Myths & Realities #4 Concerning UN Law of the Sea Treaty

Myths & Realities #4 Concerning UN Law of the Sea Treaty:
LOST, Land-Based Activities & Sources of Marine Pollution,And the Precautionary Principle

By Lawrence A. Kogan, Esq.

October 17, 2007

Myth #4: The UN Law of the Sea Treaty Cannot Be Used by Foreign Governments to Challenge U.S. Regulation of Land, Internal Waterway and Air-Based Sources of Alleged Pollution Affecting the Marine Environment.

On September 27, 2007, Deputy U.S. Secretary of State John Negroponte stated during his testimony before the U.S. Senate Foreign Relations Committee that,“There are some environmental issues that are the subject of international agreements such as ocean dumping, for example, but when you talk about land-based pollution, our view is that that’s just not covered by the [Law of the Sea] Treaty...There is no jurisdiction over marine pollution disputes involving land-based sources” (emphasis added).[1]

That same day, U.S. State Department Legal Adviser John B. Bellinger III stated, in response to questions posed by Senate Finance Committee member Senator David Vitter (SC) that,“[A]s far as dispute resolution involvement...there can be limitations on the pollution that can emanate [from land-based pollution sources]. But as far as the ability in so far as the ability of any other country to complain about that and bring us to dispute resolution over pollution that would come from land that is not permitted under the treaty” (emphasis added). [2]

Reality #4: The UN Law of the Sea Treaty Sets Forth Broad Legal and Regulatory Proscriptions to Address Marine Pollution, Especially from Land-Based and Atmosphere-based Sources Located and Activities Undertaken Within National Sovereign Borders and Control

A. Official Testimony Misleading and Contrary to the LOST’s Express Terms

Many administration experts well understand that the LOST would apply to activities engaged in and products and substances designed, manufactured, formulated, sold, used and disposed of entirely within U.S. sovereign territory. In particular, the LOST would cover ANY ‘pollution’ source emanating from U.S. land, internal waterways or the air above that directly or indirectly affects the ‘marine environment’. It is therefore very surprising that Messrs. Negroponte and (especially) Mr. Bellinger were seemingly unaware of the prior 2004 Senate Foreign Relations Committee testimony of William H. Taft, IV, former Legal Adviser to the US Department of State.

Here is an excerpt of Mr. Taft’s testimony during a Question and Answer session. It apparently contradicts that of Messrs. Negoponte and Bellinger:

Question 1. If the U.S. becomes a party to UNCLOS, it will become the ‘‘law of the land.’’ Please provide a detailed analysis of all provisions that could raise issues of consistency with current U.S. laws and regulations, including our enforcement practices, with respect to the protection of the marine environment. Please include a description of any obligations under UNCLOS for which additional domestic authorities will be needed. Will the Administration be seeking implementing legislation for any of these provisions and, if not, will any steps be taken to address any such inconsistencies?

Answer...Part XII of the Convention establishes a legal framework for the protection and preservation of the marine environment. It addresses sources of marine pollution, such as pollution from vessels, seabed activities, ocean dumping, and land-based sources...” (emphasis added). [3]

If these officials had been properly briefed, they would have noticed a number of LOST provisions (articles) that address this precise issue. Consequently, one is led to wonder why these officials delivered statements under oath that were at, the very least, uninformed, and at the very most, misleading.

The term ‘pollution of the marine environment’, perhaps one of the LOST’s most central ‘legal terms of art’, is defined in the very first provision of the treaty - Part I, Article 1.1(4). It speaks broadly about both concepts. The notion of ‘pollution’ includes “the introduction by man, directly or indirectly of substances or energy into the marine environment”. The ‘marine environment’, for purposes of this definition, encompasses estuaries, fish and other living resources within national sovereign jurisdiction that ultimately flow into the sea.

“1. For the purposes of this Convention:... (4) ‘pollution of the marine environment’ means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;” (emphasis added).[4]

Article 194 is the primary article within the LOST that sets forth the broad obligation and legal duty of care assumed by all national government LOST parties as concerns the marine environment (including the United States should it ratify the LOST). In fact, it prescribes the measures that ALL LOST parties shall take to prevent, reduce and control marine pollution, especially from land-based and atmosphere-based sources.

