused on the imposition of a comprehensive CO2 levy. The incentive effect of a charge on heavy oil will depend largely on the level of the charge... Alternatively a direct CO2 levy may be imposed upon ship operators. The charge could be imposed by port officials in conjunction with the harbour dues, on the basis of the origin of the relevant freight... The Council favours levying a new, environmentally differentiated charge to be paid on an annual basis... The charging system proposed by the Council is based primarily upon the deadweight tonnage of ships and the power of ship engines. It is not based upon the length of the journey completed because the recording and accounting processes would require much evidential documentation and extensive calculations. The ship is deemed to be in service for the whole year exerting a permanent adverse effect on the environment. All measures taken to reduce adverse environmental effects and to improve safety are taken into detailed consideration as ‘Quality Shipping’ measures leading to a bonus in the charge calculation. To identify Quality Shipping aspects, a catalogue containing 19 criteria grouped in three categories is proposed. These categories are: shipping company policy and management; ship design, construction and equipment; and the management and technology of operations on board ship. The catalogue was drawn up by the German Institute for Environmental Protection and Safety in Shipping (GAUSS –Gesellschaft für Angewandten Umweltschutz und Sicherheit im Seeverkehr). All these criteria can be evidenced by already existing internationally accepted certificates and documents, which leads to a rapid and straightforward monitoring process. Id., at pp. 25-27.
[clxxxv] Id., at p. 2.
[clxxxvi] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WBGU) Special Report, supra at p. 4. “The present proposal by the Council builds upon the concepts previously recommended (WBGU, 2001b). This proposal should not be confused with the levying of a global tax on CO2 emissions, such as has been proposed in the run-up to the UNFfD in the Zedillo Report produced by the High-level Panel on Financing for Development (High-level Panel on Financing for Development, 2001).While the Zedillo Report proposal is certainly worthy of consideration, the concept of user charges differs in several respects. It is not based upon an international taxation approach, but upon a narrower understanding of charges in conjunction with an earmarking of revenue – consequently, its prospects of political viability are substantially better than those of taxation.” Id.
[clxxxviii] See “Legal Aspects of User Charges on Global Environmental Goods”, Executive Summary, Ecologic Institute for International and European Environmental Policy (Nov. 13, 2005) at: http://www.ecologic.de/download/projekte/1850-1899/1886/1886_summary.pdf .
[clxxxix] Id., at p. 2.
[cxci] Id., at p. 5.
[cxcii] See “PA’s Coming Transportation Taxes: When a “User Fee” is a ‘Tax’”, Commonwealth Foundation for Public Policy Alternatives (July 17, 2007) citing Matthew J. Brouillette, president of the Commonwealth Foundation, at: http://www.commonwealthfoundation.org/newsreleases/pa-s-coming-transportation-taxes-when-user-fee-tax .
[cxciii] See Lawrence W. Reed, “User Fees and Taxes: What’s the Difference?”, Mackinac Center for Public Policy (Jan. 20, 1992) at: http://www.mackinac.org/190 .
[cxciv] See Lawrence W. Reed, “A Tax is Not a User Fee”, The Freeman: Ideas on Liberty, Vol. 49 No. 6 (June 1999) at: http://www.fee.org/Publications/the-Freeman/article.asp?aid=4409 .
[cxcv] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WBGU) Special Report, supra at pp. 3-4.
[cxcvi] See Jonathan Williams “Gasoline Taxes: User Fees or Pigouvian Levies?”, Commentary, Tax Foundation (Nov. 27, 2006) at: http://www.taxfoundation.org/news/show/2048.html .
[cxcvii] “Certain types of Pigovian taxes are sometimes referred to as sin taxes, for example taxes on alcohol and cigarettes. Sin taxes are often enacted for special projects — American cities and counties have used them to pay for stadiums — when increasing income or property taxes would be politically inviable. The proper name for such taxes is sumptuary tax.” See “Pigouvian Tax”, Wikipedia at: http://en.wikipedia.org/wiki/Pigovian_tax .
[cxcviii] See Bruce F. Davie, “Sumptuary Taxes”, in The Encyclopedia of Taxation and Tax Policy Second Edition, (Joseph J. Cordes, Robert D. Ebel, and Jane G. Gravelle Eds.) Urban Institute (© 2005) at: http://www.urban.org/books/TTP/davie.cfm .
