Bringing New Law To Ocean Waters (Publications on Ocean Development)

BRINGING NEW LAW TO OCEAN WATERS

Publications on Ocean Development Volume 47 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume.

Bringing New Law to Ocean Waters

edited by

DAVID D. CARON and HARRY N. SCHEIBER

LAW OF THE SEA INSTITUTE UNIVERSITY OF CALIFORNIA, BERKELEY

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90-04-14088-3 © 2004 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Contents Preface and Acknowledgments

ix

I.

Introduction

1

1.

Bringing New Law to Ocean Waters Harry N. Scheiber and David D. Caron

3

II. The Regionalization and Realities of High Seas Fisheries

15

2.

Changing Perspectives on the Oceans: Implications for International Fisheries and Oceans Governance Lawrence Juda

17

3.

U.S. Policy, the Pacific Tuna Economy, and Ocean Law Innovation: The Post-World War II Era, 1945 to 1970 Harry N. Scheiber

29

4.

Transformations in the Law Governing Highly Migratory Species: 1970 to the Present Christopher J. Carr

55

5.

Illegal, Unreported, and Unregulated (IUU) Fishing: Global and Regional Responses Moritaka Hayashi

95

v

vi

Contents

6.

IUU Fishing or IUU Operations? Some Observations on Diagnosis and Current Treatment Davor Vidas

125

7.

The Regional Fishery Management Organizations and Ocean Law: A Perspective from Taiwan Yann-huei Song

145

8.

Multilateralism and Marine Issues in the Southeast Atlantic Erik Franckx

177

III. Technology and Sea-Bed Issues

199

9.

The UNESCO Convention on the Underwater Cultural Heritage: A Spanish View Carlos Espósito and Cristina Fraile

201

10. Historic Time Capsules or Environmental Time Bombs? Legal & Policy Issues Regarding the Risk of Major Oil Spills from Historic Shipwrecks John G. White

225

11. Managing Foreign Access to Marine Genetic Materials: Moving from Capture to Cooperation Richard J. McLaughlin

257

IV. Institutions and Adjudication

283

12. The International Tribunal for the Law of the Sea Bernard H. Oxman

285

13. Jurisdictional Conflicts between International Tribunals: A Framework for Adjudication & Implementation Lakshman Guruswamy

297

14. The Law of the Sea Convention Ten Years after Entry into Force: Positive Developments and Reasons for Concern Tullio Treves

349

V. The Ocean Environment

355

15. The Evolution and International Acceptance of the Precautionary Principle Jon M. Van Dyke

357

16. Deconstructing the Precautionary Principle Daniel Bodansky

381

Contents

vii

17. Finding Out What the Oceans Claim: The 1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission David D. Caron

393

VI. The New Practice of Maritime Boundaries

417

18. The Practice and Value of Compromise in Ocean Boundary Law: The Experience of Sweden Hugo Tiberg

419

19. Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia Damir Arnaut

427

20. A Note on the Commission on the Limits of the Continental Shelf and the Submission of the Russian Federation Ted L. McDorman

467

21. The Changeable Legal Status of Islands and “Non-Islands” in the Law of the Sea: Some Instances in the Asia-Pacific Region Choon-Ho Park

483

Contributors

493

Preface and Acknowledgments The quest to adjust the legal order of the oceans to changing realities—a quest that has produced some great achievements but also some grave failures—has produced one of the major developments in international law in modern times. The enterprise of “bringing new law to ocean waters,” as we term this quest, had its origins in the years immediately following World War II. A critical turning point in this enterprise came in 1967, however, when the United Nations General Assembly was called upon by the Malta delegation to develop new legal principles and rules that would protect the ocean floor and seabed resources from appropriation by any nation or private interest. The proposal went further, advocating that these resources, as “the common heritage of mankind,” be administered by an international agency acting as “trustee for all countries.” As Louis Henkin would write a few years later, the members of the General Assembly were “surprised, uncertain, hesitant, cautious;” but they did set in motion, nonetheless, the negotiations that culminated in the historic agreement in 1982 on the final text of the U.N. Convention on the Law of the Sea (UNCLOS).1 During the fifteen years of debate and successive formal conferences on UNCLOS, the Law of the Sea Institute (LOSI) established itself as a major voice for both scholarly analysis and discussion of reform proposals. The Institute, founded at the University of Rhode Island in 1965, enjoyed from the start the enthusiastic participation of legal scholars, jurists, government officials, industry and environmental representatives, and international agency staff. The

1

Louis Henkin, The General Assembly and the Law of the Sea, in The Law of the Sea, The United Nations, and Ocean Management (Proceedings of the 5th Annual Conference of the Law of the Sea Institute) 5 (1971). ix

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reports of LOSI workshops, a series of “occasional papers,” and above all its magisterial Proceedings volumes—which published the papers and comments at a series of major international conferences—quickly became recognized as among the most important contributions in the literature of ocean law studies. Many of them stand today as classics in that literature.2 And once the 1982 UNCLOS was opened for signature and ratification, the Law of the Sea Institute (which after some years had moved its administrative headquarters to the University of Hawaii, then briefly at University of Miami) shifted to a new focus on implementation of UNCLOS and on issues associated with ratification debates. The issues in law, geopolitics, and diplomacy associated with “bringing of new law to ocean waters” continued, in sum, to be the central concern of the LOSI. In 2002, the Institute moved its headquarters to the University of California, Berkeley, with the editors of this volume as co-directors. In its new home at Berkeley, LOSI has enjoyed basic financial support of the UC Berkeley Earl Warren Legal Institute (in whose offices LOSI is administered) and of the University of California School of Law (Boalt Hall), UC Berkeley. In the great tradition of the LOSI from its earliest days, the Institute continues to organize and host major international conferences. Building on the base of a major effort during 1998-2000 that produced the volume The Law of the Sea: The Common Heritage and Emerging Challenges (H. N. Scheiber, editor), published by Kluwer in 2000, the LOSI at Berkeley has another volume of conference papers on the subject “Multilateralism and International Ocean Resources Law” in press with the San Diego International Law Journal.3 It is with special pleasure that we present the papers from our third major conference of recent years at Berkeley as a volume in the very distinguished series, Publications on Ocean Development, published by Martinus Nijhoff Publishers (an imprint of Brill Academic Publishers). We are indeed grateful for this opportunity to work on this volume in association with Annebeth Rosenboom of the Brill editorial staff. She is well recognized throughout the global community of “ocean law people” as an editor of very special talent and insight, and she has given generous attention to the editing and production of this book. Others whom we need to thank include Prof. John Dwyer, formerly dean of the Boalt Hall School of Law; Prof. Robert Berring, interim dean at Boalt; and

2

The volumes, though out of print, are available in most major law libraries and centers for marine studies. The Law of the Sea Institute at UC Berkeley has in process a project to post on its web site <www.lawofthesea.org> the tables of contents of every volume in the Proceedings series, as a guide for researchers and policy officials concerned with issues that were addressed in the scholarly and policy papers, as well as reports of floor discussions, published in that famous series. 3 Conference versions of many of the papers to appear in final form in the San Diego International Law Journal are available on the LOSI website at <www.lawofthesea. org> in a collection edited by H. N. Scheiber and Kathryn Mengerink. The LOSI website will also be the venue for dissemination of workshop materials, such as those now on the site with respect to a new LOSI project, directed by David D. Caron, on nuclear issues and the oceans.

Preface and Acknowledgments

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Vice Chancellor for Research Beth Burnside, all of UC Berkeley, who were instrumental in welcoming the LOSI to Berkeley. Others who have contributed sage advice and active help to the restructuring and transition efforts, to our great advantage, include Prof. William T. Burke, University of Washington; Prof. Bernard Oxman, former director of LOSI at University of Miami; Prof. Jon Van Dyke, University of Hawaii, long an executive board member of LOSI, John Briscoe, Esq., of the Stoel Rives law firm in San Francisco; and Director Russell Moll of the California Sea Grant College Program, based at UC San Diego. We are also greatly indebted, of course, to the distinguished members of the International Advisory Board for the LOSI for their supportiveness and direct involvement in the LOSI activities of recent years. These board members are as follows: David Bederman, Emory University, USA; John Briscoe, San Francisco; Carlos Espósito, Autonomous University of Madrid, Spain; Moritako Hayashi, Waseda University, Japan; Douglas Johnston, Victoria University, Canada; Said Mahmoudi, Stockholm University, Sweden; Edward Miles, University of Washington, USA; Bernard Oxman, University of Miami, USA; Judge Choon-ho Park, The U.N. International Tribunal for the Law of the Sea; Donald Rothwell, University of Sydney, Australia; Judge Tullio Treves, The U.N. International Tribunal for the Law of the Sea; Jon Van Dyke, University of Hawaii, USA; and Davor Vidas, The Fridjtof Nansen Institute, Norway. Emeritus members are Lewis Alexander, John Knauss, and William T. Burke, USA; and Willy Østreng, Centre for Advanced Study, Oslo, Norway. Several Boalt Hall School of Law graduate law students assisted with great dedication in the organizing of the conference in 2002 and in editorial work leading to this publication of the papers. They include Martha Winnacker, Jocelyn Garovoy, Kathryn Mengerink, and Leah Harhey. Administrative support was provided with great efficiency and cheerful graciousness by Karen Chin and Toni Mendicino of the Earl Warren Legal Institute staff. Impeccable editorial and publishing support was provided by Maria Wolf of the University of California’s Institute of Governmental Studies Press. Finally, deep thanks are owed to Jane L. Scheiber and Susan L. Spencer for their special roles in support of this scholarly enterprise. Our principal debt is, of course, to the authors of the studies published in this work. In a real sense, this is a collaborative work, for each contributor had the benefit of intensive discussion over several days together at Berkeley; and the editorial process has involved further vetting and, in many cases, extended interchange among the authors and editors with the objective of giving integration and real focus to the volume as a whole. It is the editors’ hope that this book will represent not only the great LOSI tradition of collaborative studies in ocean law but also the legacy of ocean law and policy scholarship begun at the Boalt Hall School of Law, UC Berkeley. That legacy has its origins in the late 1930s, in the great work of the late Stefan A. Riesenfeld, who was a mentor and friend to the editors. We acknowledge with deep gratitude the debt our work in ocean law owes to him. No-one brought more dedication, eloquence, and scholarly acumen to the advancement of the

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central ideals of multilateralism and peaceful dispute resolution that are so essential to the rule of law in ocean affairs. David D. Caron and Harry N. Scheiber Berkeley, California, 2004

Part 1. Introduction

CHAPTER 1

Bringing New Law to Ocean Waters Harry N. Scheiber and David D. Caron

International law has undergone transforming change in many respects since World War II, but perhaps in none more dramatically than in the law of the sea. Agreement upon the 1982 U.N. Convention on the Law of the Sea was the product of an unprecedented effort to provide a universally applicable legal framework for the legal ordering of the oceans. Even in the absence of formal ratification by the United States and (for many years) some of the other leading industrialized states, this Convention successfully articulated formal rules and general principles that have well fulfilled the objectives that the negotiators sought to achieve in the long years of debate that led to the 1982 agreement. General concepts such as “duties to cooperate” have been incorporated in explicit ways into important areas of ocean law to an extent almost impossible to have imagined when the U.N. opened its first formal meetings on law of the sea nearly fifty years ago. Now firmly embedded in the legal order, too, are significant doctrines and rules such as those establishing the coastal nations’ Exclusive Economic Zones (EEZs) and prescribing the principles by which maritime boundaries are to be set. Not least important, a variety of procedures were written into the Convention for the peaceful adjudication of disputes in ocean law; and a new institution, the International Tribunal on the Law of the Sea, founded under the Convention and based in Hamburg, has now emerged as a juridical body with significance for the larger international order as well as in ocean af3 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 3-14. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Harry N. Scheiber and David D. Caron

fairs. In one recent study by respected commentators, the Convention is assessed as perhaps “the greatest treaty-making accomplishment in the entire history of international law.”1 There have been many other important positive achievements in the advancement and refinement of ocean law within the framework of the 1982 Convention. Thus, building on the Convention’s foundation, oceans diplomacy has produced a set of new treaties and created new multilateral organizations that are charged with mobilizing scientific expertise, designing regulatory regimes, and monitoring and enforcement. The record, overall since 1982, has been one of significant progress in the formulation of globalized norms and standards relating to the exploitation and conservation of marine resources.2 All this is not to say, however, that the record is one of unalloyed successes. Objectives embodied in the agreement itself were in some essential respects profoundly divergent, and important questions that had been controversial in the negotiations were not fully resolved. As is often noted, the approach of the negotiators was to fashion the 1982 Convention as “a package,” so thatFGHVSLte the instrument’s ambition to provide an overarching “holistic” or “comprehensive” approachFWKHUH DUH VLJQLILFDQW YDULDWLRQV LQ GHJUHH RI VSHFLILFLW\ ZLWK which discrete issues are addressed. The resultant “sectoral” approach persists even today. Over time, moreover, this sectoral character of ocean law and policy, with all its consequent issues of policy and administrative fragmentation, has been perpetuated and even reinforced by a proliferation of subsequent international agreements that implicate ocean resources. Indeed, there is a concern in the ocean policy community that what may be termed a “congestion” of overlapping or competing institutions and rules is impeding effective planning and management. The need for fashioning well-designed and smoothly functioning, if not to say “seamlessly” integrated, mechanisms that overcome sectoral narrowness in the governance of ocean resources and activities thus is an issue at the forefront of current-day discussion.3 Moreover, the complex ecosystemic relationships of ocean resources reach across the jurisdictional lines at sea, geographically, and similarly transcend the artificial boundaries in law that sectoral agreements and their principles set down.4 1 Richard Falk and Hilal Elver, Comparing Global Perspectives: The 1982 UNCLOS and the 992 UNCED, in ORDER FOR THE OCEANS AT THE TURN OF THE CENTURY (Davor Vidas & Willy ÚVWUHQJ eds. 1999) 2 These developments with respect to marine fisheries, for example, are analyzed in Harry N. Scheiber, Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation—and Frustration, 20 VIRGINIA ENVIRONMENTAL LAW JOURNAL 119, 129-37 (2001); Christopher J. Carr and Harry N. Scheiber, Dealing with a Resource Crisis: Regulatory Regimes for the World’s Marine Fisheries, 21 STANFORD ENVIRONMENTAL LAW JOURNAL 45-79 (2002). 3 See, e.g., Edgar Gold, From Process to Reality: Adopting Domestic Legislation for the Implementation of the Law of the Sea Convention, in ORDER FOR THE OCEANS, supra, note 1, at 384-88. 4 See, e.g., the eloquent closing remarks on this matter by Prof. Edward Miles, in THE MARINE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT: LAW, POLICY, AND SCITH ENCE (PROCEEDINGS OF THE 25 ANNUAL LAW OF THE SEA INSTITUTE CONFERENCE, 1991) 642-43 (Alistair Couper and Edgar Gold, eds., 1993).

Bringing New Law to Ocean Waters

5

An even more fundamental problem rests in the internal conflict within the concept of the oceans as a common heritage. This is in fact a two-sided concept, reflecting, first, the traditional Grotian ideal of unlimited access and use of marine areas outside coastal waters (the traditional “freedom of the seas” idea), but also embodying, second, the competing idea that collective interests of humankind must be given priority over such freedom lest ocean resources be plundered. Such unregulated plunder would lead to a loss of those resources to future generations, but more immediately would permit unjust and inequitable distribution of the income from ocean uses. This, of course, was a basic theme in the long U.N. debates on ocean law resulting in the Convention, introduced by Ambassador Arvid Pardo at an historic moment in the United Nations at the outset of those debates; and ever since, the common heritage and equitable-distribution themes have been a point of reference for assessment of the Convention’s achievements and shortcomings.5 In addition, there was the larger conceptual divergence between the common heritage ideal and the persistent claims of autonomy for state sovereignty. The Convention’s legitimation of the EEZ, giving coastal nations jurisdiction over marine resources far out beyond the pre-World War II claims for offshore boundaries, bespeaks the way the sovereign power of signatory states resides in an uneasy relationship to the Convention’s stated objective of creating “a just and equitable order which takes into account the interest of mankind as a whole.”6 Some problem areas in ocean law that are important today were not foreseen, or at least were not explicitly addressed even in general terms in 1982. The progress of science and technology has meant that new developments have in some regards overrun the limits of effectiveness of the existing legal order. An especially prominent example is the matter of ownership and development of marine genetic resources, linked to questions of equitability for less developed nations, to the industrial nations’ concern for intellectual property rights, and to the opposed interests of indigenous peoples.7 Other questions, for example, the basic issues relating to preservation of historically significant wrecks in particular and underwater cultural heritage in general, were not adequately addressed. 5 See, inter alia, a searching discussion of the “cooperative approach” in competition with exploitative attitudes, practices, and law, in Lewis Alexander, The Cooperative Approach to Ocean Affairs: Twenty Years Later, 21 OCEAN DEV. & INT’L LAW 105-9 (1990). Ambassador Pardo himself termed the Convention a profound disappointment for its ambivalence on the matter of common interests and claims. Pardo, An Opportunity Lost, in PERSPECTIVES ON U.S. POLICY TOWARD THE LAW OF THE SEA (Law of the Sea Inst., Occasional Papers, No. 35) (C. L. O. Buderi and David D. Caron, eds. 1985), It needs to be added that Judge Shigeru Oda was an eloquent voice for attention to the problem of equitable distribution, beginning in the 1950s fully a decade before the U.N. debates came to a focus on the ambitious project of a comprehensive Convention. His writings have been collected recently in ODA, FIFTY YEARS OF THE LAW OF THE SEA (2003). 6 See Jon M. Van Dyke, Sharing Ocean Resources—In a Time of Scarcity and Selfishness, in LAW OF THE SEA: THE COMMON HERITAGE AND EMERGING CHALLENGES 3-36 (Harry N. Scheiber, ed., 2000). 7 See Harry N. Scheiber, The Biodiversity Convention and Access to Genetic Materials in Ocean Law, in ORDER FOR THE OCEANS, supra note 1, at 187-201.

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Undoubtedly some important issues—most notably of all, the problem of how highly migratory species were to be sustainably managed on the high seas— were left open or treated in excessively general terms because of the manifest difficulties in achieving agreement on the specifics of new law. And the matter of seabed-mineral ownership, regulation of operations, and distribution of benefits from seabed mining, a question that was of truly central importance when the Convention was first signed, has had to be reopened and largely recast in order to overcome unwavering objections to the proposed rules of 1982 that were holding up ratification by some of the major developed states. In the half century since the United Nations initiated the talks that led to the Convention, the relationship of the world’s peoples and nations to ocean resources has undergone transforming change. This has been partly the result of the continuous increases in global population, placing concomitant pressure on all natural resources but in an especially challenging way on marine living resources and their environment. It has been the result, too, of successive waves of technological innovation of great import to the status of ocean resources. Some of these innovations, e.g., the advent of nuclear powering of vessels and the carriage by sea of nuclear materials, or the advances in size and cargo capacity of oil tankers and other commercial shipping, have presented new dangers to the health of vulnerable marine and coastal environments. Some of the innovations have increased in manifold ways the impact of human activity on exhaustible marine resources: The best known example—threatening food security in many parts of the world and perhaps foreshadowing the collapse of numerous marine ecosystems, large and small—is the pressure that too many ships, too much capital, too efficient harvest techniques, and lack of care for environmental effects that modern fishing fleets have placed upon fish stocks on all the world’s oceans. In response to questions not adequately addressed, issues requiring specific agreements to implement general principles or statements of aspirational goals, and issues that result from new developments and were not well foreseen, we have witnessed a fascinating process of “bringing new law to ocean waters.” This has been a complex process of debate, innovation, and experiment, and the reappraisal of inherited customary and treaty law has gone forward on varied fronts. The range of innovation has embraced both substantive law and procedure; and the creation of new institutions under newly fashioned agreements, complementing or going beyond the 1982 Convention, has become a prominent aspect of the changing marine-law structures. Moreover, debate of the direction that new law should take has been influenced by the efforts of scientists, legal scholars, and social scientists and policy specialists to introduce an “ecosystem” framework. The ecosystem approach has been invoked not only for implementation of policies to advance sustainability in resource management and use, but also for outright conservationist objectives including protection of biodiversity.8 8

There is continuing debate in the international community over whether commitments to “habitat protection” and “ecosystem management,” and even “biodiversity protection,” embody an implicit commitment to outright conservation when the danger to a resource indicates its necessity. Similar debates are expressed in competing assessments of the clarity, legitimacy, and applicability of the “precautionary principle,” or “precau-

Bringing New Law to Ocean Waters

7

The idea of “the common heritage” of the oceans pervades but seldom dominates entirely the diplomatic and economic landscape. Instead, the idea stands as a beacon light for innovations in the application of the ocean sciences in the service of humanity—and in the service of the ocean environment. A controversial concept of “precaution” has been articulated in many new treaties and statements of general principle in international declarations and agreements on the environment. And both in the domestic politics of individual nations and in the proliferating multilateral efforts to address the threats to ocean environments, there has been evident a searching reconsideration of the need to match policy and law to the realities of how human activities in terrestrial and coastal areas affect marine environment, and how activities on the oceans impact coastal regions and their peoples. Not least important, the ongoing efforts at implementation of the 1982 Convention have intersected with national, regional, and international initiatives and organizations whose concerns bear on ocean governance and law. Hence the need for harmonization of policies and of law, including customary law as well as treaty terms and operational policies of international organizations, is today another focal point of major concern.9 A parallel debate goes on with respect to whether the cases in the major international juridical tribunals—especially the International Court of Justice, the International Tribunal for the Law of the Sea, and the World Trade Organization court—can be effectively harmonized, or instead will become a source of fragmentation in law mirroring the dilemma of the “sectoral” approach in the management realm.10 Change and innovation on the scale that has been experienced in recent decades present a formidable challenge to students of ocean law and to policy makers. This volume represents a response to that challenge: it is an effort to examine through varied theoretical, historical, and policy perspectives vital aspects of the process of “bringing new law to ocean waters”, as it has gone forward in the past, its condition today, and pathways to further development and reform. All our contributors have written in a mode reflecting the conviction that the dynamics of change are a vital concern for scholars and jurists seeking to bring sound reasoning to bear on the issues of substantive law, procedure, and institutions.11

tionary approach.” See, infra, Chapter 16 by Jon Van Dyke, and Chapter 17 by Daniel Bodansky. 9 See, e.g., Carl August Fleischer, Implementation of the Convention in the Light of Customary International Law, Prior Treaty Regimes and Domestic Law, in ORDER FOR THE OCEANS, supra note 1, at 523-33; and chapters by Tullio Treves, Bernard Oxman and others in Part VII (The Future of the Convention), in THE 1982 CONVENTION ON THE LAW TH OF THE SEA (PROCEEDINGS OF THE LAW OF THE SEA INSTITUTE, 17 ANNUAL CONFERENCE, 1983) 631-99 (A. W. Koers and B. H. Oxman, eds., n.d. [1983]). 10 Tullio Treves, New Trends in the Settlement of Disputes and the Law of the Sea Convention, in LAW OF THE SEA, supra note 6, at 61-86. 11 For the classic statement of how the subject of ocean law must be studied as one of continuing “evolution” in its many dimensions, see William T. Burke, State Practice, New Ocean Uses, and Ocean Governance under UNCLOS, in OCEAN GOVERNANCE STRATEGIES AND APPROACHES FOR THE 21ST CENTURY (PROCEEDINGS OF THE 28TH CONFERENCE OF THE LAW OF THE SEA INSTITUTE) 229-30 (Thomas Mensah, ed., 1996).