“Article 194 – Measures to prevent, reduce and control pollution of the marine environment -1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source...3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping” (boldfaced and underlined emphasis added). [5]

LOST Article 207 goes further and mandates specifically that LOST treaty parties (including the U.S. should it ratify the LOST) shall adopt laws and regulations to address land-based and related water-based sources of marine pollution within their sovereign jurisdictions:

“Article 207 – Pollution from land-based sources -1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution” (boldfaced and underlined emphasis added). [6]

Article 207 uses prescriptive language to require LOST parties to link and harmonize their national measures with similar regional and global measures. In particular, LOST parties “shall endeavor to...harmonize their policies...[and] establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources” (emphasis added).[7] And, such “[l]aws, regulations, measures, rules, standards and recommended practices and procedures...shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances [CHEMICALS],[8] especially those which are persistent, into the marine environment” (emphasis added). [9]

Just as LOST Article 207 functions to implement specifically, with respect to land-based pollution sources, the broader legal obligations imposed by LOST Article 194, so too, does LOST Article 212 function to require implementation of LOST Article 194 as concerns atmosphere-based sources of marine pollution. For example, “States shall adopt laws and regulations...”

“Article 212 – Pollution from or through the atmosphere –1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the airspace under their sovereignty, and to vessels flying their flag or vessels or aircraft of their registry...2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.” (Boldfaced and underlined emphasis added). [10]

Given LOST Article 194’s definition of marine pollution as consisting of the introduction by man of ‘energy’ into the marine environment, one may reasonably conclude that LOST Article 212 mandates national government regulation of carbon dioxide and other greenhouse gas emissions from land-based [11] as well as sea-based sources under U.S. sovereignty and control. This would appear, at the very least, to constitute a back-door effort by European nations to secure LOST party compliance with the UN Kyoto Protocol. [12] [13] (This subject, however, will be taken up in greater detail in future ITSSD Law of the Sea Journal entries.)

In addition to the LOST’s prescriptive and mandatory regulatory provisions concerning land-based sources of marine environment pollution, there are also enforcement provisions to ensure that a LOST party compels its citizens to comply with the national rules that it adopts to implement the obligations set forth in LOST Article 207. LOST Article 213, which appears within Section 6 of the treaty entitled, “Enforcement”, sets forth the following rule:

“States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources” (emphasis added). [14]

LOST Article 222 is the corresponding enforcement provision relating to atmosphere-based sources of marine pollution, including carbon dioxide, within sovereign control. According to its mandatory provisions,

“States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the maritime environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation” (emphasis added).[15]

Last, but not least, there is LOST Article 235. It can be utilized by one LOST party to impose international legal liability at the ‘State’ (national government) level against any other LOST party (e.g., the U.S.) via compulsory, binding tribunal adjudication or voluntary arbitration (assuming that other party e.g., the U.S. has consented) where the latter has failed to fulfill its “international [legal] obligations to impose AND enforce strict new environmental rules nationally to protect and preserve the marine environment from potentially harmful land-based activities.[16]

At a minimum, in the event the U.S. ratifies the LOST, this LOST article can be used to commence litigation against the U.S. at the International Tribunal of the Law of the Sea (ITLOS) or the International Court of Justice (ICJ), or any arbitration proceedings agreed to by the U.S. government. And, whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action. For example, the politics surrounding such proceedings could persuade the U.S. Congress to apply pressure against U.S. state legislatures which traditionally have regulated insurance and/or upon the numerous American industries[17] deemed responsible for land-based sources of marine pollution in ways that could result in substantial increases in the cost of doing business, including related business insurance premiums, as well as downstream service or product cost increases to consumers. It may even persuade the U.S. Congress and state legislatures, let alone federal and state judges, to amend and/or reinterpret current laws and judicial decisions in ways that will impose greater potential future legal liability on American citizens.[18] And, if the U.S. harmonizes its enforcement and liability rules with other nations such as those in Europe, it may even result in widespread imposition of new criminal as well as civil penalties.[19]

B. United Nations Documents Clearly Reflect the Land-based Focus of the LOST and Reliance Upon the Precautionary Principle via the LOST to Ensure Protection and Preservation of the Marine Environment Against Land-Based Pollution SourcesWithout doubt, the primary objective of the LOST regime and the European regulatory control agenda behind it [20] in mandating protection and preservation of the global marine environment is to invade what every UN member state would otherwise be entitled to - national sovereignty.

In other words, via the exercise of UN supranational institutional jurisdiction and authority and the employment/exportation of ‘international’ law to other LOST parties pursuant to an interpretation of LOST terms consistent with the contra-WTO Precautionary Principle, the LOST will enable European governments to reach into and determine, if not shape, the otherwise sovereign national, state and local environmental regulatory policies of other LOST parties. In the case of the United States, this means breaching the myriad protections against arbitrary and wanton governmental actions guaranteed to U.S. citizens by the U.S. Constitution and its accompanying Bill of Rights.[21]

As three recently published UN documents make crystal clear for all of the world to see, it is actually land-based sources of marine pollution that are the LOST’s main target!“The regulation of marine pollution is usually analyzed according to the source producing the marine pollution. The sources and their respective contribution to marine pollution load (by mass) are: land-based 82%’ vessel-based 9%; dumping of waste at sea 8%; and off-shore activity 1%” (emphasis added). [22]