[cxcix] “N. Gregory Mankiw, Harvard professor and former Chairman of the Council of Economic Advisers... publicly advocated higher Pigouvian taxes, such as gasoline taxes or carbon taxes.” Mankiw has advocated phasing in a $1 per gallon increase in Pigouvian gasoline taxes over a decade to correct for social costs created by gasoline consumption – specifically relating to national security, traffic congestion and pollution. In theory, using Pigouvian taxes is efficient and straightforward, but in practice, the Pigouvian solution is anything but simple. One important problem often ignored by advocates of Pigouvian taxes is what is typically referred to as the “knowledge problem.” That is, if gas taxes should be raised purely to offset the social costs of gasoline consumption, how high are those social costs, how would policymakers attempt to quantify them on an ongoing basis, and how high of a tax would be necessary to compensate for them? Clearly, the practical difficulty of compiling data and estimating social costs is not trivial. Pigouvian taxes place enormously high information burdens on policymakers. Policymakers looking for social cost estimates in the economic literature will find results that vary widely... Additionally, what level of total social welfare loss would Americans experience if policymakers overestimate the costs of externalities and implement an excessive Pigouvian tax? Those hit hardest would be the lower-income Americans who are already disproportionately harmed by the regressive nature of gasoline taxes. On the other hand, what convinces proponents of Pigouvian taxes that $1 per gallon would be enough to solve the plethora of harms that “under-priced” gasoline is said to create?.. Even if policymakers were able to solve the “knowledge problem” that plagues Pigouvian taxes, finding the optimal policy solution for environmental externalities from fossil fuels may require additional analysis. For instance, even if a government-appointed central actor could somehow ascertain the “correct” tax rate that internalizes negative externalities from pollution, gasoline is probably the incorrect base for that tax. If the objective is to internalize environmental costs from fossil fuels, why not focus on carbon emissions directly?... Raising gasoline taxes for Pigouvian purposes advances a dangerous view of tax policy, where government attempts to use the tax code as a tool to centrally plan economic decisions. The fundamental purpose of taxes is to raise necessary revenue for government programs, not micromanage a complex market economy with subsidies and penalties. The tax system’s central aim should be to minimize distortions in the economy, and to interfere as little as possible with the decisions of free people in the marketplace.” See Jonathan Williams “Gasoline Taxes: User Fees or Pigouvian Levies?”,supra.
[cc] See Bernie Fischlowitz-Roberts, “Restructuring Taxes to Protect the Environment”, Earth Policy Institute (2002) at: http://www.earthpolicy.org/Updates/Update14.htm . Actually, France, Belgium, West Germany... Denmark and the European Commission have, as far back as 1990, called for environmental carbon taxes. “Environment ministers of the European Community found little common ground when they met in Rome last weekend to explore the use of taxes and other economic means of cleaning up the environment... Spain and Ireland feared that taxes on dirty technology would hamper their efforts to 'catch up' economically with the rest of Europe - but Greece supported environmental taxes. France, Belgium, West Germany and Denmark called for a 'carbon tax' to reduce emissions of carbon dioxide, the main greenhouse gas. The Danes called for a tax on CFCs, which destroy ozone and are also greenhouse gases...West Germany will shortly become the first country in Europe to impose a financial disincentive on carbon dioxide emission, but it will not be a tax. The environment minister, Klaus Topfer, announced that he would ask the German parliament in November to impose a duty on carbon dioxide emissions of 10 Deutschmarks (Pounds sterling 2.85) per tonne. Payments would be collected in a special fund, worth some 5 billion Deutschmarks per year, to be invested in energy-efficient technology. The European Commission itself supported community-wide taxes on carbon emissions at the Rome meeting. Its discussion document argued that 'to avoid economic distortions between member states . . . a common framework for charging/taxing greenhouse gas emissions should be...agreed at Community level'... Holland opposed harmonised taxes for fear that they would be too weak, and would dilute its ambitious plans for environmental tax incentives and other financial measures. Belgium, France, West Germany and Denmark supported such 'harmonised' taxation.” See Debora Mackenzie, “As Europe's Ministers Fail to Agree on Framework for Green Taxes”, The New Scientist Environment (Sept. 29, 1990) at: http://environment.newscientist.com/article/mg12717360.900----as-europes-ministers-fail-to-agree-on-framework-forgreen-taxes-.html .