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No area of ocean law and policy, save perhaps the pollution crises associated with a series of notorious oil spills, has won popular attention for ocean issues to a greater degree that the crisis of our times in marine fisheries. In Chapter 2, Lawrence Juda relates the history of changing attitudes and perceptions to the objective forces that have put unremitting pressure on fish stocks, all too often with disastrous results. The devastation of global fisheries had gone forward despite the vesting of full jurisdiction in the coastal states over fishery management in their EEZs, despite efforts at limiting entry, despite the general obligations set forth in the 1982 Convention, and, finally, despite a series of initiatives by the U.N. Food and Agriculture Organization (FAO) and new multilateral agreements designed to bring scientific management into play more effectively and reverse the decline of fish stocks and species. Juda’s study indicates the possibilities of comprehensive ecosystem-based approaches displacing the long-entrenched “zonal” and “sectoral” approaches to management of marine fisheries. One of the most persistent unresolved issues in international fisheries management in recent decades is the status of highly migratory species (HMS) on the high seas. The architects of the 1982 Convention were unable to obtain consensus that would have brought tuna and other HMS fish stocks under national control in the EEZs and through international agreements on the high seas. Then, as later, the position of the United States Government, solicitous of its distant-water tuna fishing industry, as was Japan, was the principal impediment to reaching agreement. In Chapter 3, Harry N. Scheiber analyzes the post-World War II origins of the HMS issue in international fisheries law. Presented as a case study in ocean-law innovation, analyzing the intersections of science, law and diplomacy in the context of complex economic interdependence between the United States and Japan, Scheiber’s study seeks to provide the “pre-history” of the HMS controversy as it presaged developments in the 1970s and on to our own day. Again seen through the lens of U.S. diplomacy and its objectives, international economic relationships, and domestic politics, the HMS story is analyzed in Chapter 4, by Christopher J. Carr, for the period after 1970. Like Scheiber’s analysis, Carr’s is based heavily on archival sources. These sources reveal how American diplomacy in the U.N. Law of the Sea meetings influenced the dynamics of pressure group politics in the domestic arena during the debates of fisheries policy and proposed exemption of HMS fisheries from national control when Congress voted to create the U.S. 200-mile EEZ under the 1976 Magnuson Act’s terms. Carr’s history of the process by which an extraordinarily narrowly based and yet influential American tuna industry then drove much of U.S. policy and ocean diplomacy in the ensuing decade, together with his analysis of how the U.S. juridical position finally was abandoned, provide rich detail and fill an important gap in the history of modern ocean law development. In Chapter 5, Moritaka Hayashi, former head of the FAO fisheries division and a key figure in bringing high-seas fishery management to a prominent place in global debates of international law, chronicles the emergence of IUU (Illegal, Unreported, and Unregulated) fishing activities as a major obstacle to effective conservationist or sustainable management today. Because HMS fish stocks are the most endangered by the IUU harvest, Professor Hayashi’s subject is closely

Bringing New Law to Ocean Waters

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linked to the preceding chapters. His analysis of the variations in policy, procedure, and enforcement among the various regional fishery management organizations that are charged with responsibility for holding the line against depletion indicates the magnitude and variety of problems that they face—but also indicates the issues that must be addressed if more effective management is to be achieved and precious resources protected against destruction. Davor Vidas in Chapter 6 offers a different perspective on the IUU problem in a study that complements both the histories of the HMS question and Hayashi’s analysis of regional management organizations. Vidas here offers a systematic and comprehensive “diagnosis” of the IUU fishing problem, together with a set of recommendations for reforms in law and policy designed to rein in and contain IUU operations. Contending that too much of contemporary policy has dealt with symptoms, rather than root causes, Vidas highlights the dilemmas that result from reliance on voluntary cooperation of port states and flag states. He seeks, then, to identify the specific “links” that are weak points in IUU operations at which interventions for regulatory control have the greatest potential. Taiwan is a major distant-water fishing power globally, and it has played a prominent role as supporter, in some instances, and in other cases as opponent, of new regulatory regimes for fisheries on the high seas. Taiwan’s role is complicated on all counts, however, by its unique status in the global community and the continuous and often dangerous tension in its relations with the Peoples Republic of China. The regional fishery organizations can be effective in ocean areas heavily fished by Taiwanese-flag vessels only if Taiwan is constructively involved in compliance efforts. Hence, the analysis in Chapter 7 by Yann-huei Song of Taiwan’s exclusion from full participation in the regional management organizations illuminates a key issue in current-day implementation policies. Chapters 3 and 4 illustrate how U.S. interests in regard to the Japanese Occupation and the Cold War, and later in the U.N. negotiations on law of the sea, reflected in their day the interrelationships of “macro” level geopolitics to HMS and other fisheries policy development. Song’s study similarly illustrates the constraints that arise when the overarching issues of “China diplomacy” regarding questions of sovereignty, national status, and security interests intersect with efforts and high-seas fishery management. In Chapter 8, Erik Franckx shifts our attention to the Southeast Atlantic and the development of new approaches and a new regional fishery management organization concerned with management of fishing in the waters off the coast of Africa. The aforementioned problems of jurisdictional overlap, potential (or actual) conflict in policies, and “congestion” by dint of proliferating authorities comprise a familiar theme that has its variant in this story, especially insofar as the drafters of the new convention for the Southeast Atlantic have sought to minimize these problems for their management regime. Conditions of membership, procedures for decision making, and monitoring/enforcement issues all receive close analysis, Franckx suggests how the new agreement might provide an important model for other regional organizations as they are proposed in other ocean areas. As a case study of multilateralism in action, his work richly complements the preceding chapters on regionalism in the legal ordering of fishing activity on the high seas.

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In Part III, this volume turns its focus to the continuing challenge to ocean governance posed by improvements in technology. From the application of the reciprocating steam engine to the powering of fishing vessels at the beginning of the 20th century to the capability of the modern offshore oil industry to drill in ever deeper waters, advances in technology have pushed continuously at existing governance regimes for the oceans. Most recently, improvements in remote sensing and unmanned underwater vehicles suddenly have opened up the cultural heritage of the seabed to exploration and exploitation in ways unexpected and heretofore only fortuitous. With three million shipwrecks worldwide, and 50,000 in U.S. territorial waters alone,12 there has been a need for new law defining the rights, and the duties, of both states and privates parties as to the underwater cultural heritage of mankind. In Chapter 9, Carlos Espósito and Cristina Fraile, both officials with the Spanish Foreign Ministry who were involved with the negotiation of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, recount the conclusion of that Convention with a particular emphasis on the view and objectives of Spain.13 Their account of the negotiation is the story of the beacon of the common heritage of mankind idea and the attempt to reconcile the interests of coastal states, flag states, and private parties in the riches suddenly within reach on the seabed. It is a case study of negotiation and compromise. The debates turned on the question of whether and how to interpret the rather vague mandates of UNCLOS—and on conformity with them. The chapter shows how difficult it is, even in the confined bounds of the conference room on a quite discrete issue, to bring new law to ocean waters. It is an achievement that agreement was reached at all given, as the authors write, how “[t]he interests and values at stake were truly in conflict, and the majorities were imbalanced.” In finding the Convention to be “a respectable achievement” just on the “mere fact” that it is “potentially universal,” the authors remind us that it will be the extent of ratifications and the depth of state implementation that will tell us whether this attempt at law-making is a success Yet even as the overall jurisdictional framework contained in the UNESCO Convention is placed before states for their consideration, there are practical problems posed by the technological opening up of our underwater cultural heritage that require legal answers now. John White, in Chapter 10, writes “a story of 3 shipwrecks . . . and each is a potential environmental time bomb.” For White, UNCLOS (“despite its shortcomings”) as a framework treaty “provided an impetus for national laws and international treaties that provide more extensive and explicit protections for UCH.” White illustrates “the inherent tension between environmental response operations . . . and historical preservation goals,” and interestingly demonstrates that technology not only opens the deep 12

As cited by White, Chapter 10 infra, fn. 56. In providing a detailed look at the formulation and evolution of Spain’s policy on underwater cultural heritage and the UNESCO Convention, Espósito and Fraile in Chapter 9 complement the national focus of White in Chapter 10 on the policy and law of the U.S. concerning the pollution risks from wrecks and of Song in Chapter 8 on Taiwan’s position on its obligations and claims in the Regional Fishery Management Organizations. 13

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seabed to plunder, but also offers the means to address sources of major environmental pollution. In the chapters by both, Espósito/Fraile and White, we see the recurring importance, and evolving significance, of the flag state, a theme that can be seen also in the chapters by Hayashi, Franckx, and, above all, Vidas. In bringing new law to ocean waters, a common method of analysis is analogy. Under this method, one looks to arguably analogous problems and the efficacy of the various approaches attempted to address those problems. Richard McLaughlin writes from an extensive background in the negotiation of coastal state interests in marine genetic resources within their ocean spaces. McLaughlin attempts in Chapter 11 to displace the analogy of exclusive ownership often reflexively employed with regard to marine genetic resources. In particular, he emphasizes the shared (“fugacious”) nature of the resource and the cooperative structure required of regimes for such resources. Part IV looks at the institutions of adjudication put in motion by UNCLOS. The dispute settlement mechanism contained in UNCLOS has been hailed as one of the most comprehensive and mandatory systems yet devised internationally. But contained within that system are compromises that have required prudence on the part of the judges of the International Tribunal for the Law of the Sea (“ITLOS”) and have led to outcomes prompting reflection and perhaps new institutional approaches. The major compromise made during the negotiation of UNCLOS was that the large size of the Tribunal sought by some states was gained through the inclusion of a provision allowing states parties to chose either the Tribunal or an arbitral panel for the resolution of their disputes. At present, the choice made by many states parties indicates that most disputes will be decided by arbitral panels rather than ITLOS. The Tribunal, however, always has jurisdiction over requests for interim measures of protection, and that has meant that ITLOS on occasion has dealt with such requests while the merits then are addressed by arbitral panels.14 In the Southern Bluefin Tuna case this led to ITLOS indicating preliminary measures of protection having concluded that it had prima facie jurisdiction over the case,15 while the later arbitral panel dealing with the merits dismissed the case for lack of jurisdiction. 16 In Chapter 12, Bernard Oxman reviews the record of ITLOS thus far, carefully offering both general observations and insights particular to the various functional areas presented to the Tribunal. Oxman notes—with approval—that ITLOS, with a few members as exceptions, appears to view “its primary function as deciding the case before it, and eschews elaborate dictum on issues whose resolution is not essential to the decision.” Laksman Guruswamy in Chapter 13 focuses particularly on the institutional questions presented by multiplicity of possible fora and how new institutional

14

See Convention, art. 287. Southern Bluefin Case (N.Z. v. Japan; Austl. v. Japan), Provisional Measures, ITLOS Case Nos. 3 and 4, paras. 81-82 (Aug. 27, 1999), http://www.itlos.org/case_documents/2001/document_en_116.doc. 16 Southern Bluefin Tuna (Australia and New Zealand v. Japan). Jurisdiction and Admissibility. Arbitral Tribunal (Aug. 4, 2000), http://www.worldbank.org/icsid/bluefin tuna/award080400.pdf. 15

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law might serve to mitigate the possibility of duplicative or even inconsistent proceedings. Guruswamy notes that: the mushrooming of such tribunals undermine the appearance of an unitary and coherent legal system, render it more difficult to establish formal relations between juridical entities, foster perceptions of illegitimacy regarding juridical entities and decisions, decrease the likelihood of state compliance with decisions seen as illegitimate, promote greater insularity and isolation of juridical entities from general international law, increase uncertainty for states regarding their obligations under existing law, engenders conflicts over jurisdictional authority, perpetuate conflicts between normative commitments of juridical entities, increase forum shopping and perception of forums as outcomedeterminative, increases the possibility of conflicting judgments and inconsistency in case law.

Oxman points out that this complexity is welcome in the sense that it reflects a legal system coming of age. Guruswamy takes up the challenge posed by Oxman of considering how the principles used by municipal legal systems may come to be adapted to the international context. Part IV closes with a chapter by Judge Tullio Treves, reviewing more generally both the durability and adaptability of the UNCLOS regime over the decade since it entered into force. The overall hopeful assessment by Treves, particularly as to the Convention’s role as the normative foundation for more detailed regimes and its adaptability thus far to new challenges, is qualified only by the recognition that U.S. continues to stand outside of the Convention, a situation which still lingers as this volume goes to press. The ocean environment is the central theme of Part V. Although environmental concerns were an area of negotiation during UNCLOS III, the ocean environment continues daily to reveal new secrets and—unfortunately—the interconnectedness of its web of life and the deteriorating state of the health of that web are major recurring revelations. Recognizing that we do not know—and indeed will never know—enough about the ocean environment, the precautionary principle has emerged as a major rallying point for conservationists in the design of legal regimes for the sustainable management of the oceans. But is the principle simply another beacon, like the idea of the common heritage of mankind, offering hope, and perhaps direction, in what otherwise is a dark night. In Chapters 15 and 16, Jon van Dyke and Daniel Bodansky debate and explore the significance of the precautionary approach, the dimensions in which operates and the instruments in which it is articulated. Bodansky argues that is hard to “pin down exactly what the precautionary principle means” and that the problem goes beyond vagueness to “confusion about the core meaning of the term.” Van Dyke counters that such “criticisms fail to recognize the important shift in perspective that the precautionary principle exemplifies,” and that “with time and experience, the details of the precautionary principle will come into clearer focus.” Both agree that hard thinking will be needed to advance the principle, and both contributions go a significant distance in accomplishing precisely that. In Chapter 17, David D. Caron describes the efforts of the United Nations Compensation Commission for claims arising out of the Gulf War to address the

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damage done to the Gulf marine environment by that conflict. Although the Panel of Commissioners charged with this task do not use the phrase “precautionary principle,” their implicit willingness to view a state’s efforts to determine whether there is damage to the marine environment, and the extent of that damage, as itself damage reflects a similar normative approach. Caron examines how UNCC defined damage to including the costs of both monitoring and assessment and argues that this definition is an important institutional adaptation allowing a true exploration of the harm suffered by the environment. The law of maritime boundaries, the focus of the last portion of the volume, is fascinating for purposeful open-endedness and its mixture of politics and law. Rules on maritime boundaries have never been particularly easy to negotiate, in large part because every negotiator knows how a particular approach to the rules will affect their own particular situation. As one party to a negotiation favors a strict equidistance formula, the other believes the correct normative approach is a comprehensive one taking into account all equitable circumstances. This should not be surprising for maritime zones—particularly the extended ones— are of great material and strategic value to the contiguous states, and great thought goes into their delimitation. These boundaries, like all boundaries, often touch on national pride and sensitivities. Chapters 18 and 19 present two case studies of how nations have attempted to negotiate creatively their boundaries within the substantial space suggested by the rules contained in UNCLOS. Hugo Tiberg argues that Sweden’s creative negotiating stance in its several maritime boundaries offers a valuable example of how the functional zones of UNCLOS may be used to arrive at diplomatic solutions acceptable to the interest of all concerned. Damir Arnaut, on the other hand, in examining the ongoing and controversial delimitation negotiations between Croatia and Slovakia argues that at least one of the solutions under consideration does utilize all of the zonal tools available in such a complex and sensitive negotiation.17 If the many aspects and open-endedness of the law of delimitation indirectly encourage states to creatively negotiate a mutually acceptable border, the powers of the Commission on the Limits of the Continental Shelf directly recognize an evolutionary process to the delimitation of the outer limit of a state’s continental shelf where it is claimed beyond 200 miles from the relevant baseline. Ted McDorman in Chapter 20 provides a case study of the first deliberations of Commission on the Submission of the Russian Federation as to the outer limits of its shelf. In McDorman’s view, “the role served by the Commission in outer continental margin delineation is that of legitimator.” Given this critical role, McDorman in evaluating how the Commission addressed the first submission before it expresses concern that “the Commission has wrong stepped at a crucial point in its youthful life.” 17 As to this complex and controversial negotiation (an extremely sensitive topic in relations between the northern Adriatic states), the editors refer the reader also to the notably excellent and thorough recent studies in English published by the UK-based International Boundary Research Unit (“IBRU”) at the University of Durham. One of these studies by Mladen Klemencic and Clive Schofield may be found in a thematic volume of BOUNDARY AND SECURITY BULLETIN; the other study, The Maritime Boundaries of the Adriatic Sea by Gerald Blake and Dusko Topalovic, is a part of the IBRU’s MARITIME BRIEFINGS.

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Part VI, and the volume as a whole, closes, quite appropriately, with contribution from Judge Choon-Ho Park, who considers a need for new law not because technology has changed humanity’s relationship to the ocean, but rather because the ocean itself changes. Park in particular considers the implications of both new islands emerging and of existing islands submerging. He writes that UNCLOS in addressing such islands has left “some stones unturned” or “some turns unstoned.” It is precisely such new or unforeseen challenges generally that are the focus of this volume and will require the prudent creativity of scholars and diplomats alike.

Part 2. The Regionalization and Realities of High Seas Fisheries

CHAPTER 2

Changing Perspectives on the Oceans: Implications for International Fisheries and Oceans Governance Lawrence Juda

Human approaches to the uses of the natural environment are affected in great measure by the perception of that environment and the state of comprehension of its dynamics. As perspectives on natural systems and the resources they generate change over time, significant behavioral alterations may occur. An earlier view of oceans saw them as a location in which desired fishery resources were found and as a surface that provided a transit route for people and commerce. In terms of fisheries, the resource base was believed to be boundless and seemingly immune to the effect of human actions. The contemporary view of the oceans is quite different. The oceans remain an environment to be utilized, but it is now understood that they must also be protected from excessive use and exploitation. Further, given contemporary technological capabilities they are now seen in three dimensional terms, reflecting interest that now extends beyond the ocean surface to the entire vertical column of ocean space, extending from seabed and subsoil through the water column to the airspace above. Extraction of non-living resources, such as oil and gas, sand and gravel, and a variety of minerals from the seabed is practical and

17 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 17-27. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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ongoing.1 Pipelines and cables abound in and on the seabed,2 and questions relating to rights of overflight of aircraft are significant.3 Most importantly, the oceans are now conceived of in systemic terms with limits to productivity and subject to a wide array of uses, each of which, to varying degrees, affects the marine environment. And individual land-based and offshore activities, too, are recognized to have cumulative effects on ocean systems. The totality of human uses occurs in a situation in which there is acknowledged uncertainty as to ocean dynamics and the ultimate impacts on the sustainability of ocean resources and the ocean environment. Over time the evolution in broad understandings of ocean resources has been manifest in three different conceptual frameworks that have affected approaches to fisheries governance. In chronological order of their widespread acceptance they are: N the belief that for practical purposes fish are unlimited in numbers and no matter how many fish are taken from the ocean, there will always be enough to satisfy human demand; N the understanding that fisheries can be severely depleted by overfishing associated with the use of ever more sophisticated technology by increasing numbers of fishermen; and N the awareness that fisheries can be severely compromised not just through overfishing, that is, by directly taking the fish, but also through human actions that destroy fish habitat, damage water quality, alter trophic relationships, or otherwise damage the natural environment needed to sustain fish populations. The first concept, that of the inexhaustibility of fisheries, is most closely associated with the period prior to the twentieth century and is exemplified in the views expressed by Prof. T. H. Huxley, one of the outstanding scientists of his day, at the 1883 International Fisheries Exhibition in London. Speaking of marine fisheries he maintained that fish such as cod, herring, and mackerel were inexhaustible since there were so many of them and the portion caught by fishermen was “relatively insignificant.” Nothing that humans do, he asserted, could seriously affect the number of fish and, consequently, it was unnecessary and a waste of effort to try to regulate fisheries.4 Such thinking provided support for the concept of freedom of the seas advocated more than two hundred years ear-

1 Oceans and the Law of the Sea: Report of the Secretary-General, U.N. GAOR 57th Sess., Preliminary List Item 25, at 42-44, U.N. Doc. A/57/57 (2002). 2 On underwater cables, see Scott Coffen-Smout and Glen Herbert, Submarine Cables: A Challenge for Ocean Management 24 MARINE POL’Y 441, 441-48 (2000), and the website of the International Cable Protection Committee, at http://www.iscpc.org (last visited Feb. 18, 2004). 3 On the law of ocean airspace, see Kay Hailbronner, The Legal Regime of the Airspace Above the Exclusive Economic Zone 8 AIR L. 30 (1983); George W. Ash, 1982 Convention on the Law of the Sea—Its Impact on Air Law 26 AIR FORCE L. REV. 35 (1987). 4 Thomas Huxley, Address before the Inaugural Meeting of the Fishery Congress (June 18, 1883), in PAPERS OF THE CONFERENCES HELD IN CONNECTION WITH THE GREAT INTERNATIONAL FISHERIES EXHIBITION (1883).

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lier by the famous Dutch international lawyer Hugo Grotius. In his classic Mare Liberum he observed that: . . . everyone admits that if a great many persons hunt on the land or fish in a river, the forest is easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea.5

The belief that fisheries were inexhaustible persisted well into the twentieth century.6 However, as fishery science advanced, as fishing technology became more sophisticated, and as total catch effort increased enormously, the concept of living resource inexhaustibility was laid to rest.7 An important ramification of this development was the growing acceptance of the second framework concept noted above, namely that overfishing, could indeed have important negative effects on the future availability of the ocean’s living resources. It is not surprising, then, that pressure arose in favor of regulating fishing at both the national and international levels and that coastal states developed interests in widening offshore jurisdiction to limit foreign fishing, leading most recently to the establishment of national exclusive economic zones (EEZs).8 If the availability of fish was finite then fisheries could be viewed as a zero-sum game and questions of allocation—that is, who gets the fish—as well as conservation could be addressed to the satisfaction of coastal states by establishing extended zones of national jurisdiction. Coming into the middle of the twentieth century, the prevailing customary international law of the sea emphasized freedom of the seas, providing coastal states with narrow territorial seas bordering directly on the high seas, a vast area of ocean commons available for use by all. From a resource and environmental management perspective, the resulting jurisdictional configuration had all of the negative implications inherent in what came to be termed the “tragedy of the commons.”9 The Third United Nations Conference on the Law of the Sea (1973-1982) directly addressed this important problem in the world’s oceans, establishing who has authority and responsibility to do what and where. The 1982 Convention on the Law of the Sea and the state practice associated with it established a 5

HUGO GROTIUS, THE FREEDOM OF THE SEAS: OR THE RIGHT WHICH BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIAN TRADE 57 (Ralph van Deman Magoffin trans.; James Brown Scott ed.,1916). 6 See Harry N. Scheiber, Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation and Frustration 20 VA. ENVTL. L. J. 119, 137 (2001). 7 For consideration of the factors that led to the demise of the concept of fisheries inexhaustibility see LAWRENCE JUDA, INTERNATIONAL LAW AND OCEAN USE MANAGEMENT: THE EVOLUTION OF OCEAN GOVERNANCE 8-48 (1996). 8 Note that at its 1894 meeting in Paris, the Institute of International Law, composed of the leading experts of the day, concluded that the three mile limit of territorial seas was “insufficient for the protection of coastwise fishing.” THE EXTENT OF THE MARGINAL SEA: A COLLECTION OF OFFICIAL DOCUMENTS AND VIEWS OF REPRESENTATIVE PUBLICISTS 116 (Henry Crocker ed., 1919). 9 The classic statement of this problem is found in Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).