“...The vast majority of marine pollution comes from land-based sources. These include sewage outfalls, industrial discharges, runoff from urban storm water and agriculture, river borne and airborne pollution and litter. Land-based sources of marine pollution can also be transported through the air, such as vehicle emissions” (emphasis added). [23]

“As a whole, international instruments concerning marine environmental pollution tend to distinguish four categories of intentional pollution: vessel-based pollution coming from normal utilization of the oceans; deliberate and large, mostly industrial, dumping of wastes; pollution arising from exploration orexploitation of the sea-bed; land-based pollution whether coming from direct discharges into the ocean or carried into it by rivers...Land-based pollution is defined as pollution of maritime zones due to discharges by coastal establishments or coming from any other source situated on land or artificial structures, including pollution transported from rivers to the sea. Approximately 70 percent of marine pollution comes directly from land-based sources” (emphasis added). [24]

“The major threats to the health, productivity and biodiversity of the marine environment result from human activities on land - in coastal areas and further inland. Some 80% of the pollution load in the oceans originates from land-based activities. This includes municipal, industrial and agricultural wastes and run-off, as well as atmospheric deposition. These contaminants affect the most productive areas of the marine environment, including estuaries and near-shore coastal waters” (emphasis added). [25]

Considering, however, that these UN Environment Program (UNEP) documents (two of which were published within the same year) cite conflicting percentages of marine pollution caused by land-based sources, it is probably prudent to average the results. This would yield the following figure: at least 76% of all marine pollution is caused by land-based sources, and is subject, directly and/or indirectly, to LOST jurisdiction!

The concern by governments about land-based sources of marine pollution tracks back to at least 1985, when the Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources [26] were adopted. These nonbinding guidelines were later reviewed in greater detail in the context of the UNEP Agenda 21 at the 1992 Rio Earth Summit on Sustainable Development.

“Recognizing that control of land-based sources of marine pollution was failing the 1992 United Nations Conference on Environment and Development agreed to advance the subject. Agenda 21 invited the United Nations Environment Programme to convene a meeting on land-based sources as soon as practicable and identified priority actions for control of these sources...Agenda 21 also recommended updating the 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources [drawn from international agreements such as the UN Law of the Sea Convention] [27] assessing the effectiveness of regional agreements on land-based sources and the formulating of new regional agreements where appropriate...” (emphasis added). [28]

In any event, this 1985 document’s discussion of the ‘serious’ threat posed to the marine environment (including rivers, canals, underground watercourses, other water courses up to the freshwater limit/low freshwater flow, inter-tidal zones, saltwater marshes) by land-based sources[29] led to the convening of another intergovernmental conference in Washington DC during November 1995. The conference resulted in a political declaration[30] and an intergovernmental action plan (‘Global Program of Action’) that called for better management of land-based sources of marine pollution internationally, regionally and nationally.

“The major threats to the health and productivity and biodiversity of the marine environment result from human activities on land -in coastal areas and further inland. Most of the pollution load of the oceans, including municipal, industrial and agricultural wastes and run-off, as well as atmospheric deposition, emanates from such land-based activities and affects the most productive areas of the marine environment, including estuaries and near-shore coastal waters. These areas are likewise threatened by physical alteration of the coastal environment, including destruction of habitats of vital importance for ecosystem health. Moreover, contaminants which pose risks to human health and living resources are transported long distances by watercourses, ocean currents and atmospheric processes” (emphasis added). [31]

Interestingly, this Plan of Action, which even more broadly defined the term ‘marine environment’,[32] more closely related the need to prevent, control and reduce land-based sources of marine pollution at the national, regional and international levels as a matter of legal obligation with the use of the contra-WTO Precautionary Principle.“

4. International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and elsewhere, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources. 5. In accordance with general international law, while States have the sovereign right to exploit their natural resources pursuant to their environmental policies, the enjoyment of such right shall be in accordance with the duty to protect and preserve the marine environment. This fundamental duty is to protect and preserve the marine environment from all sources of pollution, including land-based activities. Of particular significance for the Global Programme of Action are the provisions contained in articles 207 and 213 of UNCLOS... 9. The duty to protect the marine environment from land-based activities was placed squarely in the context of sustainable development by the United Nations Conference on Environment and Development in 1992. Therein, States agreed it is necessary: (a) To apply preventive, precautionary, and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it” (emphasis added). [33]

“24. The precautionary approach should be applied through preventive and corrective measures based on existing knowledge, impact assessments, resources and capacities at national level, drawing on pertinent information and analyses at the subregional, regional and global levels. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent the degradation of the marine environment” (emphasis added). [34]