[cci] See Jan Kees de Jager, “Modernization of Tax Systems: Instrument for Sustainable Economic Growth”, Speech by the State Secretary for Finance, The Netherlands at the Brussels Tax Forum, 20 March 2007, at pp. 1-2, at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/taxforum_2007/de_jager.pdf .
[ccii] See László Kovács, EU Commissioner for Taxation and Customs Union, Europa Website at: http://ec.europa.eu/commission_barroso/kovacs/index_en.htm .
[cciii] *See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final (3/28/07) Box C.8: Classification and features of environmental taxes, p. 414, at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0140en01.pdf .
[cciv] See László Kovács, “Taxation for Sustainable Development”, Opening Speech, Brussels Tax Forum (March 19, 2007) at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/kovacs_taxforum_190307.pdf .
[ccv] See “Curriculum Vitae” of László Kovács, EU Commissioner for Taxation and Customs Union, Europa Website at: http://ec.europa.eu/commission_barroso/kovacs/my_profile/index_en.htm .
[ccvi] *See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES, supra at: p. 3..
[ccvii] Id., at pp. 3-4.
[ccviii] Although “EU tax levels remain generally high in comparison with the rest of the world, with the EU27 tax ratio exceeding those of the USA and of Japan by some 13 percentage points...environmental tax revenues have been declining since 1999; their 2005 level, 2.6% of GDP, is the lowest in ten years. This drop is due to lower energy taxation, as revenues from the other environmental taxes have remained stable” (emphasis added). See “Taxation trends in the EU Rise in Overall Tax Burden in the EU27 to 39.6% of GDP in 2005”, European Union Press Release STAT/07/89 (June 26, 2007), Europa Website at: http://europa.eu/rapid/pressReleasesAction.do?reference=STAT/07/89&format=HTML&aged=0&language=en&guiLanguage=en .
[ccix] “The EU is, taken as a whole, a high tax area. In 2005, the last year for which detailed tax data are available, the total tax ratio in the EU-27 amounted to 39.6 % (in the GDP-weighted average; see Table Tot_G in Annex A), about 13 percentage points of GDP above those recorded in the United States and Japan. The EU tax-to-GDP ratio is high not only compared with these two countries but generally; among the major non-European OECD members, only New Zealand has a tax ratio that exceeds 35 per cent of GDP1)... “Currently, roughly one euro out of every fifteen in revenue derives from environmental taxes. Data...show that while environmental tax revenues have increased considerably, particularly in the 1990-1994 period, in the last five years they have been on the decline, at least in the EU-15. This trend continued in 2005. In contrast, in the 12 newly acceded Member States, which originally levied low environmental taxes, revenues from this kind of taxes have shown a strong progression over time, so that by now there is practically no difference vis-à-vis the EU-15 in this respect; but this was not enough to offset the decline in the EU-15” (emphasis added). See Taxation Trends in the European Union: Data for the EU Member States and Norway”, Eurostat Statistical Books (2007 Edition) Executive Summary at pp. 7 and 9, at: http://ec.europa.eu/taxation_customs/resources/documents/taxation/gen_info/economic_analysis/tax_structures/Structures2007.pdf .
[ccx] The reader, at this point, should not overlook the indelible impression that the philosophy of eighteenth century Frenchman, Claude Adrien Helvetius had left on the European social behaviorists of his time, and apparently, now, the politicians of today. Helvetian-favored communalism and utilitarian logic are most definitely the driving force behind the current indoctrination climate under which European cultural preferences are being converted into an almost universal and unquestioning acceptance of national, regional, and potentially, supranational governmental mandates to employ the hazard-based precautionary principle in every day economic life. Helvetius “advocated legislation...as the means by which happiness for the greatest number would be achieved.” See Eric Samuelson, A BRIEF CHRONOLOGY OF COLLECTIVISM (1997) at:
[ccxi] “Men develop according to the cultural pressures to which he is subject. Education accounts for all differences between individuals and must be utilized to realize ‘the ideal of general intelligence, virtue, and happiness’... In [Helvetius’] system, the only pleasure that is immoral is one that conflicts with the pleasure of the greatest number... The final test of any action, then, is its utilitarian value - its use to the public. The ideal government, he believed, would bring the greatest happiness to the greatest number, and universal education would make children useful to such a society. He advocated legislation of punishments and rewards to force men to contribute to public welfare. Under such a system, he felt only madmen could prevent themselves from being good citizens. Individual preferences and rights are lost to Helvetius in the all-consuming importance of public interest” (emphasis added). Id., citing Mordecai Grossman, THE PHILOSOPHY OF HELVETIUS 16 (1926). Hence, the wisdom of Helvetius has permeated the Brussels bureaucratic mindset, which has recognized how cultural pressures influenced by individual perceptions of others’ preferences and by the educational power of universally applicable (national, regional and international) laws, regulations and standards can help shape societal behavior in ways that may facilitate government’s fulfillment of socially and politically desirable policy objectives. It is therefore only in this light that one can truly appreciate why people would ever clamor for more rather than less regulation and taxation.