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new international legal framework for the world’s oceans. With the legitimization of EEZs, the high seas commons was reduced in geographic extent and importance in regard to fisheries as some 90 to 95 percent of the world’s marine fish catch was taken from ocean areas now under coastal state jurisdiction. 10 In attending to matters of ocean jurisdiction and establishing the rights and duties of states, particularly through the device of exclusive economic zones, the Convention generated both distributional benefits and losses. States such as the United States with large EEZs filled with living resources emerged as big winners while states such as Japan that were heavily engaged in distant water fishing suffered losses due to reduced access to former fishing grounds.11 The zonal approach to ocean jurisdiction embodied in the Law of the Sea Convention, however, led to other fisheries problems because that framework, relying on politically defined boundaries, failed to take into sufficient account either the transboundary character of natural ecosystems or the movement of living resources and pollutants. With the establishment of EEZs, continually growing pressures on fisheries, and the increased stake of the coastal states in effective management of living resources now under their exclusive jurisdiction, attention turned increasingly to the management and conservation aspects of fisheries. In this context, it is appropriate to observe that several basic forces drive the pattern of ocean use and affect the continued development of the international legal framework for the oceans. First, and perhaps foremost, is the reality of world population growth, whose significance cannot be overstated. The historic trend of population growth must be recognized for what it is: a steeply rising demand for ocean goods and services such as food, energy, transportation, and recreation and for use of the oceans as a disposal site for humanity’s waste products. The present world population hovers around six billion, in sharp contrast to an estimated one billion in the year 1800.12 Six billion people generate much more pressure on the oceans than do one billion. Not only are there more people, but their expectations in terms of necessary and desirable goods and services are higher than they were in earlier periods, with correspondingly greater pressures on the natural environment. Second, contemporary technology has made the ocean environment exploitable in ways not possible in the past and has revolutionized traditional uses. Offshore oil and gas deposits in the deepest continental shelf areas are now accessible,13 with offshore production during the 1990s accounting for some 30 percent 10

U.N. FAO, FAO FISHERIES CIRCULAR C879 SOME HIGH SEAS FISHERIES ASPECTS RELATING TO STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS 1 (1994). 11 Note that in 1972 the total marine fish catch of Japan was just over 8 million metric tons; by 1999 that figure had dropped to just under 4 million metric tons. (8,031,113 as opposed to 3,962,326 million metric tons). This data was taken from FAO, FAOSTAT Fisheries Data, at http://apps.fao.org (last visited Feb. 18, 2004). 12 On world population growth and projections, see POPULATION REFERENCE BUREAU, WORLD POPULATION GROWTH, 1750-2150, available at http://www.prb.org/ Content/NavigatioMenu/PRB/Educators/Human_Population/Population_Growth.htm (last visited Feb. 18, 2004). 13 During 2001, a new record for offshore oil exploration was reported in 9,743 feet of water in the Gulf of Mexico. Oceans and the Law of the Sea: Report of the Secretary-

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of total world oil production, up from 25 percent in the early 1980s.14 Deep seabed mining for manganese nodules in ocean depths of 16,000 feet is possible, if not presently economical, and detailed rules and regulations for the prospecting and exploration of polymetallic nodules have been adopted by the Assembly of the International Seabed Authority.15 Commercial fishing today is vastly different from what it was in the past. Modern technology makes it possible to locate fish with precision and to reduce or even eliminate the guesswork as to where to place nets. The nets themselves, made of synthetics, are larger and are towed by faster and larger, powered vessels with a host of hydraulic capabilities, allowing for larger takes of fish. These vessels may have the capability to store catch, to process it onboard or to transfer the catch quickly for onshore processing. With present transportation and marketing networks making fish a commodity in international trade,16 the global demand for fish products justifies ever-larger catches.17 Yet, despite the economic incentives to increase catch and the more sophisticated technological capability to do so, the level of catch of desirable species is not keeping pace with expanding effort. Table 2.1 is informative in this regard. In the period from 1950 to 1961 world marine fish catch doubled. In the period of 1961 to 1984 it doubled again. Note that the second doubling took more than twice as long to achieve as the first, despite continuing investment in the fishing industry. In effect, what had occurred is that while the aggregate catch continued to grow in the second period, the catch per unit of effort declined despite the use of more sophisticated gear, supporting the view that the fish biomass could not support ever larger catches. Moreover, the figures cited in Table 2.1 reflect tonnage of catch without providing any insights into the composition or quality of the catch. For the fisherman it is clear that some fish are more desirable than others; the fisherman wants to capture those species which are most marketable and which bring the highest prices. Table 2.1 suggests that, quantitatively, world marine fish catch has leveled off, but other data further indicate that the portion of total fish catch representing high priced and high demand fish species is declining as a percent General, U.N. GAOR 57th Sess., Preliminary List Item 25, at 43, U.N. Doc. A/57/57 (2002). 14 Id. 15 International Seabed Authority, Decision of the Assembly Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, U.N. Doc. ISBA/6/A/18 (4 October 2000). 16 According to the Food and Agriculture Organization, one third of total world fish catch is moved in international trade. Status and Important Recent Events Concerning International Trade in Fishery Products Including Trade Impediments, U.N. FAO, Committee on Fisheries, Subcommittee on Fish Trade, eighth session, U.N. Doc. COFI:FT/VIII/2002/2 (Bremen, Germany, 12-16 February 2002). 17 The significant impact of railway connections from fishing ports in England to London on the demand for fish, and the significance of refrigerated railroad cars and canning operations on the marketability of fish, for example, is noted in JUDA, INTERNATIONAL LAW AND OCEAN USE MANAGEMENT, supra note 7, at 18-19. On the changing technology of fisheries capture, see id. at 17-30, 35-38, and 68-69.

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Table 2.1. World Marine Capture Fisheries Year 1950 1961 1984 1996 1997 1998 1999 2000

Total Catch (millions of metric tons) 14.1 30.4 63.6 86.0 86.4 79.2 84.6 84.7

Sources: FAO, Yearbook of Fishery Statistics: Summary Tables at http://www. fao.org/fi/statost/summtab/default.asp and FAOSTAT, Fisheries Data at http://apps.fao. org/page/collections?subset=fisheries (last visited June 20, 2002).

age of total catch. For example, a well-known study indicates that fishing effort is proceeding further down the food chain as the species at the top of that chain are becoming less abundant.18 At the same time, global catch effort and capability have mushroomed beyond levels that available fish can sustain and have generated international attention to the problem of world-wide overcapitalization in the fishing industry.19 Third, while population and technology pressures are evident, so too are growing anxiety about stock depletion and awareness of the conditions needed for the sustainability of marine living resources. Concern with habitat, bycatch, and food chains feeds interest in and gives legitimacy to a third perceptual framework that involves an ecosystem-based approach to living resource and environmental management. This concept emerged forcefully in the second half of the twentieth century20 as it became clear that fisheries may be decimated not 18

Daniel Pauly, Fishing Down Marine Food Webs, 279 SCIENCE 860, (1998). Some observers of marine ecosystem dynamics note cases in which over-fishing appears to have led to “biomass flips” where once dominant species have been replaced in the ecosystem structure by other species with cascading and long term or even permanent effects on the entire system. See, e.g., Kenneth Sherman, The Large Marine Ecosystem Concept: Research and Management Strategy for Living Resources, 1 ECOLOGICAL APPLICATIONS 349 (1991). 19 The 1995 Rome Consensus on World Fisheries adopted by the FAO Ministerial Conference on Fisheries notes that FAO analyses have concluded that “overfishing in general, and overcapacity of industrial fishing fleets in particular, threaten the sustainability of the world’s fisheries resources for present and future generations.” Rome Consensus on World Fisheries, available at http://www.fao.org/fi/agreem/consensu/cone.asp (last visited Feb. 19, 2004). See also Report of the Technical Working Group on the Management of Fishing Capacity (La Jolla, 15-18 April 1998). FAO, available at http://www. fao.org/fi/faocons/twg/r586/r586e.asp (last visited Feb. 19, 2004). 20 This is not to say that ecosystemic considerations for fisheries were not contemplated at an earlier period. For example, the linkage between fisheries and the near shore

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only by overfishing but also through human actions that destroy habitat, damage water quality, or otherwise harm the ecosystem home of desired living marine species. Accordingly, ecosystemic approaches to ocean management, the third of the three frameworks noted earlier, had come of age by the late twentieth century and had become central to discussions of ocean use management21 that focussed on multi-use management strategies involving activities at sea and on land22 and the call for application of the “precautionary approach”23 to the environment. The 1972 Stockholm Conference on the Human Environment was a significant event in this regard as it crystallized environmental concern and articulated recognition that it was possible for humans to “do massive and irreversible harm to the earthly environment on which our life and well-being depend.”24 In Principle 3 of its Declaration, the Conference asserted that “The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved.” Principle 6 warned that the release of toxic substances and heat had to be controlled to ensure that “serious or irreversible damage is not inflicted upon ecosystems.” Developments in the law of the sea that gave to coastal states sovereign rights over the living resources in their exclusive economic zones have also provided coastal states a powerful motive to protect those resources against both the direct threat of overfishing and the indirect menace of damage to the ecosystems

natural environment was noted in 1918 by the Argentine law professor José Léon Suárez, El mar territorial y las industrias marítimas, in DIPLOMACÍA UNIVERSITARIA AMERICANA 155 (1918). 21 See, e.g., U.N. FAO, CODE OF CONDUCT FOR RESPONSIBLE FISHERIES, especially Arts. 6-10, available at http://www.fao.org/fi/agreem/codecond/ficonde.asp (last visited Feb. 19, 2004.) 22 See, e.g., UNITED NATIONS ENVIRONMENT PROGRAMME, THE GLOBAL PROGRAMME OF ACTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT FROM LAND-BASED ACTIVITIES, U.N. Doc. UNEP(OCA)/LBA/IG.2/7 (5 December 1995), available at http:// www.gpa.unep.org/documents/about-GPA-doc.htm (last visited Feb. 19, 2004). Note that Art. 10 of the CODE OF CONDUCT FOR RESPONSIBLE FISHERIES specifically addresses the need for integrating fisheries into coastal management. 23 There is a vast and growing body of literature on the precautionary approach. See, e.g., THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION (David Freestone & Ellen Hey eds., 1996); HARALD HOHMAN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN INTERNATIONAL ENVIRONMENTAL LAW (1994); John M. Macdonald, Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management, 26 OCEAN DEV. & INT’L L. 255 (1995); and David VanderZwaag, The Precautionary Approach and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides, 33 OCEAN DEV. & INT’L L. 165 (2002). For application of the precautionary principle to fisheries, see S.M. Garcia, The Precautionary Principle: Its Implications in Capture Fisheries Management 22 OCEAN & COASTAL MGMT. 99 (1994); FAO, PRECAUTIONARY APPROACH TO CAPTURE FISHERIES AND SPECIES INTRODUCTIONS, FAO Technical Guidelines for Responsible Fisheries—No. 2, available at http://www.fao.org/fi/agreem/codecond/codecon.asp (last visited Feb. 19, 2004). 24 Stockholm Declaration, para. 6 available at http://www.unep.org/Documents/ .Multilingual/Default.asp?DocumentID=287 (last visited Feb. 19, 2004).

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that sustain those resources. Accordingly, it was becoming increasingly apparent that protecting the sustainability of the living resources of the ocean was not simply about managing fishing effort but rather about managing a wide range of human behavior. With the benefit of an additional twenty years of hindsight, experience, and analysis, the 1992 United Nations Conference on Environment and Development (UNCED) held at Rio de Janeiro, attended by representatives of over 170 states with observers from hundreds of non-governmental organizations, adopted a Declaration of Principles25 and a detailed plan, AGENDA 21,26 that indicated contemporary understanding of human interplay with the environment and the need to protect the sustainability of natural systems on which human life and society depend. Of fundamental significance are the concepts reflected in the record of the Rio meeting that the natural environment is composed of interacting natural systems, with interrelating parts, impacting one upon the other 27 and that human activity has the capability of undermining those systems with consequential damage to human well being. From a management perspective, however, a basic problem is presented by the fact that ecological systems are not co-extensive with the jurisdictional reach of nation-states.28 Accordingly, the Rio Declaration emphasizes the need for international cooperation “to conserve, protect and restore the health and integrity of the Earth’s ecosystem.”29 Chapter 17 of AGENDA 21 focuses on oceans and seas and elaborates on the theme of systems, noting that the oceans represent an integrated whole and underscoring the need for “new approaches to marine and coastal area management and development . . . that are integrated in content.”30 AGENDA 21 is well aware of the interplay of land masses and the oceans through human activities associated with agriculture, forestry, human settlements, industry, and tourism and the fact that much of the pollution entering into the seas and passing into the ocean’s food chain is from land-based sources. The lack of a global scheme to address land-based pollution is noted as an area meriting attention31 and led to 25 U.N. General Assembly, Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992) Annex I: Rio Declaration on Environment and Development. U.N. Doc. A/Conf.151/26 (Vol.I). The full text is available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (last visited Feb. 19, 2004). 26 The full text of AGENDA 21 is available at http://www.un.org/esa/sustdev/ agenda21.htm (last visited Feb. 19, 2004). 27 In its preamble, for example, the Declaration of Principles recognizes the earth as having an “integral and interdependent nature.” 28 See Lawrence Juda, Considerations in Developing a Functional Approach to the Governance of Large Marine Ecosystems, 30 OCEAN DEV. & INT’L L. 89 (1999) for the distinction between “politically defined space,” referring to the geographic area encompassed by particular human governance systems, and “ecologically defined space,” referring to the area over which natural ecosystems extend. 29 Rio Declaration, Principle 7. 30 AGENDA 21, § 17.1. 31 AGENDA 21, § § 17.18 and 19. This matter was addressed by the Global Program of Action, supra, note 22.

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the adoption of the Global Program of Action for the Protection of the Marine Environment from Land-Based Activities.32 Generally, the Rio meeting asserted the position that if care, forethought, and respect for the limits of natural systems were employed, the health and productivity of natural systems could be sustained. Among other things, states were called upon to “reduce and eliminate unsustainable patterns of production.”33 Such views clearly reinforced those found in the 1987 report of the World Commission of Environment and Development.34 In its influential report, Our Common Future,35 the Commission stressed that “Environment and development are not separate challenges; they are inexorably linked.”36 The concept of “sustainable development provides a framework for the integration of environment policies and development strategies.”37 Reflecting such views, the goal of integrating considerations of resource use with conservation and protection of natural systems and achieving sustainable development was a key element of the approach taken at Rio. In an attempt to move from a reactive to a proactive mode of thinking and action, the Rio meeting enshrined the controversial concept of precaution in the Declaration. According to Principle 15: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” And in its treatment of the oceans, AGENDA 21 emphasizes the need for approaches that “are precautionary and anticipatory in ambit” and specifically points to the relevance of precaution in the ocean environment.38 Note should also be taken of the Convention on Biological Diversity39 that was opened for signature at the UNCED meeting. The overriding importance of this treaty is in its conception of nature, the importance of maintaining variety among living organisms, diversity within species, between species, and in terrestrial, marine and other aquatic ecosystems. More specifically, article 3 of the Convention indicates that its three objectives are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits stemming from the utilization of genetic resources.

32

Supra, note 22. Rio Declaration, Principle 9. 34 The World Commission on Environment and Development, also known as the Brundtland Commission, was created in 1983 by the United Nations under the terms of General Assembly Resolution 38/161 (19 December 1983). The United Nations Secretary-General appointed Gro Harlem Brundtland of Norway as Commission Chairman. 35 WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987). 36 Id. at 39. 37 Id. at 40. 38 AGENDA 21, § § 17.1 and 17.21-17.22. 39 Convention on Biological Diversity, reprinted in 31 INT’L LEGAL MAT’LS 818 (1992), available at http://www.biodiv.org/convention/articles.asp (last visited Feb. 19, 2004). As of February 2004, 188 states and the European Union had become parties to the Convention. For a listing of party states, see http://www.biodiv.org/world/parties.asp (last visited Feb. 19, 2004). 33

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The documentation generated for and by the Rio meeting articulated a new perspective on ocean space, no longer seen simply as a location in which diverse resources are found but rather as a natural system with interrelated and interdependent parts. The ocean is now recognized to be a system affected by the cumulative impacts of individual uses both offshore and onshore, one whose interactions and dynamics are not fully understood and, accordingly, whose use should be approached with restraint, and with consideration for future users, that is, with a pronounced sense of stewardship responsibilities. A 1997 United Nations report provides an indicator that a systemic view of the ocean environment has become widespread and a basis for future policy development, noting that: The concept of integrated management of watersheds, river basins, estuaries and marine and coastal areas is now largely accepted in the United Nations system and in most countries as providing a comprehensive, ecosystem-based approach to sustainable development.40

As the ocean paradigm changes, so too will ocean governance. Indeed, change is evident in approaches to the ocean environment and its resources. It is apparent that ocean law, as embodied in the 1982 United Nations Convention on the Law of the Sea, is moving away from historical conceptions of “freedom of the seas” and toward what has been termed a “managed environment.”41 Now that the broad questions of ocean jurisdiction have been addressed in that Convention, attention is turning increasingly to the details associated with the needs of effective management within and between jurisdictional zones. In this context international law must be seen as a tool that can be used to promote coherent and integrated management and not simply as a device to provide for allocation of resources and space. While significantly enlarging the ocean areas coming under the jurisdiction of coastal states, the Law of the Sea Convention recognizes important roles for international organizations and arrangements in fields such as environmental protection, fisheries, and navigational safety. This recognition reflects a basic reality: the political/legal boundaries and zones created in accordance with the law of the sea (politically defined space) are not congruent with the boundaries and extent of natural systems (ecologically defined space). One of the great challenges of the new century will be to effectuate meaningful responses to this new awareness. The continuing development of regional arrangements for fisheries management,42 the UNEP Regional Seas Program,43 and the emergence of

40

Commission on Sustainable Development, Overall Progress Achieved Since the United Nations Conference on Environment and Development, U.N. Doc. E/CN.17/ 1997/2/Add.16, para. 3. 41 THE NEW ORDER OF THE OCEANS: THE ADVENT OF A MANAGED ENVIRONMENT (J. Giulio Pontecorvo ed., 1986). 42 For a review of efforts to bring international fisheries into line with ecosystembased paradigms, see Lawrence Juda, Rio Plus Ten: The Evolution of International Marine Fisheries Governance, 33 OCEAN DEV. & INT’L L. 109 (2002). See also Scheiber, supra note 6.

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the idea of management based on the concept of large marine ecosystems (LMEs)44 represent efforts to overcome the now recognized jurisdictional inadequacies stemming from the zonal approach of the law of the sea.

43 For an overview of the Regional Seas Program and the text of legal instruments it has generated see the UNEP Regional Seas Homepage at www.unep.ch/seas/rshome.html (last visited June 5, 2002). 44 On the concept of large marine ecosystems, see Kenneth Sherman and Lewis M. Alexander, Large Marine Ecosystems: A New Focus for Marine Resources Management, 17 MARINE POL’Y 186 (1993) and Lawrence Juda and Timothy Hennessey, Governance Profiles and the Management of the Uses of Large Marine Ecosystems, 32 OCEAN DEV. & INT’L L. 41 (2001).

CHAPTER 3

U.S. Policy, the Pacific Tuna Economy, and Ocean Law Innovation: The Post-World War II Era, 1945 to 1970 Harry N. Scheiber

Introduction The complex processes of innovation in ocean law immediately following World War II set in motion several trends in institutional and legal development that were to configure in profound ways the global debates of the 1950s-1970s, culminating in the 1982 U.N. Law of the Sea Convention. This is true especially so far as U. S. policy on tuna was concerned. The trend of these debates has continued into our own day, as evidenced by the great importance of recent efforts in ocean-law diplomacy to resolve the long-standing issue of whether and how highly migratory species (HMS) of tuna and tuna-like species on the high seas can be brought under effective international management for sustainable production.1 1

Reference is especially to the framework for Regional Fishery Management Organizations as provided in the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (the Honolulu Convention), Sept. 5, 2000, 40 I.L.M. 278, and also to the Atlantic tuna regulatory program under the ICATT Convention, done at Rio de Janeiro, May 14, 1966, 6 I.L.M. 293. 29 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 29-53. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Economic context was of great importance to the postwar developments in international relations and ocean-resources law. And the economic interdependence of nations engaged in ocean fishing enterprises and in fish processing and trade was an important element of that context. The concept of economic interdependence is usually invoked to describe contingent relationships involving elaborate flow patterns, as capital, labor, and goods move among regions or across national boundaries, with reciprocal impacts on the economies on each side. A special dimension is present, however, in cases that involve a common resource, especially an exhaustible resource that is found outside of any single nation’s accepted legal jurisdiction. In such cases, the ordinary parameters of economic interdependence are given further complexity by the legal and geopolitical contexts. Hence, when the possibility—even if only a remote possibility— of the resource’s depletion comes to the fore, the result can easily be intensified conflicts of interest between nations, with consequent diplomatic confrontations.2 A classic example of this conundrum is the case of the marine fisheries, and especially the debates concerning law for the exploitation and management of highly migratory species on the high seas—a question that has been central in the global debates of ocean law and policy since World War II.3 And in those debates the position of the U.S. Government, including its position on the HMS issue, has been of crucial importance. 4 The present study is intended to serve as an analysis of what we may call the “pre-history” of the modern Highly Migratory Species (HMS) controversies in ocean-law diplomacy. U.S. policies are the main focus here, with attention to the complexities and dynamics of the policy process; to the diplomatic and economic relationships between the United States and Japan, and between the United States and Latin America; and to the role of scientific concepts in the fashioning of policy positions on fishery management. These relationships were shaped in significant ways by the evolving roles of Japan and the United States to dominant roles in the political economy of Pacific tuna, involving both fishing of the Pacific tuna resource and the international trade in tuna products.5 2

See, inter alia, ORAN YOUNG, RESOURCE REGIMES: NATURAL RESOURCES AND SOCIAL INSTITUTIONS (1982) (theoretical analysis); M. J. Peterson, International Fisheries Management, in INSTITUTIONS FOR THE EARTH (Peter Haas et al. eds., 1993); GOVERNING HIGH SEAS FISHERIES (Olav S. Stokke ed., 2001) (on legal and implementation problems in the regional management of high seas species generally). 3 WILLIAM T. BURKE, THE NEW INTERNATIONAL LAW OF FISHERIES (1998); JAMES JOSEPH & JOSEPH W. GREENOUGH, INTERNATIONAL MANAGEMENT OF TUNA, PORPOISE, AND BILLFISH: BIOLOGICAL, LEGAL, AND POLITICAL ASPECTS (1979); DOUGLAS JOHNSTON, THE INTERNATIONAL LAW OF FISHERIES: A FRAMEWORK FOR POLICY-ORIENTED INQUIRIES (1965). Evelyne Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries 25 OCEAN DEV. & INT’L L. 255 (1994). 4 The authoritative study of general postwar U.S. oceans policy to the 1970s is ANN L. HOLLICK, UNITED STATES FOREIGN POLICY AND THE LAW OF THE SEA (1978). ROBERT FRIEDHEIM, NEGOTIATING THE NEW OCEAN REGIME (1992) (analysis of the tuna question and other fisheries issues as debated in the UNCLOS negotiations). 5 BURKE, supra note 3, chap. 5 passim; Jon Van Dyke & Carolyn Nicol, U.S. Tuna Policy: A Reluctant Acceptance of the International Norm, in TUNA ISSUES AND PERSPECTIVES IN THE PACIFIC ISLANDS REGION 105-32 (David J. Doulman ed., 1987).