Specifically, the Plan of Action prescribes the use of the Precautionary Approach/ Precautionary Principle (without adequately distinguishing between the two terms) for purposes of undertaking actions to address land-based sources of persistent organic pollutants,[35] radioactive substances,[36] heavy metals,[37] and oils.[38] As with the declaration adopted above, it is apparent that the United States (during the Clinton-Gore Administrations) had joined with the countries of Europe to become one of 108 countries to adopt the Plan of Action.[39]

And, a more recent United Nations document suggests how different ‘tools and measures’, including regulations, economic instruments, and voluntary initiatives,[40] can be applied by national government officials to reduce the impacts of land-based activities (LBAs) upon the coastal and marine environment, consistent with Part XII of the UNCLOS.[41] Not surprisingly, these devices include reforms of private property rights.

“Other requirements and incentives to induce the implementation of environmental protection measures include: cost-effective and appropriate public and private investment; institutional measures, such as reorganisation, to promote cross-sectoral approaches; the establishment of environmental management agencies; the enactment of environmental legislation, and the reform of property rights”. [42]

According to the report, property right reforms can entail the outright “creation of private or public property rights”,[43] “allocation of property or use rights”,[44] “recognition of customary [traditional] rights” and the restriction of property rights via application of the Precautionary Principle/Approach.

“The role of government, in the context of the mitigation of the effects of land-based activities on the marine environment, is (i) to provide the legal, institutional and policy framework conducive to sustainable development and resource use and (ii) to correct market failure. Various elements might be included here but among the more important are: Maintenance of Future Options -
This ‘umbrella’ element is concerned with preventing irreversible actions that might diminish the options of future generations. It would include: adopting a precautionary approach when the ecological impact of a proposed action is uncertain” (emphasis added). [45]

“In general, environmental legislation for coastal and catchment areas provides for a number of legal mechanisms, including: recognition of customary rights, provision of public and private property rights, and revision of property rights when the management regime obstructs the attainment of desired environmental objectives...A number of concepts to support good environmental management are frequently implemented through national legislation. They include the precautionary approach... (emphasis added). [46]

Apparently, a number of environmentalists, United Nations and European commentators believe that the LOST provides a broad and comprehensive enough framework that permits national governments, consistent with evolving regional and international regulations and standards contained within other international environmental treaties, to impose legal measures to control land-based sources of marine pollution via application of the Precautionary Principle and property rights reform.

“Chapter XII of the UNCLOS sets out a broad framework for comprehensive measures to control marine pollution. Although drafted a quarter century ago, and prior to the development of the sustainable development paradigm, its provisions still provide a solid basis for the prescription of standards and for their enforcement regimes. The provisions are supplemented by a range of treaty laws that prescribe standards in much greater detail for more narrowly defined sources of pollution or for particular regions.” [47]

This expansive interpretation of international law is compatible with the prior (2004) U.S. Senate Foreign Relations Committee testimony proffered by Roger T. Rufe. Mr. Rufe is a retired U.S. Coast Guard Vice Admiral and a former CEO of The Ocean Conservancy (OTC), an environmental activist group. He is also currently serving at the pleasure of the president as Director of the Department of Homeland Security’s (DHS) Operations Directorate.

Although the Precautionary Principle did not exist and was therefore not expressly included in the original LOST text at the time the treaty was negotiated, Mr. Rufe strongly urged the Committee that the Precautionary Principle be read and/or incorporated into the LOST upon U.S. ratification and/or at a time(s) in the future when amendments to the LOST are considered by the international community. This result should obtain, according to Mr. Rufe, because the Precautionary Principle has largely evolved as a norm of international environmental law around the LOST during the intervening years. In addition, he argues that the Precautionary Principle has since been included within at least one LOST protocol and a host of related UN Environment Program multilateral environmental treaties that not only prevent land-based sources of marine pollution, but also protect living marine resources from land-based activities.[48]

This latter subject will be addressed in a forthcoming installment of the ITSSD Law of the Sea Treaty Journal’s ‘Myth & Realities’ series.