[ccxii] See “The Role of Taxation in Sustainable Development: A Shared Responsibility for Developing and Developed Countries”, Institutional Approaches to Policy Coherence for Development - OECD Policy Workshop (May 18-19 2004) at p. 6, at: http://www.oecd.org/dataoecd/24/25/31744387.pdf .
[ccxiii] See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final supra, at p. 2.
[ccxiv] Id., at p.5.
[ccxv] See Jan Kees de Jager, “Modernization of Tax Systems: Instrument for Sustainable Economic Growth”, Speech by the State Secretary for Finance, The Netherlands at the Brussels Tax Forum, 20 March 2007, at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/taxforum_2007/de_jager.pdf .
[ccxvi] “In 2005, revenues from environmental taxes in the EU-27 (in the GDP-weighted average) accounted for 2.6 % of GDP and for 6.6 % of total revenues. Compared to 1980, when environmental taxes accounted for 0.5 % of GDP43), the increase is significant. However, in the EU-15, the main increase took place between 1990 and 1994 and was largely driven by the above-average increase of energy taxes; in the recently acceded Member States the situation is different as the increase in environmental taxes usually took place somewhat later and was partly linked with the EU accession process. Since the year 1999 environmental tax revenues, in the weighted average, have slightly decreased both in relation to GDP and as a share of total taxation; this overall decline is due essentially to the trend in the larger Member States, as the simple arithmetic average does not show any decline in revenue.” See Taxation Trends in the European Union: Data for the EU Member States and Norway”, Eurostat, supra at p. 109.
[ccxvii] Id., at p. 112.
[ccxviii] See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final supra, at p. 5.
[ccxix] “It is also worth pointing out that the decrease in environmental tax revenues on GDP in recent years could be due in part to innovations in policy instruments. An example of this could be represented by an increased recourse to road pricing systems accompanied by a reduction in lump-sum car circulation taxes (which, by not affecting the cost per kilometre, have a lower impact on emissions). In this case, environmental tax revenues – specifically, the car registration tax – are reduced. The revenues of the charges for using roads increase, but this does not translate into higher tax revenues because these are not booked as taxes. CO2-emissions trading will probably also translate into less environmental tax revenues and a diminishing tax–to-GDP ratio.” Id.
[ccxx] “In its 6th Environmental Action Programme, the European Community argued for a broadening of the range of policy instruments beyond environmental legislation. These should include increased use of market-based instruments, such as environment taxes, aiming to internalise external environmental costs and thereby stimulate both producers and consumers towards limiting environmental pressure and towards responsible use of natural resources. In October 2003, after six years of negotiations in the Council, the Directive (2003/96/EC) for restructuring the Community framework for the taxation of energy products and electricity was adopted by the Council. The Directive extended the Community system of minimum rates to coal, natural gas and electricity, and increased the existing minimum rates from their 1992 level to some extent.” Id., at p. 109, fn # 42.