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I. The Postwar “Pax Americana” and the Truman Fisheries Proclamation We take for granted today the inherited institutional structure in which any effort at innovation and reform in ocean law—the bringing of new law to ocean waters—is necessarily situated. Now we have the United Nations and its agencies, including the fisheries experts and activities of the U.N. Food and Agriculture Organization (FAO), as well as its environmental specialists and divisions; there is, of course, also the complex structure existing today in regional regulatory treaties and organizations that exercise jurisdiction over fisheries, marine pollution, and marine-environmental questions. Important new international agreements have been concluded that complement and augment the provisions of the 1982 UNCLOS. One thinks especially of the Biodiversity Convention, the Highly Migratory Species and Straddling Stocks Convention, the FAO fishery standards, and other initiatives that were given impetus by the Rio meeting—all of these initiatives looking toward more effective sustainable development and ecosystem protection.6 Both “soft law” principles and accepted “hard law” rules are coming into play, imposing new constraints (actual or potential) and articulating specific obligations and rights of States that amount in the aggregate to a continuing transformation of ocean law.7 Immediately after World War II ended, reforms of ocean law were debated in a setting—both as to doctrinal conventions and as to institutional structure— that was dramatically different from today’s setting. The U.N. and the other international organizations, including the Food and Agricultural Organization with its fisheries concerns, and other agreements of the modern era were in the immediate postwar years only being first established. More importantly, the United States, for a brief historical moment, was the unrivalled, globally dominant super-power. (Within a short time, of course, the rebuilding of the Soviet Union’s military and the beginning of the Cold War confrontation placed new constraints on American power.) Even into the early 1950s, the economic debilitation of the European nations devastated by the war, and the reliance of the Allies on U.S. assistance for reconstruction and for defense against the Soviet challenge, meant that American hegemony remained a cardinal fact of the postwar order in the West. 6 Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (entered into force Dec. 29, 1993); Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542 (1995) (entered into force on December 11, 2001), with 30 ratifications; FAO, FAO Code of Conduct for Responsible Fisheries (1995), available at http://www.fao.org/fi/agreem/ codecond/codecon.asp. 7 Both the historic and current-day initiatives are analyzed in various chapters of THE LAW OF THE SEA: THE COMMON HERITAGE AND EMERGING CHALLENGES (Harry N. Scheiber ed., 2000); and ORDER FOR THE OCEANS AT THE TURN OF THE CENTURY (Davor Vidas & Willy Østreng eds., 1998). Other chapters in the present volume illustrate the range of innovation and relative importance of recent institutional and doctrinal efforts at ocean law reform.

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Until the victory of the Communist forces in China in 1949 and the outbreak of the Korean War, the strength and reach of American power in the Pacific were founded on the U.S.-controlled occupation of Japan under General Douglas MacArthur as the Supreme Commander, Allied Powers (SCAP). There were tensions, to be sure, between the United 6WDWHV DQG LWV $OOLHVŠHVSHFLDOO\ the great powers of western Europe, now under siege as well by the pressures of anti-colonialism.but the pattern was for the U.S. position to prevail on any issue of central importance to American interests.8 As to doctrinal content of international ocean-resources law in 1945, the old doctrine of “freedom of the seas” was still widely accepted in international law when the war ended in August 1945. Very few bilateral and multilateral agreements were in force for international control of fisheries resources. Those few agreements that were in effect were highly restricted in their scope; the most important were the U.S.-Canadian agreements on Pacific salmon and halibut, and the whaling convention that was overhauled and given new form in 1946.9 The U.S. and British governments had been moving forward haltingly since the late 1930s, on different lines, toward formulating agreements that would regulate mesh size and otherwise address the problem of over-fishing in Atlantic waters. As of 1945, however, their efforts were still inconclusive.10 Withal, there was little indication as of early September 1945 that any major doctrinal change in ocean law was in the offing. It was widely assumed that the United States was committed, as it had been, to the traditional ocean regime. Indeed, enormous diplomatic difficulties presumably would stand in the way of any nation seeking to challenge the traditional U.S. (and British) position upholding the three-mile rule for territorial waters and for coastal-state jurisdiction over ocean resources. Against that background, the issuance of the two so-called “Truman Proclamations” of September 28, 1945 came as a shock to the global diplomatic community and to international lawyers. In the first of these proclamations, the U.S. Government announced that it was declaring U.S. jurisdiction and ownership of sea-bed resources, of course including offshore oil, to the limits of the Continental Shelf. The second Truman Proclamation, announced the same day, declared the apparent intent of the United States to exercise jurisdiction over its “coastal” fisheries, and especially anadromous stocks, by creating “conservation zones” out on the high seas beyond its territorial waters to possibly hundreds of

8

HARRY N. SCHEIBER, INTER-ALLIED CONFLICT AND OCEAN LAW, 1945-5: THE OCCUPATION COMMAND’S REVIVAL OF JAPANESE WHALING AND MARINE FISHERIES 9-50 et passim (2001). 9 Previously important was the North Pacific Fur Seal Convention of 1911 (314 U.N.T.S. 106) by which Japan, Russia, Great Britain and the United States, an agreement by which, among other provisions, sealing activity at sea was prohibited. When Japan withdrew in 1940, the treaty was terminated, but then a new agreement was reached on a provisional basis in 1957 and subsequently extended. ALBERT W. KOERS, INTERNATIONAL REGULATION OF MARINE FISHERIES: A STUDY OF REGIONAL FISHERIES ORGANIZATIONS 85-87 (1973). 10 Ann L. Hollick, The Roots of U.S. Fisheries Policy, 5 OCEAN DEV. & INT’L L. 61 (1978).

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miles distance.11 This second document, known as “The Truman Fisheries Proclamation,” was a stunning example of unilateralist action by a global superpower. It was undertaken with minimal consultation with other nations, excepting with Canada; and its claims for offshore jurisdiction over fisheries ran against the entire weight of what was then regarded widely as the authoritative rule in customary ocean law. Although its specific language was rather ambiguous as to the proclamation’s actual implementation, it was widely seen as a declaration that American control of a fishery might reach out hundreds of miles beyond the seaward limits of existing jurisdiction.12 At a minimum, the proclamation seemed to be in violation of the rule that the United States Government itself had long sought to enforce against other nations, for a limited territorial sea (three miles, in most cases, but no more than twelve in any) beyond which the classic regime of “freedom of the seas” must be honored.13

II. Responses to the Proclamation To the world community of ocean users, diplomats, and international lawyers, therefore, it appeared that the Pax Americana was going to entail a brazen American “grab” of ocean space and its bounty in fishery resources. The two proclamations destabilized the existing regime of freedom of the seas, with no clear indication of what the outcome would be should other coastal nations emulate the American initiative for extending jurisdiction. And of course other nations did exactly that. It was not the major powers among the Allies that moved initially to issue their own declarations of extended offshore fisheries jurisdiction—as perhaps might have been expected, as an extension of the Allies’ wartime cooperation. Instead it was a group of Latin American coastal states (followed by Iceland and later African and Asian states) that did so, with enormous consequences for the future development of ocean law.14 In this case of the U.S. action in September 1945, “bringing new law to ocean waters” was a process that was triggered with startling suddenness—and, one may fairly say, fecklessly—by the action of the world’s only superpower 11 Proclamation No. 2667, 3 C.F.R. 67 (on Continental Shelf resources); Proclamation No. 2668, 3 C.F.R. 68 (on fishery conservation zones beyond three miles offshore). 12 Harry N. Scheiber, Origins of the Abstention Doctrine in Ocean Law: JapaneseUS Relations and the Pacific Fisheries, 1937-58, 16 ECOLOGY L.Q. 23, 29-36 (1989); HOLLICK, supra note 4, at 22ff. 13 BURKE, supra note 3, at 2-3. Exceptions were acknowledged for control of smuggling and pollution, and for national security in wartime. 14 “Just as history is said to be what victors say it is, legal theory has tended to respond to the perspectives of the strongest. Thus, rather than mount any significant opposition [to the Truman Proclamations], nations used this ‘legal theory’ to make similar proclamations,” beginning with the Central and South American states. Paul Bamela Engo, Issues of First Committee at UNCLOS III, in THE 1982 CONVENTION ON th THE LAW OF THE SEA 34 (Proceedings of the Law of the Sea Institute, 17 Annual Conference, Albert W. Koers & Bernard H. Oxman eds., 1984); see also JOHNSTON, supra note 3, at 331-34; and ELLEN HEY, THE REGIME FOR THE EXPLOITATION OF TRANSBOUNDARY MARINE FISHERIES RESOURCES 6-7 (1989).

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state. As has often been observed, President Truman opened “Pandora’s box” with this action; the box could not be closed again.15 What made the situation that ensued almost incomprehensible to observers at the time, just as it remains today, was the U.S. Government’s response to the declarations of extended fisheries jurisdiction issued by Chile and other states immediately after the Truman Proclamation was published: The actions of those Latin American states was immediately opposed—on grounds of principle, not only as a matter of policy—by the U.S. State Department, which declared that the Latin American challenges to the three-mile rule (or its variants up to 12 miles) were illegal under accepted principles of the international ocean regime. Moreover, although the United States meanwhile went ahead with its implementation of the other proclamation of 1945 (on ownership of the Continental Shelf for the enhanced exploitation of offshore petroleum resources), Washington did not act to implement the Truman Fisheries Proclamation. Indeed, not until the mid-1960s did the United States move to extend its jurisdiction over fisheries beyond the three-mile line.16 The proclamation was a dead letter, although the U.S. Government did not explicitly acknowledge that fact until 1949: In that year the U.S. Department of State effectively repudiated it.17 American diplomats thus continued their unremitting (but largely unsuccessful) diplomatic efforts to persuade the nations that had emulated the American action to reverse course and restore the former limits of the narrow territorial sea and a restricted fisheries jurisdiction.18 Responding to what the State Department termed “the epidemic of exaggerated claims to high seas jurisdiction which broke out after the issuance of the Presidential Proclamation,” Washington admitted in instructions to its Latin American embassies that the terms of the Proclamation “permitted of more than one interpretation.” Still, the claims being made to extended jurisdiction—and especially extension of the territorial sea out beyond three miles—“ran counter to long-established principles of international law,” these instructions declared, hence must be opposed by the United States.19 Two imperatives had driven the policy process by which the United States repudiated the Truman Fisheries Proclamation. The first was the U.S. Government’s interest in protecting the navigation rights of the U.S. Navy throughout the world’s oceans, which meant that Washington could not afford the impetus that the Proclamation had given to extensions by other coastal states of jurisdiction—in some cases including claims of full sovereignty—beyond the three-mile 15

FRIEDHEIM, supra note 4, at 21. Harry N. Scheiber & Christopher Carr, Constitutionalism and the Territorial Sea: An Historical Study, 2 TERRITORIAL SEA J. 67 (1992) [hereinafter Scheiber & Carr, Constitutionalism]. 17 The repudiation was embodied in what may fairly be termed an official White Paper: Wilbert Chapman U.S. Policy on High Seas Fisheries, 20 DEPARTMENT OF STATE BULLETIN 67 (1949). Chapman was then the highest ranking fisheries officer in the State Department; his article was from an address presented in December 1948 to an audience in San Francisco. 18 HOLLICK, supra note 4, at 67-94. 19 State Department to Officer in Charge of the American Mission, San José, Costa Rica, April 14, 1949, f. 818.628/4, State Department Records, U.S. National Archives. 16

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limit. The second imperative was the political effect domestically of the intense pressures for protection of three-mile rule that were mobilized by the American distant-water tuna fleet and pursued in the tuna industry’s persistent lobbying of Congress and the Executive. The Pacific tuna fleet was based in Los Angeles and, increasingly, in San Diego; and its vessels were operating in the eastern tropical Pacific Ocean area offshore from Central America and part of South America, where they used pole and line methods and they fished for their bait from the inshore areas. By the tuna fleet’s alliance with the U.S. Navy officialdom in its campaign to maintain its access to Latin American coastal waters, and the single-minded priority the tuna fishermen’s leadership gave to the three-mile issue—and by the exceptional degree of influence that this tuna leadership had on key members of the U.S. Congress—the fleet had a remarkable impact upon the implementation of U.S. oceans policy.20 In the domestic politics of ocean policy, however, the tuna fishermen were notoriously opposed by the coastal fishing interests of the salmon industry, centered in Alaska and the State of Washington—formidable political opponents, who had been largely responsible for persuading the government to adopt the Truman Fisheries Proclamation in the first place as a way of keeping Japanese competition out of “their” waters in the Northeast Pacific Ocean.21 In the ensuing conflicts between the U.S. tuna operators and the Latin American states, the U.S. Government continued to take a hard line with respect to offshore fisheries jurisdiction and territorial-waters limits.22 And yet the United States was meanwhile developing a policy toward then-occupied Japan that would constrain the Japanese fleet from coming into the waters off Alaska and British Columbia coasts to fish North American salmon. Thus under pressure from Washington, Canada and Japan joined in incorporating the so-called “abstention principle” in the International North Pacific Fisheries Convention, signed in 1952. By terms of this agreement, Japanese fishing operators were excluded from the rich salmon fishery and also were barred from fishing other species in a huge area of the northeast Pacific Ocean. In other words, the United States successfully protected its salmon resources hundreds of miles out into the Pacific beyond its territorial waters, yet was never agreeable to itself “abstaining” (as Japan did under the 1952 agreement) from fishing tuna in the waters offshore of the Latin American states. Against this background, the present study will discuss the rise of the American tuna industry after 1945, the problems of maintaining the tuna fleet’s access to offshore waters of other coastal nations, and the complex economic and geopolitical relationships in the tuna

20

See, inter alia, Scheiber & Carr, supra note 16. In the global debates of ocean law in the Organization of American States and U.N. forums after 1950, the salmon fishing interests managed to obtain the tuna industry’s support—for a few years, at least—for the famous campaign by the U.S. Government to win support for the “abstention principle” by which coastal fisheries would have been given a legal instrument for protection (through extended jurisdiction over species found to be a maximum sustainable yield) against competition from distant-water fleets. See text below, at notes 77ff. 22 See generally BOBBIE B. SMETHERMAN & ROBERT SMETHERMAN, TERRITORIAL SEAS AND INTER-AMERICAN RELATIONS (1974). 21

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fishing and tuna trade regimes of the Pacific area—all leading aspects of the “pre-history” of the HMS debates of more recent times. The tuna fisheries were one of the most dynamic and profitable sectors of the global ocean fisheries economy for 30 years after World War II.23 In that period Japan and the United States were the two major fishing powers in the high-seas tuna sector, and they were also the leading nations in the international tuna trade. Hence there was special significance to their relations in ocean diplomacy in that era—an oft-neglected dimension of that diplomacy, complementing the U.S. efforts to protect the tuna fleet’s access to Latin American offshore waters. Both rivalry and cooperation were evidenced in various phases of the U.S.-Japanese diplomatic relationship concerning tuna. Moreover, the context of that bilateral diplomacy was made extraordinarily complex because of the segmented, multi-sectoral structure of the tuna industries in each nation: the American tuna canning industry had an interest in cheap supply of raw tuna, the opposite of the fishermen’s interest in protecting the domestic market from imports; and in Japan too, the canners and processors of frozen tuna had an interest in cheap supply, hence were often aligned against the fishing organizations that wanted to maximize export income by shipping to the American market— producing a conflict within Japan’s industry over the imposition (and size) of government export quotas that were periodically imposed in response to protectionist demands from the U.S. industry and the threat of higher tariffs.24 In reviewing the history of postwar ocean law issues, we discover evidence that it was remarkably early after 1945 that the U.S. Government began to conceptualize its policy on marine fisheries law on the basis of what became known later as the “species approach,” by which the rules of international law respecting HMS stocks on the high seas would be different from the rules for management of other kinds of fish species. That is to say, the U.S. concern to advance a species approach long pre-dated the time when American negotiators pressed for this approach in the U.N. meetings of the 1960s and afterward from which came the 1982 Convention. The species approach as it would be proposed by the United States was to exempt all tuna and other specified HMS stocks from coastal nations’ jurisdiction within their 200-mile Exclusive Economic Zones. Such HMS stocks would be subject to management—if managed at all, whether inside the EEZs or on the high seas beyond 200 miles—only through enforce-

23

Prior to 1940 global tuna harvests were never over 250,000 tons. Following World War II, the rise was steady and dramatic, reaching more than 1 million tons by 1970, or annual growth of 4.6 percent (and then increasing nearly 80 percent during the 1970s decade). James Joseph, International Tuna Management Revisited, in GLOBAL FISHERIES: PERSPECTIVES FOR THE 1980S 127 (Brian Rothschild ed., 1982). 24 And it was rendered even more complex for the governments of both these nations during the Occupation period in Japan (1945-1952), since the Allied powers continuously sought to influence the shaping of the HMS regime in the Pacific and in international law. Scheiber, supra note 9, passim. For the history of the extended “trade war” threats, counter-threats, and history of tariffs and quotas, see Harry N. Scheiber, Pacific Ocean Resources, Science, and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 1945-70, ECOLOGY L.Q. 1601, 1723-31 (1986) [hereinafter Scheiber, Chapman].

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ment of separate multilateral agreements.25 Hence “freedom of the seas” would prevail for tuna, while the EEZ areas would provide for coastal state control of most other fishing in the coastal areas. The outcome of this campaign was a virtual stalemate in the U.N. talks, resulting in a provision (Article 64) of the UNCLOS agreement that was justly deemed by commentators “a model of ambiguity,”26 and that proved to be a largely unworkable provision in the UNCLOS agreement.27 It is often remarked that the “species approach” was a purely political concept and a strategic move by the United States, not in any real sense based on a biological concept.28 (Indeed, it has frequently been said by the critics of American policy that the United States wanted the HMS designation for any high-seas fishery that the U.S. fishing industry wanted to fish!). And there is no denying that the species approach was consistent with—and protective of—the American tuna fleet’s interests and ambitions. As will be shown here, however, in the earliest postwar policy deliberations in the U.S. Government and the American fisheries community, the species approach was advanced by influential fisheries scientists as being based on realities of the natural world—that is, as a biological concept. In this respect, at least in the early phase of its discussion in U.S. policy circles, the species approach was not exclusively the instrument of naked self– interest. Rather, it was developed as a way of reconciling the distant-water and coastal fisheries interests not only of the United States but also of the fishing nations globally, and as a way of bringing rational scientific management to these precious marine resources.

III. Postwar Expansion of the American Tuna Fleet The thirty-year period following World War II witnessed a remarkable expansion in aggregate marine fishing harvests globally.29 Japan and the United States 25

The centrality of the “species approach” in U.S. ocean diplomacy, beginning ca. 1970, is discussed fully in Christopher Carr’s study, Chapter 4, infra. 26 Gordon Munro, Extended Jurisdiction and Management of Pacific Highly Migratory Species, 21 OCEAN DEV. & INT’L L. 293 (1990). 27 See Hey, supra note 14, at 56-60; JOSÉ YTURRIAGA, THE INTERNATIONAL REGIME OF FISHERIES FROM UNCLOS 1982 TO THE PRESENTIAL SEA 124-30 (1997); GOVERNING HIGH SEAS FISHERIES, supra note 2. 28 Thus Professor Burke writes: “The HMS category is political, not biological. Other species move even greater distances than tuna or other species listed in the annexe” to the 1982 UNCLOS, “but are not found on the list. However, because the political interest was confined to tuna, the number of species identified in the annexe to the treaty is limited.” BURKE, supra note 3, at 200. 29 Almost continuously since the mid-1930s, excepting the war years 1941-45 and to 1948, Japan has been the world’s leading ocean fishing power, by volume of catch and by value. The catch of leading nations was as follows, 1938-62, in thousands of metric tons live weight (rank in order of production shown here following the volume figure):

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were the principal distant-water tuna fishing nations at the time; and in all sectors of both nations’ tuna industries—i.e., fishing, processing, and export-import activities—the rise in activity was extraordinary in those years. The first surge of expansion came on the American side during the period from 1945 to the early 1950s. The immediate postwar global crisis in food supply—with a 10 percent decrease in global food production per capita, as the result of the war, and with still greater deficits in the war-devastated economies of the Soviet Union, Europe, and Asia—was especially serious with regard to protein supply. In response, both the United Nations development policies and U.S. foreign aid programs gave heavy emphasis to reconstruction and expansion of the fisheries and fish-processing capacity of recipient nations. 30 Stock levels in many of the world’s best deepwater fishery grounds had rebounded strongly following the suspension of much distant-water fishing during the war years 1939-45. The situation for the sardine industry on the U.S. Pacific Coast, however, was very different. The sardine—the mainstay of the California industry and in the 1930s perhaps the world’s most intensive commercial ocean fishery, harvested relentlessly throughout the war years—went into an alarming decline; and by 1949 the complete collapse of the sardine stock was imminent. To the north, moreover, the salmon industry, which historically was the greatest U.S. fishery in value of output and an important source of export earnings, was experiencing a damaging pattern of year-to-year fluctuations in availability. 31 Tuna offered a very different prospect. For by contrast with salmon and the sardine, the stocks of tuna if Pacific waters and elsewhere on the globe were abundant and largely unexploited commercially. Moreover, formerly undiscovered stocks were being identified by new research programs and by the enterprising exploratory voyages of the California-based fleet’s distant-water clippers.32 The U.S. tuna industry’s expansion meanwhile was given strong stimulus

World total

1938 20,840

1948 19,410

1958 32,460

1962 44,720

Japan China (PRC) USSR USA UK Canada Peru

3,678 (1) n/a 1.523 (3) 2,260 (2) 1,198 (4) 837 --

2,519(1) n/a 1,485(3) 2,416(2) 1,206(5) 1,053 930

5,504(1) 4,060(2) 2,621(4) 2,709(3) 999(8) 1,008 6,830 (2)

6,834(1) 4,090(3) 3,617(4) 2,905(5) 944(10) 1,115 --

(Source: 1962 FAO YEARBOOK OF FISHING STATISTICS, in JOHNSTON, supra note 3, at 19). The sudden appearance of Peru in the data was owing to the anchovy fishery. 30 UN, FAO, 2ND FOOD SURVEY 30-31 (1946); U.S. Dept. of Agriculture data, 1946. 31 See Arthur McEvoy & Harry N. Scheiber, Scientists, Entrepreneurs, and the Policy Process: A Study of the Post-1945 California Sardine Depletion, 44 J. ECON. HIST. 393 (1984). 32 The most important discoveries of stocks were the result of research after 1948 by a new program established by the U.S. Government in Hawaii (the Pacific Oceanic Fisheries Investigation) and by the research arm of the Inter-American Tropical Tuna Convention agency. For background of these projects and their early accomplishments, see Milner B. Schaefer, The Federal Programme with Relation to the Future Development of