[1] See “Vitter on Law of the Sea: Part 2”, YouTube (Sept. 27, 2007) at: http://www.youtube.com/watch?v=h8IVFcCfaIM .
[2] Id.
[3] See “RESPONSES OF WILLIAM H. TAFT, IV, LEGAL ADVISER, DEPARTMENT OF STATE, TO ADDITIONAL QUESTIONS FOR THE RECORD SUBMITTED BY SENATOR JOHN F. KERRY”, on the United Nations Convention on the Law of the Sea, Before the Senate Foreign Relations Committee, (March 11, 2004) at: p. 183.
[4] See Article 1.1(4) of the UN Law of the Sea Convention (UNCLOS), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf .
[5] See Article 194(1) and (3)(a) of UNCLOS, supra.
[6] See Article 207(1) and (2), UNCLOS, supra.
[7] See Article 207(3), UNCLOS.
[8] This terminology impliedly references other UN environmental treaties that the president has quietly submitted to the U.S. Senate Foreign Relations Committee for ratification, namely, the UN Stockholm Convention on Persistent Organic Pollutants – POPS and the UN Convention on Biological Diversity.
[9] See Article 207(5), UNCLOS.
[10] See Article 212(1) and (2), UNCLOS. In fulfilling these obligations, States shall “tak[e] into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation.” Art. 212(1). “States shall endeavor to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Art. 212(3).
[11] “In the 110th Congress, three bills have been introduced that would impose multi-pollutant controls on utilities. They are all four-pollutant proposals that include carbon dioxide.” See Larry Parker and John Blodgett, “Air Quality: Multi-Pollutant Legislation in the 110th Congress”, CRS Report for Congress (May 25, 2007) at p. 2, at: http://www.ncseonline.org/NLE/CRSreports/07Jun/RL34018.pdf .
[12] See e.g., “IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emission From Ships”, Resolution A.963(23) Adopted December 5, 2003 at: http://www.sof.or.jp/proj/pdf/Res963.pdf . “RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning the prevention and control of marine pollution from ships and other matters concerning the effect of shipping on the marine environment, RECALLING FURTHER that, in accordance with Article 212 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), resolution A.719(17) invited the Marine Environment Protection Committee (MEPC) to develop legally binding measures to reduce air pollution from ships through the preparation of a new Annex to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), RECALLING ALSO that, on 26 September 1997, the Conference of Parties to MARPOL 73/78 (the Air Pollution Conference) adopted a new Annex VI - Regulations for the Prevention of Air Pollution from Ships - to the Convention in order to reduce the contribution by shipping to air pollution, NOTING that the Air Pollution Conference, by its resolution 8 concerning CO2 emissions from ships, invited the Organization, in co-operation with the United Nations Framework Convention on Climate Change (UNFCCC), to undertake a study of CO2 emissions from ships for the purpose of establishing the amount and relative percentages of CO2 emissions from ships as part of the global inventory of CO2 emissions... BEING AWARE ALSO that the Kyoto Protocol, which was adopted by the Conference of the Parties to the UNFCCC in December 1997 and has yet to enter into force, requires the countries listed in Annex 1 to the UNFCCC to pursue the limitation or reduction of GHG emissions from marine bunker fuels, working through IMO (article 2.2), BEING AWARE ALSO that in its Decision 2/CP.3 the December 1997 Conference of the Parties to the UNFCCC, recalling the 1996 Revised Guidelines for National Greenhouse Gas Inventories of the Intergovernmental Panel on Climate Change which state that emissions based upon fuel sold to ships engaged in international transport are not to be included in national totals but reported separately, urged the Conference’s Subsidiary Body for Scientific and Technological Advice (SBSTA) to further elaborate on the inclusion of emissions from international bunker fuels in the overall inventories of Parties to the UNFCCC... BEING CONVINCED that the Organization should take the lead in developing GHG limitation and reduction strategies and mechanisms for international shipping and that, in doing so, it should co-operate with the Conference of the Parties to the UNFCCC... HAVING CONSIDERED the recommendation made by the Marine Environment Protection Committee at its forty-ninth session, 1. URGES the Marine Environment Protection Committee to identify and develop the mechanism or mechanisms needed to achieve the limitation or reduction of GHG emissions from international shipping... REQUESTS the Secretariat of the Organization to continue co-operating with the Secretariat of UNFCCC and the Secretariat of the International Civil Aviation Organization” (emphasis added). Id., at Preamble pp. 1-2; Paragraphs 1 and 3.
[13] “[**The Committee and its Working Group on Air Pollution had long and extensive debates on how to follow up resolution A.963(23) on IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships. By the resolution, the Assembly urged MEPC to identify and develop the necessary mechanisms needed to achieve the limitation or reduction of GHG emissions from international shipping. Among the items considered was whether only emission of CO2 or of all six greenhouse gases identified by the Kyoto Protocol should be included. The MEPC agreed to consider the follow-up actions to resolution A.963(23) in a technical and methodological perspective and to concentrate the work on CO2 emissions. The Committee also agreed to continue the work at the next session and, in particular, to consider further a draft work plan to identify and develop the mechanisms needed to achieve the goal