[ccxxi] “Britain is to push for pollution from the global aviation and shipping industries to be included in a new international agreement on climate change at a meeting in Bali... Action on greenhouse gas emissions from international travel and trade is among eight points that British and European negotiators intend to pursue at the meeting, which aims to set the framework for a global treaty to replace the Kyoto protocol when it runs out in 2012... Kyoto does not include carbon emissions from international aviation and shipping... Europe is concerned that the expected rises in aviation and shipping emissions could cancel out gains made elsewhere, though officials concede any agreement to regulate them worldwide would be difficult to achieve... Joseph Zacune, international climate campaigner with Friends of the Earth, said: ‘Industrialised nations must commit to stringent targets and timetables that ensure emissions peak by 2015 and continue to fall. ‘A comprehensive range of mitigation and adaptation efforts are needed, including changes in the lifestyle and unsustainable consumption patterns of the richer industrialised nations...’” See David Adam, “UK to Seek Pact on Shipping and Aviation Pollution at Climate talks - Europe to Put Forward Eight-point Plan at Meeting on Replacing Kyoto Protocol”, Guardian Unlimited (Dec. 3, 2007) at: http://www.guardian.co.uk/environment/2007/dec/03/climatechange.greenpolitics . “Rich and poor differed on Sunday over how to open up trade in green goods, with Brazil fearing a major U.S.-EU proposal raised on the fringes of climate talks in Bali was a protectionist ruse... Pakistan and Brazil voiced reservations on Sunday over a move to cut tariffs on clean technologies, such as wind power and solar panels, meant to help reduce the cost of curbing greenhouse gas emissions blamed for global warming. They suspect the measure's real intention is to boost exports from rich nations... World Trade Organisation chief Pascal Lamy said developing countries, such as Indonesia, Malaysia and Thailand, were leaders in some clean technologies and would benefit from free trade in environmental goods. CARBON TAXES He also said trade rules could be tweaked to help curb the output of greenhouse gases, for example taking into account carbon taxes and subsidies, or minimum environmental standards. But that would have to be under the framework of an international climate change pact, he said. ‘The relationship between international trade and indeed the WTO and climate change would be best defined by a consensual, international agreement on climate change that successfully embraces all major polluters,’ Lamy said. The Bali climate talks aim to find ways to include outsiders such as top carbon emitters the United States and China in the fight against rising greenhouse emissions scientists say will lead to more droughts, floods, heatwaves and rising seas.” See Gerard Wynn and Adhityani Arga, “Nations Bicker in Bali Over ‘Green’ Goods Trade”, Reuters (Dec. 9, 2007) at: http://www.alertnet.org/thenews/newsdesk/SP210166.htm ; “New York City Mayor Michael Bloomberg, who has won praise for his ambitious sustainability plan for the largest U.S. city, said that a carbon tax, as compared to regulation-heavy carbon trading, would be a much more efficient and fair way to limit greenhouse gas pollution, the Associated Press reported. He made his comments in Bali where the United Nations is wrapping up a contentious summit on global warming that is intended to draft a roadmap for updating the global climate change treaty.” See Dan Shapley, “Bloomberg, in Bali, Calls for Carbon Tax”, The Daily Green (Dec. 14, 2007) at: http://www.thedailygreen.com/environmental-news/latest/bloomberg-global-warming-47121403 ; “New York City Mayor Michael R. Bloomberg, at a U.N. climate conference drawing hundreds of emissions traders, said Thursday the growing carbon cap-and-trade industry is vulnerable to ‘special interests, corruption, inefficiencies,’ and should be replaced by straight carbon taxes. Speaking of global warming, Bloomberg said, ‘Most experts would agree that the way to solve the problem is with a carbon tax.’ The Kyoto Protocol, requiring 37 industrial nations to reduce carbon dioxide and other industrial, transportation and agricultural emissions, has given rise in Europe and elsewhere to carbon cap-and-trade systems, under which businesses that don't use up quotas of emission allowances sell them to others who need them to overshoot their ceilings. That in turn has given rise to a multibillion-dollar global industry of brokers, analysts and project managers dealing in such carbon credits and ‘green’ projects that produce them...[Carbon trading ‘is attractive to many politicians because it doesn't have that three-letter word tax. But it's a very inefficient way to accomplish the same thing that a carbon tax accomplishes,’ he said. ‘It leaves itself open to special interests, corruption, inefficiencies.’ See “Carbon Tax Should Replace Carbon Trading to Curb Climate Change, Says US Mayor Bloomberg”, Associated Press (Dec. 14, 2007) at: http://www.iht.com/articles/ap/2007/12/13/asia/AS-GEN-Bali-NY-Mayor.php .