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by rising demand in the consumer market, the result of changing dietary preferences and price advantages that made tuna an attractive table-food substitute for salmon and for beef products. The Southern California tuna fleets operated out of San Pedro and San Diego. The San Diego tuna fishermen worked on baitfishing vessels, many with brine refrigeration capacity, using a hook-and-line technology; but at San Pedro, the fishing port of Los Angeles, the tuna vessels also included some small purse-seiners (which, relying on nets, made no use of bait) that were transferred seasonally or permanently from the collapsing sardine fishery.33 The American tuna vessels operated mainly off the Mexican Coast, in the Galapagos, and elsewhere in the offshore waters of Latin America. The power seiner technology (which would be introduced and quickly adopted after 1956 by the San Diego fleet) and the massive clipper ship designs of a later era (with their sonar technology and spotter helicopter landing pad on board) were not yet known in the American industry. If technology was not yet at a highly advanced level, nonetheless small vessels and muscle power in the long-line and seiner fleets were producing impressive results.34 The San Diego-based clippers were 80 to 150 feet length, with a capacity of 125 to 225 tons or sometimes more, equipped to preserve the catch, and carrying crews of ten to twenty. They typically went out for ninety days in 1948-49, working waters as much as 2,500 miles from their home port. As the operations of the tuna fleet were extended southward below the Mexican-California boundary, however, vessel size increased and refrigeration equipment became standard for both hook-and-line and the old-style seiner vessels. Many tuna clippers had been seized by the U.S. Navy for military use during the war, and the industry relied on new construcPacific Fisheries, in Pacific Science Congress, 7th Congress, 4 PROCEEDINGS 634-38 (1949). The POFI is treated further in Section V, this chapter, infra. 33 Saul B. Saila & Virgil Norton, Tuna: Status and Trends (Resources for the Future/Program of International Studies of Fishery Arrangements, Paper #6) (1974). Also, the U.S. Government, which had commandeered many of the tuna clippers in the fleet in 1941-1942, aided in the rebuilding of the fleet with subsidies for re-conversion and construction immediately after the war. The California fleet had made only small catches of albacore, the highly prized white-meat tuna species, in the period from 1928 to 1934, but then the fishery had come back strongly in the late 1930s, especially in waters off Baja California (Mexico) and farther south. There was also a small albacore fleet that operated from Washington and Oregon, enjoying some good catches until the 1949 season, when the albacore virtually disappeared in their fishing area. After 1956, the albacore began to appear once again, and the Oregon-Washington fishery was at least a minor factor in the national tuna market. CALIFORNIA’S LIVING MARINE RESOURCES AND THEIR UTILIZATION 82-90 (Herbert W. Frey ed., 1971); H. C. Godsil, The Tunas, in FISH BULLETIN 11-27 (1949); Milner Schaefer, Management of the American Pacific Tuna Fishery, A CENTURY OF FISHERIES RESEARCH IN NORTH AMERICA 237-39 (Norman Benson ed., 1970); and letter of Harold Cary to A. W. Anderson, Jan. 29, 1953, Box 66, American Tunaboat Association Papers, in the SIO Archives (Scripps Institution of Oceanography Archives, University of California, San Diego). 34 See generally Arthur De Fever, Modern U.S. Tuna Vessel Construction, Design, and Future Trends, in THE FUTURE OF THE FISHING INDUSTRY OF THE UNITED STATES 13440. (DeWitt Gilbert ed., 1968); and MICHAEL ORBACH, HUNTERS, SEAMEN, AND ENTREPRENEURS: THE TUNA SEINERMEN OF SAN DIEGO (1977).

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tion and reconversion of older vessels to rebuild capacity. From 140 vessels with 24,325 tons capacity at the end of 1946, the tuna fleet increased to 212 vessels with 44,395 tons capacity four years later, and (as noted earlier) to 220 clipper vessels in 1951.35 The “long-range clippers” that were in operation by the early 1950s had a cruising range of over 10,000 miles and carried refrigeration sufficient to maintain them at sea without risk of spoilage losses until their catch gave them a full cargo.36 The resource itself was plentiful, though marine scientists had no idea how large the Eastern Pacific stocks overall might be. Despite rising volume of harvests, tuna prices in the American market were buoyed up into the early 1950s by the steady growth in domestic consumer demand.37 U.S. landings of tuna (nearly all being in San Diego and San Pedro) thus rose from 182.5 million pounds in 1945 to 269 million in 1947 and then over 400 million in 1950.38 Canned tuna sales in the American market increased from the pre-war level (in 1940) of 4 million cases to 9.5 million in 1950 and 19.0 million in 1960.39 An aggressive advertising and “consumer education” campaign launched by the industry meanwhile further advanced the acceptance of tuna in the American diet.40 The campaign was intensified after 1953, as western canning firms spent $8.5 annually to promote canned-tuna sales. Gift offers, sponsorship by canning firms of such popular radio programs as the “Liberace Show,” and research on effective use of brand names and other behavioral techniques all were mobilized in this elaborate—and very successful—marketing campaign.41 A key element in this pattern of market growth for the American tuna industry, however, was the absence of Japanese tuna from the American market. Before the war, the Japanese fleets had supplied American consumers with tuna from their fishing in Western Pacific waters and also from some smaller-scale operations fisheries that they conducted off the southern coast of South America. In the 1930s, imports from the Japanese constituted between 5.3 and 13.8 percent of the American domestic market for raw and frozen tuna; and they were 35

Testimony in 82nd U.S. Congress, 1st Sess., House of Rep., TUNA IMPORTS: HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON WAYS AND MEANS (1951) (hereinafter cited TUNA IMPORT HEARINGS); letter from Wilbert Chapman to Sec’y of State Dean Acheson, July 25, 1952, in Chapman Papers, University of Washington Library. 36 Pacific Tuna Fisheries: Jap, U.S. Canning, FISHERIES NEWSLETTER (Australia), Dec. 1948, at 6; Godsil, The Tunas, supra note 33. 37 As noted, tuna served as a substitute both for salmon and for the meat products (especially beef) that had been sharply affected by price inflation associated with postwar shortages of supply in the domestic market. Those shortages in turn were made worse by extraordinary export levels owing to foreign demand for meat. 38 Data from TUNA IMPORT HEARINGS, supra note 35; and CALIF. STATISTICAL ABSTRACT, 1970, at Table G-44. 39 Wilbert M. Chapman, Recent Trends in World Tuna Production and Some Problems Arising Therefrom (manuscript undated, but 1961 or 1962, at 4) (copy in files of the U.S. National Marine Fisheries Service, Southwest Fisheries Center, La Jolla, California). 40 NEW YORK TIMES, Magazine Section, Jan. 4, 1946 (advertisement); PACIFIC FISHERMAN, 1953 Annual, statistics on tuna. 41 PACIFIC FISHERMAN, June 1960, at 37; id., Nov. 1954, at l5, 18; id., June 1955, at 13; id., Sept. 1946, at 20.)

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from 15 to 25 percent of that market for tuna canned in oil. This competition from Japan had disappeared, of course, during the war. And in the immediate postwar years, the Occupation authorities prohibited Japanese vessels from operating in the Micronesian Island waters in which they had harvested exportable tuna prior to 1940. Mexico, Ecuador and Peru did export some tuna to the United States in the postwar years, but still the proportion of domestic consumption supplied by all imports combined ranged only from 1.7 to 5.7 percent until 1949.42 Thus nearly the entire benefit of the surge in U.S. tuna demand redounded to the benefit of the California clipper fleet and the West Coast canning firms that it supplied. This is not to say, however, that the California tuna fishermen were passive, politically, with respect to a possible revival of Japanese production and competition—nor did they neglect to pursue strategies that would solidify their position as the dominant fishing power in the Eastern Tropical Pacific area offshore from Central and South America. Briefly summarized, the tuna interests lent strong support to three initiatives in the formation of American policy: 1. The successful negotiation in 1949 of an important agreement for the study and eventually possible regulation of Eastern Tropical Pacific tuna, viz., the Inter-American Tropical Tuna Convention (IATTC). 2. The opening of a “second front” in the campaign to promote and protect American tuna fishing. This included backing Congress’s approval of the Pacific Oceanic Fishery Investigation (POFI), an elaborate and well-funded oceanographic project, based in Hawaii, with the principal initial objective of assisting expansion of the American tuna fisherman’s domain in the Pacific. But this front also featured the tuna fishermen’s vocal opposition to the Occupation authority’s moves to expand Japan’s fisheries capacity and fishing areas. In a closely related effort, the tuna interests lobbied vigorously, with only mixed results, for protective tariffs and other favorable trade legislation from Congress. 3. The enactment in 1954 by Congress of a law under which vessel owners whose craft were seized by Latin American nations while engaged in tuna or bait fishing in disputed waters would be reimbursed by the U.S. Government for any fines or confiscations. This last move was interlinked with the American commitment, which then seemed firmly established, to bringing the abstention doctrine, embodied in the 1952 INPFC, over into general international law.43 In the course of discussing these initiatives, this analysis will give some attention to the relatively neglected “second front” of the American tuna industry’s campaign for protection and expansion—viz., the pursuit of that industry’s interests in regard to U.S.Japanese economic and political relations, in a changing and uncertain pattern of economic interdependence.

42

TUNA IMPORT HEARINGS, supra note 35, at 16. This measure, the so-called Fishermen’s Protective Act, and the abstention doctrine are discussed more fully in the pages immediately following. 43

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IV. The “Species Approach” and the IATTC No sooner had the Truman Fisheries Proclamation been issued than the clash between the rich and well-established salmon industry of Alaska and the West Coast of the mainland, on the one side, and the emerging tuna industry based farther south in California, emerged—with controversy over the proclamation’s announced policy of creating conservation zones out to sea as its focus. When the State Department appointed Wilbert M. Chapman, a young fishery ichthyologist and political activist on behalf of the commercial fishing interests, as its top-ranking fisheries policy officer, Chapman immediately took it as matter of great urgency to work out a policy that could reconcile the parties to this clash of interests. 44 Initially Chapman had been an enthusiast for extending American jurisdiction beyond three miles, for protection of the salmon industry, Chapman was forced to respond to the unpleasant reality of Latin American states’ declarations of extended jurisdiction, a distinct threat to the U.S. tuna fleet’s prosperity and plans for expanded operations. The proclamation’s concept of extended jurisdiction, he wrote, was a blunt instrument, inevitably harmful to important distantwater fishing interests. The very things that made it so attractive to the salmon industry—“its broad sweeping implications—its new philosophy and its radical departure from holy precedent,” he wrote privately in 1947, convinced Chapman that a different approach must be crafted.45 The solution, he concluded, was to have the United States uses its superpower status to press in diplomacy for management agreements that would take account of difference in biological realities. “The management of fisheries in international waters,” he asserted, “can be quite easily and rationally undertaken on the basis of biological necessity provided that you move fishery by fishery, without making general rulings, and know enough about the biology of the stock of fish supporting each [commercial] fishery that you are dealing with.”46 Chapman believed that because the boundaries of the ecosystems supporting nearly all the fish stocks susceptible to commercial exploitation, and the dynamics of those stocks in ocean waters, typically were completely inconsistent with the jurisdictional boundaries of territorial seas of the coastal states— with the migrations of species such as tuna and salmon going hundreds (or even thousands) of miles beyond even the 200 mile line offshore—that the only way of managing such stocks on a sustainable basis was through international agreements by which sovereign states would regulate their flag vessels’ fishing operations.47 44

Scheiber, Chapman, supra note 24, at 1647ff. Letter from Chapman to Montgomery Phister, Nov. 24, 1947, in the Chapman Papers. 46 Id. (Emphasis added). Parts of the present discussion of Chapman’s strategy draw from material in Scheiber, Chapman, supra note 24, supplemented by the author’s more recent research in archival sources. 47 On the “MSY canon” and the multilateralist strategy of management, see Harry N. Scheiber & Christopher J. Carr, From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937-1976, 16 BERKELEY J. INT’L L. 10, 24-29, 40-42 (1998). 45

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As the idea of “maximum sustainable yield” (MSY) as a primary goal of fisheries management caught on, beginning in the late 1940s, the MSY concept became linked with the strategy of promoting international agreements. Moreover, many of the most distinguished fishery scientists and management experts in the younger postwar generation believed that the “species by species” approach was also the most promising technique for effective management even for fishery regimes of individual coastal states in dealing with their near-shore fisheries. Nor was Chapman alone in contending that MSY-oriented management by international agreement promised much better conservationist results than could be achieved by purely unilateral national management regimes that typically were subject to irresistible political pressures on their governments from the fishing interests.48 Here then, in this notion of responding “fishery by fishery” to scientific management objectives, we can identify the essence of what would be advocated over the ensuing decades as the “species approach.” And so the move to address the management problem “fishery by fishery” had its origin in a discussion focused on biological realities; this original basis did not mean, however, that political and economic self-interest could not be pursued in tandem with the more abstract objective. In fact, Chapman explicitly declared that by designing international agreements species by species, region by region, “our own [U.S.] position can be kept fluid to meet the ever-changing technological and economic pictures that our far-flung and vigorous fisheries present.”49 The strategic and self-interested facet of his policy became clear when in 1948-49 Chapman led the successful drive to bring Latin American states into a new organization for joint scientific study of tropical tuna in the Eastern Pacific, an organization that might in future days base a joint management program on its scientific findings. These negotiations culminated in the formation of the Inter-American Tropical Tuna Convention, and establishment under that agreement of a scientific commission under direction of the great American fisheries scientist Milner B. Schaefer. In presenting the convention to Congress for ratification, the State Department emphasized that the agreement carried to the tropical Pacific fisheries the “principles and practices” that had been established as a basis for sustainable scientific management in the salmon and halibut treaties with Canada.50 When the concluding talks for the IATTC were held with Costa Rica’s delegation in Washington in 1949, Chapman insisted that collaboration in tuna research was essential because in a few years’ time there might be evidence of excessive fishing and declining yields. A scientific program in place would provide the basis for sustainable management, he explained. Significantly, however, 48

These views were influential in the formulation of the management principles and obligations of states signatory to honor the MSY objective in the 1958 U.N. Convention (17 U.S.T. 138, 5559 U.N.T.S. 285, done at Geneva, April 29, 1958). See, inter alia, Chapman’s retrospective view of these issues in The Theory and Practice of International Fishery Development-Management, 7 SAN DIEGO L. REV. 408 (1970). 49 Letter from Chapman to Phister, July 22, 1948, Chapman Papers. 50 81st Congress, 1st Sess., SENATE EXEC. REPORT NO. 11 (1949) at 3-4; see also Charles B. Selak, Jr., Recent Developments in High Seas Fisheries Jurisdiction under the Presidential Proclamation of 1945, 44 AMER. J. INT’L L. 670, 677-78 (1950); and see Schaefer, supra note 32.

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Chapman dismissed from the outset any thought that a management regime would allocate the fish harvest on some equitable or other basis among the nations involved in the fishery. “There is no thought at all,” he said, “of the division of the yield.” A total quota would be set, and then “whoever gets there first can fish just as many fish as they can catch. That is the framework on which we are building.”51 Obviously, this fishery-Olympics approach would be to the great advantage of the U.S. tuna clippers, in any potential competition out at sea against the vessels then in operation by Latin American fishermen.52 The face that the American tuna interests put on the agreement had a different emphasis, of course: Having “by their energy and ingenuity developed a resource which was going to waste into a harvest of [Eastern Tropical Pacific tuna] which yields nearly 400 million pounds of food per year,” Chapman later declared, the American industry’s support of the IATTC agreement signaled a determination to sustain the productivity of the resource by charging the new “impartial international body” under that agreement with “the responsibility of guarding the productivity of the tuna resources.”53 In the years that followed, the IATTC research staff compiled a record of impressive accomplishment in its tuna studies, making important advances in bio-statistical theory and in physical oceanography in relation to fishery dynamics. The Commission also did serve the American tuna industry, however, in exactly the way that had been anticipated by tuna industry leaders in 1949. Thus a tuna industry executive wrote privately in 1955 that Chapman’s interest was, at least in part, by sponsoring “high class research” to be certain that the Commission could “spike any claim by Latin America that our tuna fishermen were depleting either tuna or bait fish by their [operations].”54 A leadership group in the industry summarized the Commission’s importance to American tuna interests in a statement issued in 1961: We have been assailed by claims of Latin countries to extra-territorial rights over the high seas. The intentions of these countries were, and are, to control the fisheries. The argument advanced was that we were despoiling the resource. The presence of the Tuna Commission [IATTC] was extremely useful—if not vital—to the maintenance of our fishery in certain areas over the past years. We were in a position to say that if there was over-fishing, the Tuna Commission would find it out and let us know.55

The same “species by species” approach, as the basis for bi- and multilateral agreements for scientific research and institutionalization that could later 51

Transcript of Proceedings: First Meeting of the U.S.-Costa Rica Fisheries Conversations, Monday, May 23, 1949, copy in the Chapman Papers. 52 Chapman indicated that in this respect he was following the model of the famous Canadian-U.S. bilateral halibut agreement for the West Coast that had been in effect since the early 1930s. Id.; see also text, supra note 50. 53 Letter of Chapman to Secretary of State Dean Acheson, July 25, 1952, Chapman Papers. 54 Montgomery Phister to Donald P. Loker, Sept. 19, 1955, Chapman Papers. 55 Minutes of March 23, 1961, Meeting of E. L. Morris et al. [tuna industry and fishermen’s union executives], copy in Chapman Papers.

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support sustainable management, was carried over by Chapman to the Atlantic arena as he engineered the negotiation of a Northwest Atlantic commission on lines similar to the IATTC.56 In future years, the objectives and strategy that marked these early State Department initiatives to address the challenges of postwar fisheries expansion were offered as models for marine management agreements, presented by U.S. diplomats in meetings of the Organization of American States and later the U.N. negotiations leading to the 1982 Convention.

V. The “Second Front”: Japanese-U.S. Relations, the POFI, and Trade Policy Although the prominent diplomatic initiatives that Chapman designed during 1947-50 were focused on relations with Europe and Latin America, the American tuna industry never lost sight of the possibility that its success could easily be threatened seriously by a resurgence of Japanese tuna fishing and exports of Japanese tuna products to the American market. Hence, upon issuance of the Truman Proclamation, the U.S. tuna interests immediately demanded that Congress finance ambitious new oceanographic investigations of Pacific waters; the industry sought, through such research, to locate rich tuna fishing grounds in the Central and South Pacific, and then to establish their fishing claims in those areas. In such event, they hoped, under terms of the new Proclamation they could seek to exclude other nations from those ocean areas and create a monopoly for themselves.57 It was never in doubt that the principal threat the American tuna industry feared was a possible re-expansion of Japanese tuna fishing into the waters of the western Pacific region (in particular the former Japanese Mandate area, now the U.S. Trust Territory) in which Japan had conducted highly profitable fishing operations prior to the war—and from which they were temporarily excluded under terms of the Occupation regime’s prescription of limited deepwater fishing zones.58 Congress responded in 1947 by authorizing a major tuna research project— the Pacific Oceanic Fishery Investigations (POFI), based in Honolulu and supplied with a laboratory and three well-equipped oceanographic vessels converted from the wartime fleet.59 The POFI project’s chief scientist early asserted that it was a key purpose of the agency’s research effort to head off the competition in the Pacific generally—more specifically, at the outset, “to retard active exploitation by the Japanese of the tuna fisheries of the eastern Pacific, at least until

56

International Commission for the Northwest Atlantic Fisheries, (ICNAF), 157 U.N.T.S. 158 (1949). 57 HOLLICK, supra note 4, and Scheiber, Chapman, supra note 24, provide analyses of the formation of the Truman Proclamation policy and its failure of implementation. 58 See map of authorized SCAP fishing areas and their progressive expansion in SCHEIBER, INTER-ALLIED CONFLICTS, supra note 8, at 59. 59 Scheiber, Chapman, supra note 24, at 406-11.

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American fisheries begin to make economic use of these resources.”60 As early as March 1949, while the POFI project was only in its startup phase, U.S. fishing agency experts had sought to impress upon the Navy (then in charge of the Trust Territories of the Pacific, the former Japanese Mandated Islands), that “U.S. interests should have an opportunity to explore fully the fishing potential of Trust Area waters and ‘catch up’ with [the] Japanese,” who enjoyed the advantage of knowledge of these waters from their pre-war fishing.61 In 1949, the U.S. fishery administrators in Washington were urging that POFI research was the basis for opening up to the American tuna fleet waters of the Trust Territory and the other areas which had “usable resources of tuna” in the central and western Pacific; and that, as such, the POFI project comprised the key to liberating the U.S. tuna fishermen from the increasingly stringent restrictions of access and license levies by the Latin American states.62 In this sense, POFI was operating at direct cross-purposes with General MacArthur’s policy in his direction of Japan’s economic reconstruction. For the Occupation authority remained dedicated to promoting the expansion of Japanese tuna fishing; and consistent with this policy SCAP would soon authorize Japan’s fishing fleets to re-enter the Trust Territory tuna waters.DQRFHDQDUHD where Japanese fishing operators then clearly enjoyed a comparative advantage (relative to the American tuna clippers) in distance from home ports. In addition, the Japanese advantage extended as well to labor costs, prior knowledge of the area, and mastery of a long-line multi-hook fishing technology well adapted to the South Pacific tuna waters.63 The POFI research program enjoyed early success in its exploratory tuna research, especially in the East Central Pacific where rich new yellowfin resources were located and opened to exploitation by the American fleet in the mid-1950s. The program was aggressively supported by lobbyists from the West Coast tuna industry and by Hawaii’s territorial government officials, and it was awarded 60 Oscar E. Sette, Memorandum to Chief of the Fishery Biology Branch, POFI, March 7, 1952 (manuscript), in Pacific Oceanic Fishery Investigations Files, U.S. Fish and Wildlife Service Records, RG 22, National Archives. (Emphasis added). 61 Quoted from Natural Resources Section, Memorandum for the Record, March 10, 1949, unpublished, NRS files, SCAP Records, RG 331, U.S. National Archives. 62 Asst. Director James, Opening Remarks, Oct. 7, 1949, to the POFI Tuna Industry Conference (manuscript), in POFI Files, f. 750.9, U.S. Fish and Wildlife Service Records, RG 22, U.S. National Archives. 63 SCAP, Natural Resources Section, THE JAPANESE TUNA FISHERIES (SCAP NRS Report No. 104) (Tokyo, 1948); SCAP, Diplomatic Section, Memorandum S-322.3: Extension of Japanese Fishing Area, April 30, 1949, manuscript in SCAP Records, RG 331, U.S. National Archives. The first authorization for Japanese vessels to fish in South Pacific tuna waters came on September 19, 1949 (an extension of the SCAP Zone eastward toward Midway, permitting access to an “important albacore region”). Then on May 11, 1950, a special area in the region of the Trust Territory was authorized for large-scale mothership-type tuna fishing expeditions, the fishing effort of which was closely controlled by SCAP. (SCAPIN 2146, Sept. 19, 1949; and SCAPIN 1097, May 11, 1950, in “Chronological List of SCAPINS on Areas Authorized for Japanese Fishing and Whaling,” unpublished document in SCAP Records, RG 331, National Archives. On the technology of the Japanese tuna fleet in the Trust Territory waters, see Jap. Sub-Surface Long Line Tuna Gear, FISHERIES NEWSLETTER (Australia), Sept. 1951, at 5-7.