set by the Assembly. Greenhouse gases - In November 2003, IMO adopted resolution A.963(23) IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships. At its 52nd session in October 2004, the Marine Environment Protection Committee (MEPC) made progress on developing draft Guidelines on the CO2 Indexing Scheme and urged Members to carry out trials using the scheme and to report to the next session. One purpose of developing guidelines on CO2emission indexing is to develop a simple system that could be used voluntarily by ship operators during a trial period. The Committee agreed that a CO2 indexing scheme should be simple and easy to apply and take into consideration matters related to construction and operation of the ship, and market based incentives. At is 53rd session in July 2005, the MEPC approved Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Use in Trials. Meanwhile, the Committee recognized that IMO guidelines on greenhouse gas emissions have to address all six greenhouse gases covered by the Kyoto Protocol (Carbon dioxide (CO2); Methane (CH4); Nitrous oxide (N2O); Hydrofluorocarbons (HFCs); Perfluorocarbonds (PFCs); and Sulphur hexafluoride (SF6)”. See “Air Pollution Rules to Enter into Force in 2005”, International Maritime Organization Press Release (May 2005) at: http://www.imo.org/Newsroom/mainframe.asp?topic_id=848&doc_id=3620 . ****It is CRITICAL to note how the European Union has taken control over this process: “THE SECOND WAY IN WHICH THE EU HAS STAMPED ITS AUTHORITY ON OTHER JURISDICTIONS IS THROUGH INFLUENCING THE DECISIONS OF INTERNATIONAL STANDARD-SETTING ORGANIZATIONS AND GLOBAL REGULATORY BODIES SUCH AS THE INTERNATIONAL MARITIME ORGANIZATION OR UNECE, THE GENEVA-BASED BRANCH OF THE UNITED NATIONS THAT DEALS WITH ECONOMIC CO-OPERATION...OFFICIALS IN BRUSSELS SAY THE EU WILL IN THE FUTURE BE IN EVEN BETTER SHAPE TO DOMINATE GLOBAL STANDARD-SETTING. THOUGH IT TENDS TO ACT IN UNISON, THE EU AFTER ALL WIELDS NOT ONE BUT UP TO 27 VOTES IN BODIES SUCH AS THE IMO. THIS ENABLED THE UNION TO PERSUADE THE MARITIME GROUPING TO BAN SINGLE-HULL TANKER SHIPS FROM INTERNATIONAL WATERS EARLIER THAN MANY NON-EUROPEAN COUNTRIES WANTED.” See Tobias Buck, “Standard Bearer”, Financial Times (July 10, 2007) at: http://search.ft.com/ftArticle?queryText=Setter&id=070710000622 .
[14] See Article 213, “Enforcement With Respect to Pollution from Land-based Sources” UNCLOS, supra.
[15] Id., at Article 222, “Enforcement With Respect to Pollution from or Through the Atmosphere”.
[16] Id., at Article 235(1), “Responsibility and Liability”, UNCLOS Section 9. “RESPONSIBILITY AND LIABILITY”.
[17] This is likely to include companies that build, operate and/or manage waste water treatment facilities, landfills, hazardous waste cites, incinerators, industrial facilities, power plants, recreational tourism facilities, construction works (including dams, coastal structures, harbor works, coastal mining (sand and gravel), research centers, aquaculture facilities, agricultural and horticultural facilities, mining”, transportation facilities, etc.” See “Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, United Nations Environment Programme UNEP(OCA)/LBA/IG.2/7 (Dec. 5, 1995) at pp. 12-13, at: http://www.gpa.unep.org/documents/full_text_of_the_english.pdf .
[18] “2. States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. 3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds” (emphasis added). Id., at Article 235(2) - (3).
[19] “The Council of Europe adopted on November 4, 1998, the Convention on the Protection of the Environment through Criminal Law, E.T.S. 172. The provisions call for administrative sanctions for less serious offenses, while serious, intentional offenses should result in imprisonment or fines and may call for reinstatement of the environment (Art. 6) or confiscation of profits (Art. 7). The text also calls for criminalizing acts that ‘endanger’ the environment by creating a significant risk of serious harm. Article 2 lists categories of intentional offenses that the states parties must declare criminal both as to the principals and those aiding and abetting the commission of the offenses” (emphasis added). See Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, United Nations Environment Programme (2005) at p. 57, at: http://www.unep.org/law/PDF/JUDICIAL_HBOOK_ENV_LAW.pdf .
[20] See “EU Hides Behind Private Standards in Effort to Secure Global Regulatory Control”, Institute for Trade, Standards and Sustainable Development, PR Newswire (Oct. 9, 2007) at: http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/story/10-09-2007/0004678304&EDATE= .
[21] See Lawrence A. Kogan, “Europe’s Warnings on Climate Change Belie More Nuanced Concerns”, Institute for Trade, Standards and Sustainable Development (June 2006) at: http://www.itssd.org/White%20Papers/Europe_sWarningsonClimateChangeBelieMoreNuancedConcerns.pdf .
[22] See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme (2005) at par. 7, at p. 147, at: http://www.unep.org/law/PDF/law_training_Manual.pdf .
[23] Id., at par. 21, at p. 150.
[24] See Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, supra at pp. 71-72.