[ccxxii] “The United States warned the European Union yesterday against using climate change as a pretext for protectionism, setting the stage for trans-Atlantic tension over a new package of EU measures to combat global warming. The pointed comments by the US trade representative, Susan Schwab, after talks in Brussels, came just two days before the European Commission introduced its proposals for cutting EU emissions at least 20 percent from 1990 levels by 2020. ‘We have been dismayed at a variety of suggestions where we have seen the climate and the environment being used as an excuse to close markets,’ Schwab said after discussions with Peter Mandelson, her European counterpart. President Nicolas Sarkozy of France has called for a carbon tax on imports to ensure that European companies that need to comply with tough environmental rules are not undercut by foreign competitors whose governments are not capping carbon emissions. EU officials were not expected to propose such a measure tomorrow but were expected to keep alive the possibility of a so-called border tax to keep European industries competitive. The EU pledge to protect European industry by 2011 at the latest will be aimed at assuaging powerful lobby groups from sectors like steel and aluminum manufacturing, which say they are facing higher costs than their overseas competitors because of the EU's determination to lead the world in climate protection. Even so, EU officials hope to be able to avoid the issue, not least because any European border tax could be challenged at the World Trade Organization” (emphasis added). See James Kanter and Stephen Castle, “US Warns EU On Using Climate Change as Pretext”, International Herald Tribune (Jan. 21, 2008) at: http://www.iht.com/articles/2008/01/21/business/carbon.php .
[ccxxiii] See Carl Mortished, “EU Split Over Plan to Levy Import Tax on Polluters”, London Times Online (Jan. 8, 2008) at: http://www.timesonline.co.uk/tol/news/environment/article3149181.ece .
[ccxxiv] See Justin Stares, Denmark Floats Idea of Global Bunker Fuel Tax, Lloyds List Daily Commercial News (May 8, 2009) at: http://www.lloydslistdcn.com.au/archive/2009/may/weekly-edition-7th-of-may-2009/denmark-floats-idea-of-global-bunker-fuel-tax .
[ccxxvi] See Result of COP 15 – No Decisions Regarding Shipping but the Setting has Changed, BIMCO News (Dec. 2009) at: https://www.bimco.org/Members/News/General_News/2009/12/23_Result_of_COP_15.aspx .
[ccxxvii] See United Kingdom: Decarbonising The Shipping Sector - Extension Of The EU Emissions Trading Scheme, Freshfield Bruckhaus, Deringer, Mondaq (May 24, 2010) at: http://www.mondaq.com/article.asp?articleid=100570 .
[ccxxviii] See PREVENTION OF AIR POLLUTION FROM SHIPS - A further outline of a Global Emission Trading System (ETS) for International Shipping, Proposal Submitted by Norway, MARINE ENVIRONMENT PROTECTION COMMITTEE 60th session Agenda item 4, MEPC 60/4/22 (Jan. 15, 2010) at: http://www.rina.org.uk/c2/uploads/mepc%2060_4_22.pdf .
[ccxxix] See IMO Environment Committee Makes Progress, IMO Briefing 10 (March 26, 2010) at: http://www.imo.org/newsroom/mainframe.asp?topic_id=1859&doc_id=12724 .
[ccxxx] See PREVENTION OF AIR POLLUTION FROM SHIPS - Proposal to Establish a Vessel Efficiency System (VES) Submitted by the World Shipping Council, International Maritime Organization MARINE ENVIRONMENT PROTECTION
COMMITTEE Agenda item 4, MEPC 60/4/XX (Jan. 15, 2010) at: http://www.worldshipping.org/WSC_Draft_VES_Proposal__-14_Jan-_revised.pdf
COMMITTEE Agenda item 4, MEPC 60/4/XX (Jan. 15, 2010) at: http://www.worldshipping.org/WSC_Draft_VES_Proposal__-14_Jan-_revised.pdf
[ccxxxii] See Which Market Based Instrument Proposal Would be the Most Effective in Reducing Greenhouse Gas Emissions from Ships?, Sustainable Shipping (Mar. 22, 2010) at: http://www.sustainableshipping.com/forum/polls/92595/Which-market-based-instrument-proposal-would-be-the-most-effective-in-reducing-greenhouse-gas-emissions-from-ships .
[ccxxxiii]See IMO Environment Committee Makes Progress, IMO Briefing 10, supra.
[ccxxxiv] See Jack Devanney, Efficient, Safe Reduction of CO2 Emissions from Shipping, Center for Tankship Excellence (May 28, 2010) at pp. 3, 6-8, at:
[ccxxxv] Id., at p. 2.
[ccxxxvi] Id., at pp. 7, 14-16.