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appropriations in volume sufficient to push it to a high relative position in overall U.S. federal research on fisheries—reaching $1,386,000 in 1956, for example, out of a total of just under $14 million on all coastal and deepwater fisheries. Only salmon research had a higher level of funding.64 The POFI researchers’ discovery of a large area of potential American fishing operations for tuna coincided ominously, however, with the re-entry of Japanese fishing fleets into the Trust Territory tuna grounds, authorized in 1950 by General Douglas MacArthur’s Occupation command.65 This authorization came, however, only after a heated debate within the State Department and over the vigorous objections from the fishery management agency in Washington and from the American Tunaboat Association, the industry’s well organization trade association.66 There quickly followed a surge in the volume of Japanese tuna exports to the United States. Indeed, by 1950 the resurgence of Japanese exports, supported by the tuna harvest Japanese fishermen enjoyed in the waters just opened to them by MacArthur, was placing severe pressure on the price structure of tuna in the American market.67 Although there was concern among members of Congress representing the West Coast fishing-port states, the official U.S. Government policy on trade openness was opposed to taking protectionist actions. In an address to a Boston meeting of fishery interests, for example, William C. Herrington, who had succeeded Chapman as the top State Department fisheries 64

The salmon research and services, which included hatcheries operation, were funded at $4.7 million; tuna at $1.5 million, of which $1.386 million was for the Pacific project; $1.184 was expended on shrimp research; and all other marine fisheries programs were at a level of $613,000 or less for each species or fishery. (USFWS data, quoted in Millions for Research, FISHERIES NEWSLETTER (Australia), Dec. 1956. 65 The first authorization to fish in distant-water western Pacific tuna waters actually came on September 19, 1949 (an extension of the SCAP Zone eastward toward Midway, permitting access to an “important albacore region”); and then on May 11, 1950, a large ocean area in the region of the Trust Territory islands was authorized—although only for mothership-type tuna fishing expeditions the size and fishing effort of which were closely regulated by MacArthur’s command. (SCAPIN order #2146, Sept. 19, 1949; and SCAPIN #1097, May 11, 1950, in “Chronological List of SCAPINS on Areas Authorized for Japanese Fishing and Whaling,” manuscript copy in Supreme Commander, Allied Powers [SCAP] Records, RG 331, U.S. National Archives.) For a report on the consequent Japanese expeditions with motherships and catcher boats, see PACIFIC FISHERMAN, Jan. 1952, at 32-33. 66 Chapman to Edward W. Allen, September 12, 1948, Chapman Papers. 67 Pressure on prices in the American market, attributed largely to the rising flood of imports of tuna from Japan, are described in letter of Albert M. Day, Director of the U.S. Fish and Wildlife Service, to Charles Carry, May 23, 1952, reprinted in CONGRESSIONAL RECORD, 98: 7906 (June 24, 1952). The current dollar price (not adjusted for inflation) of yellowfin received at U.S. Pacific Coast ports rose from 9.97 cents per pound in 1945 to 15.34 cents in 1950. In 1951-1959, despite continuing inflation, it ranged from 15.46 to 15.98 cents, a significant decline in real value received. Moreover, the official statistics on the parity ratio (defined as price received for yellowfin tuna in relation to price paid for costs), with the 1942 index as base at 100, showed a decline from 122 in 1947 to 110 in 1954 and 84 in 1956. The decline for skipjack was even more dramatic after 1951. (U.S. Bureau of Commercial Fisheries data, reprinted in the trade journal PACIFIC FISHERMAN, July 1958.)

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officer, declared it to be “basic U.S. policy to encourage the Japanese to increase the export of goods to acquire foreign exchange,” and predicted that as “a virtual certainty” tuna imports from Japan would increase rapidly.68 Indeed, the importation of tuna in frozen form rose sharply, from 9 million pounds in 1948 to 36 million in 1950 and 123 million in 1954; and Japan accounted for 50 to 80 percent of the annual total of these frozen tuna imports throughout the 1950s decade. Imports (again mainly from Japan) of tuna packed in brine—subject to a lower tariff—rose from 9.3 million pounds in 1951 to more than 309 million pounds four years later.69 In an immediate response to this development in their domestic market, the American Tunaboat Association began to campaign for Congress and the Federal Trade Commission to raise tariff barriers and impose quotas on Japanese imports. Although this campaign was largely unsuccessful at home, it did serve to frighten the Japanese government and tuna industry; a series of annual quotas on tuna exports moderated the flow of the Japanese product and eased the price pressure to some extent.70 Meanwhile, in the late 1950s the U.S. tuna fleet increased its operating efficiency enormously with the introduction of the powerwinch seiner and of nylon netting. The increased scale of fishing that these innovations permitted was truly remarkable. Using diesel power, the average size and capacity of the San Diego tuna clippers increased five-fold in the period 1950-65, and the range at sea of these vessels was greatly expanded. Moreover, the seiner technology freed the fleet from reliance on fishing for bait in Latin American waters.71 These developments in technology served effectively as a partial counterweight against competition from low-cost imports—and they provided the foundation for continued viability of American-flag tuna fishing well into the 1970s. That is not to say, however, either that Japan ceased to be a serious competitive threat or that other aspects of the competitive structure, reflecting economic interdependence in the political economy of Pacific tuna, relieved the pressures on the San Diego clipper fleet. There was some re-flagging of U.S. tuna vessels, and several owners took on foreign crews in Latin American ports; and some American-owned canners set up operations in Puerto Rico and the South Pacific. Japan, for its part, took full advantage the traditional “freedom of the seas” that still prevailed in most of the world to expand its tuna fishing area and effort in a 68

Herrington, Address to National Fisheries Institute Convention in Boston, quoted in 10 FISHERIES NEWSLETTER (Australia) No. 9, 1951, at 11. 69 Data are in 84th Congress, 2d Session, House of Rep., Committee on Merchant Marine and Fisheries, Subcommittee on Fisheries and Wildlife Conservation, ESTABLISHMENT OF A NATIONAL POLICY FOR COMMERCIAL FISHERIES: HEARINGS 60-64 (1956). 70 Some temporary tariff increases were voted by Congress or took effect fortuitously because of lapsing of some trade treaty terms with Mexico, but the Japanese were adept at shifting the proportions of their exports to take advantage of differential tariffs according to how the product was packed (frozen, in brine, canned, etc.), and in addition they relied on temporary voluntary export quotas to defuse pressures on Congress for comprehensive tariff increases on tuna imports. Scheiber, Chapman, supra note 24, at 1728-31. 71 Richard L. McNeely, Purse Seine Revolution in Tuna Fishing, PACIFIC FISHERMAN, June 1961, at 27-58; and see generally ORBACH, supra note 34.

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dramatic push into the South Pacific, the Indian Ocean, and, by the 1960s, even to the Atlantic coast of Africa.72 This expansion produced competition for U.S. exports to foreign tuna markets as well as the domestic consumer market; and meanwhile, the Latin American nations too were expanding their tuna fishing and canning industries, with much of the production aimed at the U.S. market. Some of the American canning firms were beginning to invest independently or in joint ventures in offshore locations including Latin America, where they obtained their raw product from foreign as well as U.S. flag fishing vessels. All these pressures would be compounded further in the late 1970s by the impact of U.S. legislation for the protection of dolphin in tuna fishing, raising the costs of operations for the American clippers and leading to a significant surge in the reflagging movement and the decline of tonnage and employment in the San Diego fleet.73 By 1961 the Japanese tuna fleet had also begun to move in earnest into the waters in the tropical Eastern Pacific that were under study by the IATTC. This change led the Commission to propose for the first time that IATTC shift from purely scientific work to active fishery management activity. Previously unexploited tuna stocks that Japan had been the first to fish commercially in the 1950s and early 1960s elsewhere on the globe had already begun to decline in their yields, as naturally happens when the first impact of commercial harvesting is felt. Thus the Japanese tuna fleets, still expanding in tonnage in the 1960s— their numbers also augmented by transfers of former salmon fishing vessels to the tuna fisheries, and now meeting new competition from Taiwan and Korea in their western Pacific fishing grounds—had important economic incentives to enter the rich tuna and skipjack grounds off the Latin American coasts.74 With the Japanese long-line tuna vessels adding their harvest effort in the Latin American coastal fishing grounds, alongside the larger U.S. tuna fleet and the smaller fleets of Ecuador and other Latin American nations, the pressure on the fishery resources in the IATTC area began to mount. Yellowfin tuna, the main species in the fishery, was the first to show signs of reaching (or even passing) the point of maximum sustainable yield, according to assessments by IATTC researchers.75

72

Brian J. Rothschild & Richard N. Uchida, The Tuna Resources of the Oceanic Regions of the Pacific Ocean, in THE FUTURE OF THE FISHING INDUSTRY (Symposium) (University of Washington, 1968) 73 See Dennis King, The U.S. Tuna Market, in THE DEVELOPMENT OF THE TUNA INDUSTRY IN THE PACIFIC ISLANDS REGION 66-67 (David J. Doulman ed., 1987). 74 Brian J. Rothschild, Major Changes in the Temporal-spatial Distribution of Catch and Effort in the Japanese Longline Fleet, in PROCEEDINGS OF THE [HAWAII] GOVERNOR'S CONFERENCE ON THE CENTRAL PACIFIC FISHERY RESOURCES (Thomas A. Maner ed., 1966); Yoshiaka Matsuda, Postwar Development and Expansion of Japan’s Tuna Fishery, in TUNA ISSUES AND PERSPECTIVES 71-91 (David Doulman ed., 1987). 75 Milner Schaefer, A Study of the Dynamics of the Fishery for Yellowfin Tuna in the East Tropical Pacific Ocean, 2 BULLETIN OF THE INTER-AMERICAN TROPICAL TUNA COMMISSION 247 (1957); Minutes, Fishing Industry Meeting, March 23, 1961, Possible Need for Management Regulations [in IATTC area], unpublished, copy in Chapman Papers.

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This development brought the interdependence of Japan and the United States to a new focus—a focus now, not upon trade or commercial diplomacy, nor (as had been true in 1949-50) on access to an area such as the Trust Territory waters where no active fishery was being conducted, but instead upon issues of sustainable resource management and potential depletion in the area of a species already under study. Both nations’ fleets, along with some smaller ones, were now fishing in the same waters at a time when scientists were raising warning signals as to declines in yield and, ultimately, a threat of depletion (at least of yellowfin) from excessive fishing. Although this sort of concern with resource management and sustainability had long been the leading issue in JapaneseU.S.-Canadian fishery diplomacy in relation to the North Pacific salmon and halibut, it was without precedent in the history of the Pacific tuna industries. The changing status of stocks, with rising competition, in the Eastern Pacific waters of the IATTC led the San Diego skippers to shift some of their effort in the next decade to fishing in distant Atlantic waters, from which they sailed to Puerto Rico to sell cargoes to newly established canning plants there. In the IATTC area the U.S. vessels’ share of the tuna catch had begun its historic decline from 90 percent of the region’s total in 1960 to only 55 percent by the late 1970s.76 Foreign investment by the canning companies formerly concentrated in southern California, mergers and take-overs of the old-established canneries by conglomerates and multinationals, and the entry into the tuna trade as well as processing and fishing by South Asian investment groups, worked only a few years later to further transform and “globalize” the tuna industry. With remarkable persistence and even more remarkable effectiveness, the American distant-water tuna fleet nonetheless continued to have a powerful influence on U.S. foreign policy with respect to ocean law. The cause of “freedom of the seas,” with its correlate of narrow territorial and jurisdictional offshore claims for coastal states, thus remained integral to the American government’s position on ocean law with regard to tuna—surviving as an exception for HMS species when the United States declared extended jurisdiction for offshore fisheries in the 1960s. Most remarkably of all, this position survived in the form of the HMS exception when the Magnuson Act established the U.S. exclusive economic zone of 200 miles in 1976, as the United States finally abandoned the three-mile rule and adopted the 200-mile exclusive economic zone concept to manage all fish species except the HMS category.77

VI. The “Abstention Principle” and the Fisherman’s Protective Act When Japan agreed to the “abstention principle” in the International North Pacific Fisheries Convention in 1952, it was a triumph of great magnitude for the Northeast Pacific Ocean salmon and halibut interests of Canada and the United States. U.S. diplomats were optimistic that this Convention could become a 76 77

Joseph, supra note 23, at 135. Scheiber & Carr, Constitutionalism, supra note 16.

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model for scientifically based, sustainable international fisheries management globally; and they pressed hard, though in the end unsuccessfully, to make the concept a key element of the general Law of the Sea that was being debated in the U.N. meetings from 1955 and 1958.78 To the California tuna fleet interests, however, the abstention concept appeared a recipe for disaster—for it could be a model by which the Latin American nations could try to legitimate their claims to extended offshore jurisdiction, serving, as the Truman Fisheries Proclamation had done, to inspire further moves toward abandonment of the old three-mile rule in the ocean regime.79 The State Department had brought into its policy planning advisory boards on fisheries policy, and into its delegations in international talks, representatives both of the tuna distant-water fleet and of the various coastal fishing interests (including most prominently the salmon interests of Washington and Alaska). William C. Herrington, Chapman’s successor as top fisheries officer, crafted a diplomatic strategy designed to maintain protection through “abstention” in the salmon-halibut area of the Northeast Pacific while at the same time keeping the pressure on the Latin American states to revert to a narrow territorial sea and a retreat from their claims to extended jurisdiction over offshore fishing by the tuna fleet. The tuna industry’s representatives gave their grudging support to this diplomatic strategy in an uneasy political alliance that was cemented when the salmon industry leadership exerted its very considerable influence in Congress to join with the tuna interest in gaining enactment in 1954 of the Fishermen’s Protective Act.80 Under terms of this law—a bill, known among insiders as “Chapman’s ‘freedom of the seas’ bill,” because Chapman, now out of government and employed as a strategist for the tuna fleet, had lobbied for the law— the U.S. Government was obliged to pay any fines that were levied against American-flag vessels seized by other nations for fishing in waters that those states had claimed under extended jurisdiction doctrine. It also required the State Department to negotiate for release of such vessels—a matter of no small importance at the time, as numerous U.S. flag tuna boats had been seized and heavy fines levied. By thus forcing the public treasury to serve as their insurers against loss in fishing troubled waters, the tuna leaders were content to permit Herrington to pursue his large strategy of advocating the abstention principle in the momentous international negotiations on ocean law during the late 1950s.81

VII. Conclusion Herrington’s project for elevating the abstention idea to the status of a universal principle of ocean law crashed on the rocks of political realities, and in the U.N. talks in 1958 and 1969 it failed to win the votes needed to give it serious consid78 See William Herrington, In the Realm of Diplomacy and Fish: Some Reflections on the International Convention on High Seas Fisheries, 16 ECOLOGY L.Q. 101 (1989). 79 HOLLICK, supra note 4, at 100-102. 80 Act of Aug. 27, 1954, ch. 1018, 68 Stat. 833 (codified as amended at 22 U.S.C. secs. 1971-1980 (Supp. II 1984). 81 Scheiber, Chapman, supra note 24, at 1731-33.

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eration. The prevailing current was the one that had been set in motion inadvertently by the Truman Proclamation in 1945—the movement toward extended jurisdiction, culminating in the formal codification of the 200-mile exclusive economic zone (EEZ) concept when the 1982 U.N. Convention was approved. Throughout, however, the U.S. delegation in the U.N. talks contended that the adoption of a species approach was the best assurance of “rational use and conservation of all fish stocks.”82 The abiding strength of the tuna interest in American politics and the foreign policy process was vividly expressed, moreover, in the persistence of the idea that tuna and tuna-like HMS fish should not be under the sole control of coastal nations in their EEZs. As the U.S. representative declared in the 1972 U.N. talks, it was Washington’s position that full jurisdiction by coastal states over HMS stocks did not conform to the biological imperatives: “the highly migratory tuna should be managed pursuant to multilateral arrangements,” with coastal state regulations within their EEZs subordinate to international standards. Acknowledging the dilemma that the United States faced in having a division of interests in its fishing industries, he said: It is widely understood that the United States shares the interests of many other coastal States. However, the fact that over 80 percent of our fisheries are off our own coast does not mean that we are prepared to abandon the remaining 20 percent—the distant-water segment of our industry. There are reasonable ways to accommodate the interests of both coastal and distant-water fishing States.83

The detailed U.S. proposals put before the 1972 meeting, calling for the HMS exception, were a reflection, he declared, of “our continuing belief that both sound conservation and rational utilization must take into account the biology and distribution of living marine resources.”84 A great irony in the history of the early Law of the Sea negotiations was the fact that while Japan resisted the thrust of U.S. diplomacy—especially when the U.S. commitment to abstention gave way to a series of concessions on 6-mile and 12-mile proposals—the Japanese diplomatic position favoring distant-water fishing activities, and hence narrow offshore claims by coastal nations, brought old rivals into a common cause.85 Japan’s interest, and equally the interest of the 82 Statement by the Honorable John R. Stevenson, United States Representative to the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, August 10, 1972 (copy in author’s files); see also UNITED NATIONS, COMMITTEE ON THE PEACEFUL USES OF THE SEABED AND THE OCEAN FLOOR BEYOND THE LIMITS OF NATIONAL JURISDICTION, SUMMARY RECORD OF THE 83RD MEETING, held on Thursday, Aug. 10, 1972, at 63, 64, U.N. Doc. A/AC.138/SR.83 (1972). 83 Id. 84 Id. 85 See Shigeru Oda, Japan and the United Nations Conference on the Law of the Sea, JAPANESE ANNUAL OF INTERNATIONAL LAW (1959); Arthur Dean, The Geneva Conference on the Law of the Sea: What Was Accomplished? 52 AM. J. INT’L L. (1958); and YTURRIAGA, supra note 27, at 32-33. In his 1959 article, supra, and other writings in the years that followed, Judge Oda presciently observed that in the U.N. debates the maritime and coastal nations made allocations of ocean space for jurisdictional and exploitative purposes the focus of attention—giving insufficient attention to the issue of the equitable principles on which access rights should be distributed (i.e., assigned).

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politically powerful British trawling association, coincided now in the arena of ocean law diplomacy with that of the American tuna fleet. There followed in international forums a hard-fought but losing battle waged by the distant-water fishing coalition to preserve what remained of the older, pre-war legal order of the oceans for marine fisheries.86

86

The path toward American acceptance of the 200-mile zone was a politically hazardous one for all concerned; and in the end, it was not the Executive but rather Congress—impelled by pressures from the coastal fishing interests in the face of rising competition and heavy overfishing in offshore waters—that took the decisive step for declaration of the 200-mile zone. This was done against the background of apparent indecisiveness and lack of movement in the Law of the Sea talks in which negotiators were grappling inconclusively with the extended jurisdiction issues. See Carr, Chapter 4, infra; Scheiber & Carr, Constitutionalism, supra note 16; and id., Extended Jurisdiction, supra note 47, for discussions of various aspects of post-1970 policy process and outcomes in the U.S. domestic debate.

CHAPTER 4

Transformations in the Law Governing Highly Migratory Species: 1970 to the Present Christopher J. Carr

I. Introduction The codification of extended fisheries jurisdiction in the 1982 Law of the Sea Convention would lead to dramatic changes in the international law and diplomacy for tuna fisheries. A regime of theoretically unhampered access by distant water fleets to rich tuna grounds just beyond the territorial waters of coastal states would be replaced by one recognizing coastal state sovereign rights and interests in those resources such that by 1990 all states acknowledged the right of coastal states to charge fees for access to tuna in the waters extending 200 miles from their coasts. However, in the twenty years between the convening of the Third Law of the Sea Conference and 1990, the United States would play a singularly important role in resisting the claims of coastal state jurisdiction over tuna and in promoting, instead, international management of tuna resources both within and beyond areas of national jurisdiction. Since 1990, following universal recognition of coastal state jurisdiction over tuna within the 200-mile EEZs, international and regional developments have further addressed, but not ulti-

55 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 55-94. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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mately resolved, the tensions between coastal and fishing states over tuna conservation and management, both within and beyond EEZs. This paper canvasses developments in the international law and diplomacy for tuna fisheries from 1970 to the present. Its particular focus is the impact of the United States on these developments in light of that country’s role as the leading opponent of the movement to subject tuna to exclusive coastal state management authority. Considered first here will be the changes in the international law governing jurisdiction over highly migratory species that were negotiated at the Third Law of the Sea Conference. Next, the paper considers the formal expression of U.S. opposition to coastal state jurisdiction over highly migratory species as reflected in the terms of the U. S. Fishery Conservation and Management Act of 1976. The paper then turns to the evolution of regimes for tuna fisheries in the South Pacific, which were strongly influenced by the U.S. juridical position that tuna could not properly be subjected to exclusive coastal state management authority. The paper next deals with factors that led the United States to reverse its juridical position, expressed in amendments to the Fishery Conservation and Management Act in 1990 to include tuna within U.S. management jurisdiction. Further refinement of general international legal principles for tuna conservation and management as elaborated by the United Nations Fish Stocks Agreement is discussed next. Finally, the paper examines implementation of these principles in the establishment of a multilateral tuna conservation and management commission for the Western and Central Pacific Ocean. This paper concludes that although there is now worldwide agreement that tuna may appropriately be subject to coastal state jurisdiction within exclusive economic zones, the extent to which coastal state regulation of tuna will be consistent with the measures adopted by international and regional organizations for those species remains to be determined. While ambiguities left unresolved by the 1982 Law of the Sea Convention’s treatment of tuna have been considerably narrowed, there remains considerable uncertainty over the competence of coastal states and international and regional organizations, respectively, to regulate tuna both within and beyond EEZs, so that an “inside-outside” problem persists.