[25] See “The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, United Nations Environment Program at: http://www.gpa.unep.org/ .[26] See “Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources”, Decision 13/18/II of the Governing Council of UNEP (May 24, 1985), at: http://www.unep.org/law/PDF/UNEPEnv-LawGuide&PrincN07.pdf . “These guidelines are suggested as a broad framework for the development of similar agreements in those regions where such agreements are called for; for the guidance of Governments in areas which are not at present covered by any regional agreements; and for the preparation in the long term, should the need arise, of a global convention on pollution from land-based sources designed to strengthen international institutional arrangements to ensure the harmonization and application of global and regional rules, criteria, standards and recommended practices and procedures and to review the effectiveness of measures taken” (emphasis added). Id., at p. 2.[27] “This set of guidelines is addressed to Governments with a view to assisting them in the process of developing appropriate bilateral, regional and multilateral agreements and national legislation for the protection of the marine environment against pollution from land-based sources. They have been prepared on the basis of common elements and principles drawn from relevant existing agreements, drawing upon experience already gained through their preparation and implementation. Principal among these agreements are the United Nations Convention on the Law of the Sea (Part XII), the Paris Convention for the Prevention of Marine Pollution from Land-based Sources, the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, and the Athens protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources” (emphasis added). Id.
[28] See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme supra, at par. 22, at p. 150.
[29] According to the 1985 document, the term ‘land-based sources’ is defined as: “Municipal, industrial or agricultural sources, both fixed and mobile, on land, discharges from which reach the marine environment, in particular: a. From the coast, including from outfalls discharging directly into the marine environment and through run-off; b. Through rivers, canals of other watercourses, including underground watercourses; and c. Via the atmosphere: (ii) Sources of marine pollution from activities conducted on offshore fixed or mobile facilities within the limits of national jurisdiction...” It also defined the term ‘marine environment’ as “the maritime area extending, in the case of watercourses, up to the freshwater limit and including inter-tidal zones and salt-water marshes” and the term ‘freshwater limit’ as “the place in watercourses where, at low tide and in a period of low freshwater flow, there is an appreciable increase in salinity due to the presence of sea water.” See “Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources”, at p. 3.
[30] See “Washington Declaration on Protection of the Marine Environment from Land-Based Activities” (Nov. 1, 1995) at: http://www.gpa.unep.org/documents/washington_declaration_english.pdf . “Having therefore adopted the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, Hereby declare their commitment to protect and preserve the marine environment from the impacts of land-based activities, and Declare their intention to do so by: 1. Setting as their common goal sustained and effective action to deal with all land-based impacts upon the marine environment, specifically those resulting from sewage, persistent organic pollutants, radioactive substances, heavy metals, oils (hydrocarbons), nutrients, sediment mobilization, litter, and physical alteration and destruction of habitat” (underlined emphasis in original; italicized emphasis added). Id., at p. 1.
[31] See “Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities”, supra.
[32] “Areas of concern (what areas are affected or vulnerable): (not listed in order of priority) (i) Critical habitats, including coral reefs, wetlands, seagrass beds, coastal lagoons and mangrove forests; (ii) Habitats of endangered species; (iii) Ecosystem components, including spawning areas, nursery areas, feeding grounds and adult areas; (iv) Shorelines; (v) Coastal watersheds; (vi) Estuaries and their drainage basins; (vii) Specially protected marine and coastal areas; and (viii) Small islands.” Id., at p. 14.
[33] Id., at pp. 7-8.
[34] Id., at p. 14.
[35] Id., at p. 39, par. 104(b)(i).
[36] Id., at p. 42, par. 111(a).
[37] Id., at p. 45, par. 118(b)(i).
[38] Id., at p. 47, par. 124(b)(i).
[39] See “Adoption of the GPA at the Washington Conference (1995) 108 Countries”, United Nations Environment Program at: http://www.gpa.unep.org/documents/adoption_gpa_washington_conference_english.pdf .
[40] “Regulation is familiar, has a perceived high degree of certainty, and is compatible with existing legal frameworks. On the other hand, it imposes a high enforcement burden, is inflexible and often economically inefficient, and fails to provide incentives for continuing improvements. Economic instruments increase economic efficiency by devolving decision-making to the target sector, provide incentives for continuing improvement, increase flexibility, and in some cases reduce the enforcement burden. Their disadvantages include political barriers to setting charges and taxes high enough to alter environmentally damaging behaviour – or to providing subsidies and other incentives for desirable behaviour - and perceived uncertainty about their cost effectiveness. Voluntary action by industry may also reduce the enforcement burden, increase economic efficiency, enhance flexibility, and allow the use of industry knowledge to develop industry-specific solutions consistent with business goals.” See “Protecting the Oceans from Land-based Activities: Land-based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment”, Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection, United Nations Environment Programme (Jan. 15, 2001), Executive Summary at pp. 3-4, at: http://www.jodc.go.jp/info/ioc_doc/GESAMP/report71.pdf .