II. The Third Law of the Sea Conference and the Triumph of Coastal State Jurisdiction Extended fisheries jurisdiction presented a particular quandary for the United States, since it is a country with both coastal fisheries and distant water interests. In the twenty-five years following World War II, the United States had opposed the claims of coastal states to jurisdiction over fishery resources beyond their traditional territorial seas. This position was driven principally by the Department of Defense, which was concerned to prevent “creeping jurisdiction” that would impair the ability of U.S. naval vessels to transit strategic straits and otherwise enjoy freedom of movement, and by U.S. tuna interests which sought similar operational freedom in the waters off the coasts of Latin America. In the

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1960s, U.S. coastal fishermen secured legislation first, to exclude foreign fishermen from the U.S. territorial sea and, later, to extend U.S. fisheries jurisdiction to twelve miles.1 U.S. tuna fishermen opposed the 1966 legislation that extended U.S. fisheries jurisdiction to twelve miles, fearing it would legitimate claims to extended jurisdiction by Latin American states. Meanwhile, they secured other legislation to protect their interests, including amendments to the Fishermen’s Protective Act and the Pelly Amendment of 1968, to deter seizures of their vessels and insure them against financial loss in case seizures did occur. The split between U.S. coastal and distant water fishermen manifested itself in the development and evolution of the U.S. fisheries position for the Third Law of the Sea Conference. From 1971 to 1973, the United States advocated the “species approach” to fisheries jurisdiction, whereby coastal state jurisdiction over fisheries would differ by species. Under the species approach proposed by the United States, coastal states would enjoy preferential rights to coastal and anadromous stocks beyond their territorial seas, but highly migratory species would be regulated by international or regional organizations. In 1974, at the first substantive session of the Law of the Sea Conference, the United States significantly modified its fisheries position by accepting a 200mile economic zone. The new U.S. fisheries policy combined the species and zonal approaches by providing for coastal state jurisdiction over coastal species in a 200-mile zone but retaining the species approach for highly migratory species and anadromous stocks. While the U.S. position recognized coastal state enforcement authority with respect to highly migratory species within the economic zone, it provided for the content of regulations to be enforced within the economic zone to be specified by an international or regional fishing organization. The acceptance by the United States of a 200-mile zone was strongly influenced by then-current congressional debate of 200-mile legislation and by the fact that a consensus had developed, or was developing, on a 200-mile zone as a part of a new Law of the Sea Convention. American tuna fishermen, however, viewed acceptance by the United States of the 200-mile zone as an abandonment of the United States government’s longstanding commitment to protect their interests. At the Law of the Sea Conference, tuna management was the subject of much controversy. The U.S. proposal, which would have provided a strong international management element for tuna within the economic zone, was not accepted. Instead, a formulation that side-stepped the issue of whether a coastal state or an international organization would develop regulations which the coastal state would implement in its economic zone emerged from the 1975 Geneva Session in the Informal Single Negotiating Text. This article would become, without substantive change, Article 64 of the Law of the Sea Convention. In leaving unresolved this fundamental issue of authority, the article invited disagreement over rights to fish for and regulate the fishing of tuna that continues to this day. 1

See Fishing Act of 1964, PL 88-308, 78 Stat. 194 and 12 Mile Act (1966), PL 89-658, 80 Stat. 908; see generally Harry N. Scheiber & Chris Carr, Constitutionalism and the Territorial Sea: An Historical Study, 2 TERRITORIAL SEA J. 67 (1992).

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A. The Evolution of the U.S. Fisheries Position at the Law of the Sea Conference For most of the 1960s, the United States opposed convening a third Law of the Sea Conference, fearing that any such effort to reach agreement on the limits of the territorial sea and contiguous fisheries zone would reveal scant support for the narrow three-mile territorial sea and possibly galvanize those states supporting a territorial sea of twelve miles or greater.2 However, by 1967, following a proliferation of coastal state claims to extended jurisdiction, a consensus had developed within the U.S. government “that the absence of a new agreement did not preserve the status quo but only engendered greater chaos.”3 In that year, the U.S. and Soviet governments reached an informal understanding on the need for a new Law of the Sea Convention, with the United States advocating generous treatment of coastal fishing interests as necessary to secure a territorial sea of no more than 12 miles and freedom of transit passage through straits.4 In 1970, the United States prompted the United Nations General Assembly to vote to convene a third Law of the Sea Conference by proposing a “package” approach of a 12-mile territorial sea, unrestricted freedom of passage through straits, and preferential fishing rights for coastal states beyond the territorial sea.5 The U.S. domestic fishing industry had not participated in formulating the 1970 U.S. policy.6 Predictably, the American distant water fishermen reacted negatively to the proposal for recognition of coastal state preferential rights, whereas the coastal fishing interests viewed it favorably. 7 1. The Species Approach Beginning in 1971, with the industry now actively involved in the policy process, U.S. proposals for the Law of the Sea would reflect the split between distant water and coastal interests. From 1971 to 1973, U.S. proposals to the Seabed Committee set forth the “species approach” to fisheries jurisdiction, whereby coastal state jurisdiction over fisheries would differ by species. While the United States would, over the course of these three years, make slight variations in the “species approach,” its position essentially remained the same, viz., that beyond 2 See Historical Studies Division, U.S. Department of State, United States Policy Regarding the Oceans and the Law of the Sea, 1960-1967, Research Project No. 1031-B (June 1974) 2-22 [hereinafter DOS 1974 Study]. 3 DOS 1974 Study at 77. 4 See ANN L. HOLLICK, U.S. Foreign Policy and the Law of the Sea 174-75 (1981) [hereinafter HOLLICK]. 5 See id. at 220-21, 232-38; see also Reports of the United States Delegation for a Third United Nations Conference on the Law of the Sea (Myron H. Nordquist & Choonho Park, eds. 1983) [hereinafter U.S. UNCLOS Delegation Reports] at 31. 6 See HOLLICK, supra note 4, at 237. 7 See id. at 267-68. Following congressional intervention, the domestic industry was given a formal role in the policy process and the split within it was institutionalized by the inclusion of two industry seats, one for coastal and the other for distant water interests, on the Advisory Group on Law of the Sea, formed in 1972 to advise the Executive Branch in the formulation of Law of the Sea policy. See id. at 241, 266-68.

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twelve miles, coastal states would enjoy preferential rights to coastal and anadromous stocks, but highly migratory species would be regulated by international or regional organizations.8 Beginning in 1974, the approach of the United States to fisheries issues at the Law of the Sea Conference would be profoundly influenced by Congress’ consideration of legislation to establish a 200-mile zone for the United States. While a variety of bills to extend U.S. fisheries jurisdiction had been introduced over the previous half decade, Congress had not given serious consideration to any of them. This changed with the introduction of an “Interim Fisheries Zone Extension and Management Act of 1973” by Senator Warren Magnuson, the powerful chairman of the Senate Commerce Committee, who had dominated fisheries policy for the better part of the three decades he had represented Washington State in the Senate and after whom the nation’s framework fisheries law—the Fishery Conservation and Management Act (“FCMA”) of 1976— would be named.9 The Executive Branch opposed Magnuson’s 200-mile legislation on a number of grounds, including that it would undermine U.S. negotiators at the Law of the Sea Conference, violate international law and prompt other nations to do the same by unilaterally extending their jurisdiction, and harm U.S. distant water interests.10 Tuna industry representatives charged that acceptance of a zonal approach, embodied in Magnuson’s 200-mile legislation, represented a break from the species approach long agreed upon by the U.S. fishing industry and reflected in the U.S. fisheries proposals at the Law of the Sea negotiations. 11 According to one tuna industry spokesman, unilateral action would destroy the InterAmerican Tropical Tuna Commission (IATTC), undercut the U.S. fisheries position at the Law of the Sea negotiations, prompt unilateral extensions of jurisdiction by other countries leading to more seizures of U.S. vessels, and render 8

See id. at 268-70; see also 2 SATYA N. NANDAN & SHABTAI ROSENNE, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 650-51 (1993) [hereinafter Nandan & Rosenne, UNCLOS COMMENTARY]; John R. Stevenson & Bernard H. Oxman, The Preparations for the Law of the Sea Conference, 68 AM. J. INT’L L. 1, 14-23 (1974) [hereinafter, Stevenson & Oxman, Preparations]; U.S. UNCLOS Delegation Reports (1983) at 46-47. Over the three years, the United States modified its species approach to confer more robust coastal state preferential rights, which it at the same time sought to qualify by a full utilization principle, requiring coastal states to grant access to that portion of a fish stock it could not itself use. See Stevenson & Oxman, Preparations at 21-22; see Hollick, supra note 4, at 270; see U.S. UNCLOS Delegation Reports (1983) at 46. 9 See 119 CONG. REC. 19407 (1973) (statement of Sen. Magnuson introducing the Interim Fisheries Zone Extension and Management Act of 1973, S. 1988). 10 See John Norton Moore to Magnuson, Jan. 18, 1974 at 2-4, attached to Wright to Magnuson, Jan. 18, 1974 in Magnuson Papers (Walsh Subgroup), Box 1, Floor BookFolder 4. 11 See Interim Fisheries Zone Extension and Management Act of 1973-Parts 2 and 3: Hearings Before the Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce, 93rd Cong., 2d Sess. (1974) [hereinafter 1974 Commerce Committee Hearings] at 524 (testimony of Charles R. Carry, Executive Director, American Tuna Research Foundation, Inc.).

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the Fishermen’s Protection Act (“FPA”) ineffective because seizures within 200 miles would no longer occur on the “high seas” as required for violation of that Act.12 The most important segments of the U.S. shrimp industry also opposed 200mile legislation, fearing that it would prompt unilateral action leading to the exclusion of distant water shrimp vessels from their traditional fishing grounds off the Atlantic coast of Latin America and in the Gulf of Mexico. 13 In addition, some in the Pacific Northwest salmon industry also opposed the legislation out of concern that unilateral action would prompt the Japanese to abrogate the North Pacific Fisheries Convention of 1953 and begin setting on salmon on the high seas east of the abstention line specified by that treaty.14 2. U.S. Acceptance of a 200-Mile Zone At the first substantive session of the Law of the Sea Conference, held in Caracas in summer 1974, the U.S. significantly modified its fisheries position by accepting a 200-mile economic zone. The new U.S. policy combined the species and zonal approaches to fisheries jurisdiction: coastal species would be subject to the zonal approach (under a 200-mile economic zone); highly migratory and anadromous species would be subject to the species approach. 15 With respect to highly migratory species, the United States agreed that the coastal state would enforce fishing for such species within the economic zone, but insisted that the content of such regulation be provided by an international or regional fishing organization.16 In this respect, the U.S. proposal carried forward from prior U.S. proposals an emphasis on the role of international and regional fishing organizations in managing highly migratory species, and called for coastal and fishing states to participate in such organizations, or to establish them, where they did

12 1974 Commerce Committee Hearings at 477-494 (statement of August Felando, General Manager, American Tunaboat Association). 13 See id. at 654-665 (testimony of William N. Utz, Executive Director, National Shrimp Congress), 666-672 (testimony of Robert G. Mauermann, Executive Director, Texas Shrimp Association), 672-79 (testimony of C.W. Sahlman, on behalf of the American Shrimpboat Association, et al.). 14 See, e.g., id. at 680-88 (testimony of Walter V. Yonker, Executive Vice President, Association of Pacific Fisheries) and 692-693 (testimony of William G. Saletic, Executive Manager, Seiners Association). On the International North Pacific Fisheries Convention, see Harry N. Scheiber, Origins of the Abstention Doctrine in Ocean Law: JapaneseU.S. Relations and the Pacific Fisheries, 16 ECOLOGY L. Q. 23-99 (1989). 15 HOLLICK, supra note 4, at 270-71; see also U.S. UNCLOS DELEGATION REPORTS (1983) at 71; John R. Stevenson & Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 AM. J. INT’L L 1, 16-17 (1975) [hereinafter Stevenson & Oxman, Caracas]; 2 NANDAN AND ROSENNE, UNCLOS COMMENTARY 651-53. 16 Stevenson & Oxman, Caracas, supra note 15, at 17.

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not already exist.17 The U.S. proposal also addressed “fees, special allocations, enforcement rights, and other protections for the coastal state.”18 With the close of the Caracas session, it appeared a fait accompli that highly migratory species would be subject to coastal state regulation in the economic zone. Only Japan, which proved woefully ineffective at the Law of the Sea negotiations, refused to recognize coastal state jurisdiction over highly migratory species in the economic zone.19 The only question remaining appeared to be whether regulations enforced by the coastal state in its economic zone would be developed by international or regional organizations, or instead unilaterally established by the coastal state. The U.S. proposal called for the former, while the proposals of more “coastal” countries called for the latter.20 Members of the U.S. Congress felt that their consideration of 200-mile legislation had played a major role in the acceptance by the United States of a 200mile economic zone at Caracas.21 Tuna industry representatives concurred with this assessment, and charged that statements made by members of Congress in support of 200-mile legislation while the Caracas session was ongoing were “a stab in the back” of the tuna industry.22 Although a consensus for a 200-mile economic zone had developed in the months preceding the Caracas session,23 there can be little doubt that congressional consideration of 200-mile legislation—which continued throughout 1975—had influenced the U.S. position on the acceptability of such a zone. 17 See A/CONF.62/C.2./L.47, Art. 19(A), reproduced in 5 THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA: DOCUMENTS 166-67 (Renate Platzöder, ed.,1984) [hereinafter UNCLOS DOCUMENTS). 18 Stevenson & Oxman, Caracas, supra note 15, at 17; see also A/CONF. 62/C.2./L.47, supra note 18, Art. 19(C)-(E). 19 See 2 NANDAN & ROSENNE, UNCLOS COMMENTARY 653-54; see also TSUNEU AKAHA, JAPAN & GLOBAL OCEAN POLITICS 89-93 (1985). For discussion of Japan’s failure at the Law of the Sea Conference see Kazuomi Ouchi, A Perspective on Japan’s Struggle for its Traditional Rights on the Oceans, 5 OCEAN DEV. AND INT’L L. J.107, 11630 (1978). 20 This disagreement reflected the “inside-outside” problem that would not be resolved by the 1982 Law of the Sea Convention and would be further addressed, though not definitively resolved, as to regulation of both straddling stocks and highly migratory species in the 1995 U.N. Fish Stocks Agreement. The treatment of highly migratory species by the Agreement is discussed in detail in Section V, infra. 21 See, e.g., 120 CONG. REC. 229-236 (1974) (statement of Sen. Magnuson). 22 Fishery Jurisdiction: Hearings on Extending Jurisdiction of the United States Beyond the Present 12-Mile Fishery Zone Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 93rd Cong. 2d Sess. (1974) [hereinafter 1974 House Hearings]at 779 (statement of August Felando); see also id. at 720 (statement of John J. Royal, Executive SecretaryTreasurer of the Fisherman & Allied Workers’ Union, ILWU) (“. . . nation after nation shot down the U.S. species approach and resolution, pointed out repeatedly that Congress, contrary to what Ambassador John R. Stevenson was recommending, was moving in the direction of extended jurisdiction unilaterally.”). 23 Interview with John Norton Moore, Nov. 11, 1994 at 22 (transcript in author’s files).

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Finally, in April 1976, despite the objections and misgivings of the Executive Branch, the United States unilaterally declared its own 200-mile economic zone through Congress’s enactment of the Fishery Conservation and Management Act. As discussed in greater detail in section II.B., below, the FCMA included several provisions intended to minimize the adverse impacts of the legislation on U.S. distant water interests, and the tuna industry in particular. These “tuna” provisions would dictate and backstop U.S. tuna policy around the world for the next decade and a half. While Congress was debating the 200-mile legislation, an article specifically addressing highly migratory species was being developed at the Law of the Sea negotiations, amid much controversy over the issue.24 However, the article, which would eventually become Article 64 of the Law of the Sea Convention, would fail to definitively resolve the differences between the United States and coastal states wishing to exercise jurisdiction over such species.

B. The Development of Article 64 On the eve of the Geneva Session of the Law of the Sea Conference, which was to convene in March 1975, Ecuador seized seven U.S. tunaboats resulting in fines of $1.5 million and the loss of another $1.5 million in confiscated catches. The U.S. tuna industry regarded this action as dramatic confirmation of the negative impact of congressional consideration of 200-mile legislation.25 The Ecuadorian seizures also underscored the importance to the U.S. tuna industry of the regional approach to highly migratory species management that the United States had proposed at Caracas and would again advocate at the Geneva Session.26 Although State Department negotiators testified that there was considerable support at the Law of the Sea Conference for the regional approach to highly migratory species advocated by the United States and that agreement on 24

For a summary of the impact of national bureaucratic politics on negotiations at the Law of the Sea conference, see EDWARD MILES, GLOBAL OCEAN POLITICS: THE DECISION PROCESS AT THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA 19731982 at 263-68 (1998). More generally, see Miles’ ten-point thematic analysis of the conference process at 241-74. 25 See Douglas Watson, “Tuna War” Escalates in Ecuador, WASHINGTON POST, March 10, 1975, reprinted in Fisheries Jurisdiction: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 94th Cong., 1st Sess. (1975) [hereinafter 1975 House MM&F Committee Hearings] at 2-4; see also Fish and Wildlife Briefings: Hearings on State Department Briefing before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 94th Cong. 1st Sess. (1975) [hereinafter 1975 House MM&F State Department Briefing) (statement of Thomas A. Clingan, Jr., Deputy Assistant Secretary of State for Oceans and Fisheries) at 159-162; see also Leon to Sullivan, Mar. 20, 1975, reprinted in 1975 House MM&F Committee Hearings at 602-03. 26 See, e.g., 1975 House MM&F Committee Hearings at 443 (testimony of August Felando).

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such an approach was near,27 these views proved unduly sanguine. The Geneva Session resulted in the production of an “Informal Single Negotiating Text” (“ISNT”) that, as it happened, “served as the basis for future negotiations” and “in essence determined the outlines of the Law of the Sea [Convention].”28 The article concerning highly migratory species included in the ISNT would, without substantive change, become Article 64 of the Convention. Provisions for highly migratory species were the subject of much controversy in Geneva.29 While several negotiating groups produced texts on the economic zone during the Geneva Session,30 the Evensen Group of “Juridical Experts”31 was the most important in terms of its influence on the formulation of provisions on the economic zone and, therefore, fisheries. Although the Evensen Group’s final text did not contain an article on highly migratory species because agreement on one could not be reached within the Group, such an article from an earlier Evensen Group draft was closely followed by Reynaldo Galindo Pohl of El Salvador,32 the committee chairman charged with developing economic zone and fisheries articles for the ISNT.33 The Evensen Group’s draft article on highly migratory species (1) recognized coastal state jurisdiction to regulate fishing for such species within the exclusive economic zone, (2) called for coastal and fishing states to cooperate to insure their conservation and optimum utilization, and (3) directed the establishment of international organizations to facilitate such cooperation where they

27 1975 House MM&F Committee Hearings, supra note 25 at 111, 120 (statement of John Norton Moore and responses to questions posed to Mr. Moore by Mrs. Sullivan). 28 HOLLICK, supra note 4, at 308, 379. 29 John R. Stevenson & Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session, 69 AM. J. INT’L L. 763, 780 (1975) [hereinafter Stevenson & Oxman, Geneva]. For an account of the history of the negotiation of Article 64, including quantitative analysis of the trend toward a “consensus” position, see Robert L. Friedheim, Fishing Negotiations at the Third United Nations Conference on the Law of the Sea, 22 OCEAN DEV. INT’L L. 209, 245-51 (1991). During the international negotiating process, according to Friedheim’s analysis, states with distant fisheries achieved what he calls merely “cosmetic” concessions in coastal states’ control over highly migratory species, see ROBERT L. FRIEDHEIM, NEGOTIATING THE NEW OCEAN REGIME, (1993) at 166-73. Friedheim analogizes the negotiating process to that by which the much larger group of landlocked states achieved concessions on access to economic zones. Friedheim, id. at 173, ranks bargaining positions and outcomes on a 10-point scale on which “1” represents the position most favored by the distant fisheries and “10” represents that favored by the coastal states. On that scale, he places Article 64 at “7.” 30 See HOLLICK, supra note 4, at 306; see also Stevenson & Oxman, Geneva, supra note 29 at 770. 31 So named after its chairman, Jens Evensen of Norway, this group of some 40 delegation heads had a predominantly coastal state orientation. See HOLLICK, supra note 4, at 304. 32 Id. at 285, 308. 33 See Nordquist & Park, U.S. UNCLOS DELEGATION REPORTS supra note 8 at 10304; see also Stevenson & Oxman, Geneva, supra note 29, at 779, 779 n.32.

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did not already exist.34 The draft article attempted to finesse the issue of whether the coastal state or an international organization would develop the content of the regulations which the former would implement in its economic zone by differentiating between “standards” and “recommendations” to be developed by the international organization. Regulation by the coastal state had to be “in conformity with” the former, but the coastal state only had to “take into account” the latter.35 The organization had to establish standards to insure conservation and optimum utilization of highly migratory species both within and beyond the economic zone, but the organization could decide for itself whether to formulate binding standards or non-binding recommendations with regard to, among other things, allowable catch, equitable allocation, issuance of permits, a uniform system of fees and penalties.36 Coastal states would enjoy special protection because the adoption of standards and recommendations by the organization would be contingent on the affirmative vote of “all coastal States of the region present and voting.”37 Failure of the draft article to specify whether the coastal state or an international organization would develop the content of the regulations which the coastal state would implement in its economic zone meant, in effect, that such authority resided with the coastal state, subject only to the requirement that such regulations be “in conformity with” standards and “take into account” recommendations formulated by the international organization. In formulating the highly migratory species article for the ISNT, Galindo Pohl closely followed the paragraphs of the Evensen Group draft article in recognizing coastal state jurisdiction over highly migratory species and the need for cooperation to insure their conservation and optimum utilization. However, unlike the Evensen Group text, Galindo Pohl’s highly migratory species article for the ISNT did not address development of “standards” and “recommendations” by international organizations and the duties of coastal states with respect to their implementation.38 As a result, how coastal states and fishing states were to “cooperate,” as the ISNT article directed, “with a view to insuring conservation and providing the objective of optimum utilization of [highly migratory] species throughout the region, both within and beyond the exclusive economic zone,” was left unresolved.39 This led the U.S. delegation to report (with undue optimism, it would turn out) after the close of the Geneva Session that: “It seems that an organization which would establish mandatory conservation measures would be broadly acceptable, but there is still disagreement as to whether other

34 Group of Juridical Experts, The Economic Zone, 16 April 1975, Art. 12(1), (2), reproduced in 11 UNCLOS DOCUMENTS, supra note 17, at 487. 35 Id., Art. 12(6). 36 Id., Art. 12(3). 37 Id., Art. 12(3), (5). 38 See A/Conf. 62/WP.A/Part II, Art. 53, reproduced in 1 UNCLOS Documents, supra note 17 at 20, 29; see also 2 NANDAN & ROSENNE, UNCLOS COMMENTARY, supra note 8, at 655. 39 A/Conf. 62/WP.A/Part II, Art. 53(2), reproduced in 1 UNCLOS DOCUMENTS, supra note 17, at 20, 29.

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measures adopted by an organization including allocation would be mandatory.”40 In subsequent sessions of the Law of the Sea Conference, proposals were tabled that would have given international and regional organizations a greater role in tuna conservation and management, but no changes were made to specify the relative responsibilities of coastal states and international organizations for the development of regulations to be implemented in the economic zone, as major disagreement on that issue persisted.41 Only minor technical and drafting changes were made to Article 64; no substantive changes were made.42 Article 64 failed to resolve a number of key issues surrounding the conservation and management of highly migratory species. While most countries and commentators concluded that Article 64 recognized coastal state jurisdiction over highly migratory species in the exclusive economic zone, serious disagreement would persist over how the “cooperation” it mandated between coastal and fishing states was to be made operational. Uncertainties on this score would especially pervade disputes in the South Pacific for years to come.