[41] “A number of international agreements contain general provisions for the protection and preservation of the marine environment Among the more important are: Part XII of the United Nations Convention on the Law of the Sea – UNCLOS...The sustainable development of coastal and marine areas requires selecting a suite of these [tools and measures], tailored to local, national, and regional circumstances within a framework of cross-sectoral management. The suitability of a given measure usually depends less upon its inherent technical merits than upon its benefits and costs relative to other measures, upon the priority of the issue that the measure addresses, and most importantly, upon the prospects for effective implementation. There are three main types of policy instruments to induce implementation: regulations; economic instruments; and instruments to induce voluntary action.” See “Protecting the Oceans from Land-based Activities: Land-based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment”, supra, Executive Summary at p. 3.[42] Id., at pp. 3-4.
[43] “Under normal market conditions, resource use is neither rational - viewed from the perspective of overall benefit to society - nor equitable, because the market does not reflect the costs of private actions that are borne elsewhere either publicly or privately, such as the environmental costs of wetland drainage or of environmentally harmful effluent discharged into a river. This market failure arises from a discrepancy between private and societal interests. This discrepancy can be corrected through a range of measures, including regulatory and economic instruments and the creation of private or public property rights” (emphasis added). Id., at p. 76.
[44] “Promotion of Efficient Resource Use Policies that promote technical economic efficiency without infringing equity (fairness) or environmental considerations will promote the welfare of present and future generations. Elements would include: allocating property or use rights”. Id., at p. 78. “In the absence of a sound environmental policy, land-based activities generate negative externalities, represented by the degradation of marine and coastal resources as markets fail fully to reflect their value. The failure of governance associated with such market failure allows the root causes to have a devastating effect on natural resources and ecosystems. Allocating resources through establishment of property and use rights is central to overcoming this failure” (emphasis added). Id., at pp. 116-117.
[45] Id.
[46] Id., at p. 111. “In addition other tools are available, including the “establishment of an institutional framework (e.g. enabling legislation for agencies); establishment of regulations, criteria, standards, and implementation guidance, with associated provisions for enforcement; establishment of protected areas; zoning, set back lines and administrative controls on development; restrictions on certain agricultural and forestry practices that result in soil erosion or excessive depletion of standing forest; and EIA requirements. Id. “The rational and equitable allocation of property or use rights is the key element in policies to correct market failure. Priority actions: use price mechanisms where appropriate to bring the scarcity of resources and the internalization of environmental costs to bear on decision making; where economic instruments are not appropriate, use regulatory instruments, such as zoning, or organizational instruments, such as the establishment of community managed areas; promote the creation of individual and common property rights; maintain or re-establish customary rights” (emphasis added). Id., at p. 124.
[47] See Lal Krukulasuriya and Nicholas A. Robinson, Training Manual on International Environmental Law, United Nations Environment Programme supra, at par. 21, at p. 150.
[48] “The precautionary approach today is endorsed internationally as a fundamental policy. It is absolutely critical that such an approach is utilized for our world’s oceans... We have generally exploited our resources, in the oceans as on land, in absence of unanimous agreement that these resources are at risk. As a result, proof of our error is beginning to pour in. The draft report from the federal oceans commission concluded last year that our oceans are in trouble. Specifically, the trouble comes from overfishing, coastal development and habitat loss, runoff and point source pollution and climate change...The environmental community noted in 1998 that the concept ‘precautionary principle’ did not exist at the time UNCLOS was negotiated, and that consequently the term did not appear in the Convention. However, we urged then and TOC urges now that the United States play a leadership role in future Convention amendments to ensure the appropriate application of this principle to guide decision-making. Fortunately, the Convention, as a constitution, does establish some principles and tools that may provide a framework for future application of the precautionary approach. Moreover, subsequent multilateral agreements related to UNCLOS do include use of the precautionary principle, including the Straddling Stocks Agreement. We therefore believe this approach is compatible with UNCLOS and urge the United States to work to ensure that subsequent changes to UNCLOS appropriately utilize the precautionary approach” (emphasis added). See PREPARED STATEMENT OF VICE ADMIRAL ROGER T. RUFE, JR., USCG (RET.), PRESIDENT, THE OCEAN CONSERVANCY, WASHINGTON, DC, before The Committee on Foreign Relations, United Nations Convention on the Law of the Sea, Senate Executive Report 108-110 (March 11, 2004) at pp. 130-131, at: http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.181&filename=er010.pdf&directory=/diska/wais/data/108_cong_reports .