III. The Fishery Conservation and Management Act of 1976 As we have noted, simultaneously with the negotiation of fishery articles for a new Law of the Sea Convention, the U.S. Congress considered and, in early 1976, passed, legislation extending U.S. fisheries jurisdiction to 200 miles. The FCMA was passed despite strong opposition from the Executive Branch, which feared U.S. unilateral action would undermine its efforts at the Law of the Sea negotiations, prompt unilateral claims by other countries, and harm U.S. defense and distant water fishing interests. Notwithstanding this opposition throughout congressional consideration of the legislation, President Ford, bending to the imperatives of election year politics, and contrary to the recommendations of the Departments of State, Defense, and Justice, refused to veto the FCMA and signed it into law in April 1976. The new legislation contained several provisions designed to address the concerns of U.S. distant water tuna interests that would form the legislative backbone for U.S. tuna policy and diplomacy for the next decade and a half.

40

Nordquist & Park, U.S. UNCLOS DELEGATION REPORTS (1983), supra note 8, at

88. 41

Id. at 125-28, 151-52, 175; see also 2 NANDAN & ROSENNE, UNCLOS COMMENsupra note 8, at 656. 42 2 NANDAN AND ROSENNE, UNCLOS COMMENTARY, supra note 8, at 657.

TARY,

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A. 200-Mile Legislation and Presidential Politics The progress of 200-mile legislation from 1974 to 1976 was principally orchestrated by Warren Magnuson, the powerful chairman of the Senate Commerce Committee. While it was a non-partisan measure, drawing supporters from both Republican and Democratic parties, Magnuson’s legislation engendered strong opposition both within Congress and from the Executive Branch. In the fall of 1974, the Ford Administration succeeded in preventing the 200-mile legislation from reaching the floor of the House of Representatives for a vote.43 Despite the Administration’s efforts, it could not keep the Senate from debating and passing Magnuson’s bill in December 1974.44 Nonetheless, with no vote in the House, the Administration avoided having to decide whether to sign or veto 200-mile legislation in the 93rd Congress. In the 94th Congress, however, the Ford Administration was unable to escape having to decide whether to sign 200-mile legislation. In early 1975, 200mile legislation was quickly re-introduced in both houses of Congress. For most of the spring, Congress suspended consideration of the legislation while the Geneva session of the Law of the Sea negotiations was ongoing.45 Following the Geneva session, Congress resumed active consideration of 200-mile legislation, with Magnuson leaving no mistake about his intentions, declaring: “Now that another session of the Law of the Sea Conference has ended without resolving the fishery conservation question, we here in Congress must do the job.”46 Two hundred-mile legislation quickly picked up momentum in Congress. In the face of this rising congressional pressure for 200-mile legislation, the Ford Administration had to develop a response. On Secretary of State Henry Kissinger’s recommendation, the President chose a middle course. He continued to oppose unilateral legislation, but he also indicated a willingness to consider support for 200-mile legislation if bilateral and multilateral negotiations to reduce foreign catches off U.S. coasts did not show progress.47 In implementing the President’s decision to oppose 200-mile legislation,48 the State Department

43

Janka to Fridersdorf, c. Sept. 1974, Leon and Leppert Files, Box 10, Fisheries Leg.-200 Mile Limit (2), Ford Papers; see also Recommended Telephone Call, c. Sept. 1974, WHCF, Box 65, PR 7-2 9/10/74-10/6/74. 44 120 CONG. REC. 39105 (1974). 45 See 1975 House MM&F Committee Hearings, supra note 25 at 667 (statement of Rep. Leggett); Emergency Marine Fisheries Protection Act of 1975-Part No. 1: Hearing Before the Comm. on Commerce on S. 961, 94th Cong., 1st Sess. (1975) [hereinafter 1975 Commerce Comm. Hearing on S. 961 Part 1] at 1 (statement of Sen. Magnuson). 46 1975 Commerce Comm. Hearings on S. 961 Part 1 at 1 (statement of Sen. Magnuson). 47 See Memorandum for the President from Henry A. Kissinger re 200-Mile Interim Fisheries Legislation, Aug. 6, 1975, Charles Leppert Files, Box 10, Fisheries (2), Ford Papers. 48 See “Detailed Domestic Plan of Action to Oppose the 200-Mile Bill” in 200-Mile Fishing Legislation Opposition Plan Book, Kendall Files, Box 5, 200-Mile Fisheries Legislation, File 2, Ford Papers.

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worked closely with distant water fishermen and a number of groups that opposed 200-mile legislation on internationalist grounds.49 Consideration of 200-mile legislation in the House of Representatives confirmed that deep divisions over it did not have a partisan valence. In the House, although 200-mile legislation had been favorably reported by the Merchant Marine and Fisheries Committee by an overwhelming margin,50 the House International Relations Committee issued a negative report on the bill on the ground that its passage would damage U.S. objectives at the Law of the Sea negotiations, encourage claims of extended jurisdiction by other countries, and violate U.S. treaty obligations.51 Nonetheless, in early October 1975, the House passed 200-mile legislation.52 Opposition to the legislation was mounted by members of both parties. Some of those lawmakers counted distant water tuna fishermen (as well as the canneries they supplied) and distant water shrimp fishermen among their constituents. Others opposed unilateral action on internationalist grounds. Yet others worried about the foreign policy and defense implications of the legislation.53 In the Senate, although the Commerce Committee, chaired by Magnuson, had voted overwhelmingly to favorably report his 200-mile bill,54 the State Department’s efforts in opposing the legislation paid off when in November 1975 the Foreign Relations Committee voted, albeit by a very narrow margin, to issue a negative report on 200-mile legislation, reiterating the now-familiar argument that unilateral action would be inconsistent with existing U.S. treaty obligations and would undermine U.S. diplomacy at the Law of the Sea negotiations.55 The State Department’s efforts, however, suffered a serious setback, when in December 1975 the Armed Services Committee voted by a narrow margin to favorably report 200-mile legislation.56 During Congress’ winter recess, the State Department undertook what would prove to be a quixotic effort to encourage the President to muster all the

49

See id. at 2. See House, Merchant Marine and Fisheries, Marine Fisheries Conservation Act of 1975, H.R. REP. NO. 445, 94th Cong., 1st Sess. (1975), reprinted in A LEGISLATIVE HISTORY OF THE FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976, at 1051 (1976) [hereinafter FCMA LEGISLATIVE HISTORY]. 51 House Comm. on International Relations, Special Oversight Report on H.R. 200, the Marine Fisheries Conservation Act of 1975, H.R. Rep. No. 542, 94th Cong., 1st Sess. (1975), reprinted in FCMA Legislative History, supra note 50, at 1025, 1035-41. 52 See FCMA LEGISLATIVE HISTORY, supra note 50, at 1011-13. 53 Id. at 823-1014 (House Debate in Passage of H.R. 200). 54 Senate Comm. on Commerce, Magnuson Fisheries Conservation and Management Act, S. Rep. No. 416, 94th Cong., 1st Sess. (1975) reprinted in FCMA LEGISLATIVE HISTORY at 653. 55 See Senate Comm. on Foreign Relations, Fisheries Management and Conservation Act, S. Rep. No. 459, 94th Cong., 1st Sess. (1975), FCMA LEGISLATIVE HISTORY at 583. 56 Senate Comm. on Armed Services, Fisheries Management and Conservation Act, S. Rep. No. 515, 94th Cong., 1st Sess. (1975), reprinted in FCMA LEGISLATIVE HISTORY at 569. 50

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resources of the Executive Branch against 200-mile legislation.57 Instead, the fate of 200-mile legislation would turn on the political imperatives presented by the March 1976 New Hampshire presidential primary—the first primary in the nation and in the New England region where fishing interests were strong politically. In a late January interview with newspaper editors from New Hampshire—a state with coastal fishermen—Ford pledged that he would not veto a 200-mile bill, but expressed his hope that any such legislation would not become effective until after 1976 so that the United States could press ahead at the Law of the Sea negotiations.58 In late January 1976, following a week of debate and adoption of several significant amendments, the Senate passed 200-mile legislation by an overwhelming margin.59 As had been the case in the House, 200-mile legislation was opposed in the Senate by members of both parties who, variously, were devoted to international law and institutions, were concerned about the foreign policy and defense implications of the legislation, or represented substantial distant water interests—in particular, California Senators Alan Cranston and John Tunney, whose state was home to the U.S. distant water tuna fleet. The bill as passed by the Senate contained a delayed effective date as Ford had requested.60 The recommendations of the executive departments and agencies concerning whether to sign 200-mile legislation revealed a deeply divided administration. Even though Ford had earlier gone on record that he would not veto 200mile legislation with an acceptable delayed effective date, the President was confronted with a dramatic split in his Administration over the appropriate response to passage of 200-mile legislation. Most departments and agencies, including the Departments of State, Justice, and Defense, recommended that he veto it.61 However, with the “political realities seem[ing] obvious,” as one White House aide put it, Ford signed the legislation into law on April 13, 1976.62

B. The Special Provisions for Tuna The 200-mile legislation passed by Congress contained several provisions designed to address the concerns of U.S. distant water tuna interests. The most important of these was the “tuna exclusion” provision. It excluded highly migra57

See, e.g., Memorandum for the President from Robert S. Ingersoll, Acting Secretary of State, re 200-Mile Fisheries Legislation, c. Dec. 19, 1975, John O. Marsh Files, Box 17, Fish Jur. General 6/75-4/76 (2), Ford Papers. 58 See Interview of the President by New Hampshire Newspaper Editors, Jan. 22, 1976, at 17, Ron Nessen Papers, Box 52, Jan. 22, 1976, NHEds., Ford Papers. 59 See FCMA LEGISLATIVE HISTORY at 270. 60 See id. at 254-255 (statement of Sen. Thurmond). 61 See Memorandum from Cannon to the President, re H.R. 200-Fishery Conservation and Management Act of 1976, c. Apr. 13, 1976, at 3, FO3-1 Legislation Case Files, Box 42, H.R. 200 (1), Ford Papers. 62 Action Memorandum re H.R. 200-Fishery Conservation and Management Act of 1976, Notation by Robert Hartmann, Apr. 8, 1976, White House Records Office, Legislative Case Files, Box 42, 4/13/76, H.R. 200 (2), Ford Papers.

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tory species, which Congress, in response to the demands of sport fishermen who wanted billfish to be subject to U.S. management authority, defined to include only tuna, from U.S. management jurisdiction.63 The “tuna exclusion” provision was buttressed by provisions that required the imposition of embargoes on fish products from countries that seized U.S. vessels based on a claim of jurisdiction not recognized by the United States64 and expanded the losses reimbursable under the FPA.65 These three provisions would form the legislative backbone for the tuna policy and diplomacy of the United States until the FCMA was amended in 1990 to bring tuna under U.S. management authority. Upon signing H.R. 200 into law, Ford issued a statement registering his concerns about the legislation and expressing his Administration’s “commitment to protect the freedom of navigation and the welfare of our distant water fisheries.”66 In issuing the signing statement, the Administration endeavored to minimize the negative impacts of the U.S. unilateral action. In truth, however, the difficulties in bilateral relations surrounding the issue of access for U.S. distant water fishermen to waters within 200 miles of other nations could not be averted. In recommending that the President veto H.R. 200, the State Department quite presciently predicted that the provisions of the FCMA designed to protect the interests of U.S. distant water fishermen, including the tuna exclusion, trade embargo, and compensation provisions, would strain relations with those nations off whose coasts U.S. distant water vessels principally fished.67 The State Department foresaw that for those countries, “the exclusion of tuna from our jurisdiction and our probable refusal to recognize their jurisdiction over tuna within 200 miles will be offensive. It will also be patently hypocritical, since we have nearly no tuna resources in our zone.”68 Over the next fifteen years of fishery relations, the countries of Latin America and the central and western Pacific continually took offense at what they viewed as the hypocrisy of the United States in denying their claims to jurisdiction over tuna within their 200-mile zones.

IV. Tuna Policy and Diplomacy in the South Pacific In the ten years following enactment of the FCMA, the focus of U.S. tuna policy shifted from the eastern tropical Pacific Ocean to the South Pacific as U.S. tuna vessels would seek more favorable fishing conditions in the latter area. Decreas63

FCMA §§ 3(15), 103 [1976], reprinted in FCMA LEGISLATIVE HISTORY at 6-7. FCMA § 205 [1976], reprinted in FCMA LEGISLATIVE HISTORY at 16-17. 65 FCMA § 403 [1976], reprinted in FCMA LEGISLATIVE HISTORY at 32-33. 66 Statement by the President upon Signing H.R. 200 into Law, 12 WEEKLY COMP. PRES. DOC. 644 (Apr. 13, 1976); see also id. reprinted in FCMA LEGISLATIVE HISTORY at 34-35. 67 McCloskey to Lynn, c. early April 1976, at 5, White House Records Office, Legislative Case Files, Box 42, 4/13/76, H.R. 200 (2), Ford Papers. 68 Id. 64

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ing fishing opportunities, as Latin American countries sought to increase their domestic tuna production, conspired with increasingly stringent U. S. requirements for dolphin protection to make the eastern tropical Pacific inhospitable fishing grounds for U.S. vessels. At the same time, the small island states of the western and central Pacific elaborated cooperative arrangements for management of highly migratory species, leading to establishment of the Forum Fisheries Agency (“FFA”) in 1979. The FFA failed to comport with the U.S. view of the requirements of Article 64 of the Law of the Sea Convention. Hence the U.S. juridical position on highly migratory species would play a critical role in not only U.S. fisheries policy for the South Pacific, but in the overall U.S. foreign policy for the South Pacific, for more than a decade to come. The conclusion of the Tuna Treaty between the Pacific Island Countries and the United States in 1987 resolved or at least salved the tensions in relations generated by disputes over tuna by ensuring access to the island countries’ EEZs for U.S. vessels in return for a fee.

A. The Establishment of the Forum Fisheries Agency and the Meaning of Article 64 The island nations of the western and central Pacific have played a leading role in the development of international law regarding tuna over the last quarter of the 20th century. Given the size of their EEZs, the value of the rich tuna resources that swim in them and the dependence of the Pacific Island countries’ economies on fishery resources, this should not be surprising. As a first step in addressing tuna issues on a regional basis, the Pacific Island countries initiated discussions in 1976 that would eventually lead to the creation of the South Pacific Forum Fisheries Agency (“FFA”). The circumstances of the creation of the FFA were strongly influenced by the U.S. juridical position on tuna. They also reflected the different interpretations of the requirements of Article 64 held by a number of South Pacific island countries and distant water fishing nations, especially the United States, as well as the aspirations of the island countries to gain control over valuable fishery resources and further mark their independence from the metropolitan powers. From the time a regional fisheries organization for the South Pacific was first proposed in 1976, it took three years for a convention establishing the FFA to be concluded. The delay was attributable largely to disagreement over whether a South Pacific regional fisheries organization should include only the countries of the region, or also, more broadly, involve the metropolitan powers with island dependencies and distant water fishing nations.69 69

The account of the establishment of the FFA which follows draws upon the work of a number of authors who have chronicled the events, including: GEORGE KENT, THE POLITICS OF PACIFIC ISLAND FISHERIES 166-72 (1980); John Van Dyke & Susan Heftel, Tuna Management in the Pacific: An Analysis of the South Pacific Forum Fisheries Agency, 3 U. HAW. L. REV. 1, 13-19 (1981); Florian Gubon, History and Role of the Forum Fisheries Agency, in TUNA ISSUES AND PERSPECTIVES IN THE PACIFIC ISLANDS RE-

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The U.S. policy on tuna cast a shadow over these efforts and over relations between the United States and the peoples of the region more generally. For example, after visiting what was at the time the U.S. Trust Territory of the Pacific Islands (now the Federated States of Micronesia and the Marshall Islands), one U.S. official reported: I note with deep concern a deteriorating attitude toward the United States, caused principally, in my view, by our divergent positions concerning the management of tuna fisheries in the context of the Law of the Sea. . . . There is no international regional tuna organization in the Central Pacific, and they feel it necessary to create a 200-mile fisheries zone to include the management and conservation of the tuna species. The Micronesians are of the opinion that the United States has effectively abandoned its tuna position, and yet opposes their own declaration of a 200-mile zone which includes the protection of the tuna resources in their waters.70

In 1977, the Pacific Island countries declared in the “Port Moresby Declaration” their intention to establish a South Pacific Regional Fisheries Agency open to all [South Pacific] Forum countries and all countries in the South Pacific with coastal state interests in the region who support the sovereign rights of the coastal state to conserve and manage living resources, including highly migratory species, in its 200 mile zone.71

But U.S. tuna policy colored discussion of the new organization’s mandate and membership. The Pacific Island countries explicitly characterized the U.S. juridical position, so recently reiterated and reinforced in the FCMA, as “directly opposed to [the policy] of the countries of the region and to the interests of the Pacific in particular.”72 A follow-up meeting to implement the declaration foundered on the related issues of the organization’s mandate and membership. Ac245-56 (David J. Doulman, ed., 1987); Neroni Slade, Forum Fisheries Agency and Next Decade: The Legal Aspects, in THE FORUM FISHERIES AGENCY: ACHIEVEMENTS, CHALLENGES AND PROSPECTS 296-99 (Richard Herr ed., 1990). 70 Memorandum for Ambassador Elliot L. Richardson, Special Representative of the President for Law of the Sea, from Howard W. Pollock, NOAA Deputy Administrator, re Political Situation in the Trust Territory of the Pacific Islands, and the Law of the Sea Implications, Apr. 12, 1977, Carter Papers, WHCF-Int’l Organizations, IT-9, IT 86-3, 1/20/77-1/20/81. Mr. Pollock further reported that Micronesians felt “it was an intolerable situation for the United States to wish to represent the Marshalls and other areas of Micronesia internationally in fisheries matters, when their views and those of the United States concerning tuna were diametrically opposed.” Id. at 4. 71 8th South Pacific Forum, Declaration on the Law of the Sea and a Regional Fisheries Agency Art. 7 (Port Moresby, Papua New Guinea, Aug. 19-22, 1977), quoted in KENT supra note 69, at 167; see also Van Dyke & Heftel supra note 69, at 13; Slade supra note 69, at 297. 72 Report of the Eighth Meeting of the South Pacific Forum (Port Moresby, Papua New Guinea, 1977) at 31, quoted in Gubon supra note 69, at 247. GION

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cording to one observer, “as the meeting progressed,” the United States—which, along with Chile, France, and the United Kingdom, participated as a voting member in representing island dependencies in the region—“spoke in support of its own interests as a DWFN and a major industrial fish-processing and fishmarketing nation rather than as a representative of the non-sovereign territories it administered.”73 A further meeting in June 1978 resulted in agreement on a draft South Pacific Regional Fisheries Organization Convention (“Draft Convention”). The Draft Convention provided for a broad-based organization with membership open to SPF members, metropolitan powers with territories in the region, and DWFNs whose applications garnered the support of two-thirds of the Convention’s parties. The document attempted to finesse the disagreement between the United States and the island countries on the juridical status of tuna by merely providing that those countries claiming highly migratory species within their 200-mile zones notify the director of the organization of their claim. The Draft Convention also attempted to finesse the membership issue by providing for the organization to reach decisions by consensus without taking a formal vote. The organization would have functioned as a weak regional coordinating body with only advisory powers, and no powers of enforcement, surveillance, or regulation. The political decision-makers of the Pacific Island countries rejected the Draft Convention at their 1978 meeting. At that meeting, U.S. representatives advocated an Article 64 type organization, and expressed the willingness of the United States to recognize jurisdiction over tuna when exercised by such a regional organization. However, consistent with the U.S. juridical position, the U.S. representatives refused to recognize coastal state jurisdiction over tuna, and insisted that a regional organization could not derive authority over tuna from delegations of power by coastal states because they could not properly claim such jurisdiction to begin with. The U.S. position generated considerable acrimony, prompting Sir Peter Kenilorea, Prime Minister of the Solomon Islands, to famously remark: We do not interfere in the coal mines of America—why should America be able to interfere in the fisheries of the independent Pacific Forum countries? . . . We will not sign that convention until and unless there is a provision to safeguard the immediate concerns of the South Pacific nations. We should have the complete say over our fisheries . . . .74

73

Gubon supra note 69, at 247. NEW PACIFIC MAGAZINE (March/April 1979) at 9, quoted in Van Dyke & Heftel supra note 69, at 15; see also KENT supra note 69, at 169. Other regional leaders pointed to the apparent inconsistency of the United States in defining highly migratory species in the FCMA to include only tuna. For example, the Foreign Minister of Papua New Guinea expressed puzzlement at the U.S. argument that highly migratory species could not be managed effectively by individual countries because of their highly migratory nature, “particularly when the United States claims management rights over marlin, and other highly migratory species, in order to safeguard the interests of its sports fishermen.” PA74

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According to one commentator, “[t]he core disagreement at Niue was over whether there should be an Article 64 type organization, as proposed in the [Draft Convention], which would include the United States and other outside fishing nations in the organization, or whether there should be a more limited organization based on establishing a common front by the Forum nations.”75 With the Pacific Island country leaders unable to agree on this question,76 they rejected the Draft Convention and directed officials to redraft it to be consistent with the Port Moresby Declaration of 1977 by restricting membership to Forum nations. In 1979, Forum leaders adopted a convention establishing the FFA—a nonArticle 64 body.77 In specifying the functions of the FFA, the Convention established “a rather weak service agency rather than . . . anything approaching a management agency,”78 authorizing the FFA to do little more than act as an information clearing house, provide technical advice to states party, and promote regional coordination and cooperation in fisheries.79 The Convention limited membership in the FFA to Forum members and “other states or territories in the region” if approved by the SPF.80 The Convention declared: The Parties to this Convention recognize that the coastal state has sovereign rights, for the purpose of exploring and exploiting, conserving and managing the living marine resources, including highly migratory species, within its exclusive economic zone or fishing zone which may extend 200 miles from the baseline from which the breadth of its territorial sea is measured.81

That the Convention did not intend to establish an Article 64 body was made clear by the accompanying provision, which stated: Without prejudice to [the sovereign rights of coastal states over tuna within their EEZs], the Parties recognize that effective co-operation for the conservation and optimum utilization of the highly migratory species of the region will require the establishment of additional international machinery to provide for

CIFIC ISLANDS MONTHLY, July 1979, at 83, quoted in Van Dyke & Heftel supra note 69, at 16. 75 KENT supra note 69, at 196. 76 The smaller island nations of Western Samoa, Niue, and the Cook Islands wanted to admit DWFNs into the organization because they desired to license out their rights to the resources, while Fiji, Papua New Guinea, and the Solomon Islands were joined by Nauru, Tonga, and Kiribati in seeking to exclude metropolitan countries and DWFNs from the organization in order to prevent them from dominating it and compromising the island countries’ control over their newly acquired marine resources. See id. at 169-70. 77 South Pacific Forum Fisheries Agency (“SPFFA”) Convention (Honiara, Solomon Islands, 1979). 78 KENT supra note 69, at 170. 79 See SPFFA Convention, arts. V, VII. 80 SPFFA Convention, Art. II. 81 SPFFA Convention, Art. III(1).

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Whether sporadic efforts of the South Pacific island countries over the next decade and a half to establish an Article 64 body would satisfy Article 64’s requirement for cooperation between and among coastal states and fishing states would be the subject of much debate.83

B. The Tuna Treaty In 1985, the United States and the Pacific Island countries participating in the FFA embarked on negotiations that would ultimately lead to the conclusion in 1987 of a treaty providing for access for U.S. purse seine vessels to the EEZs of the island nations to fish for tuna.84 The negotiation of the Tuna Treaty became a focus of high-level U.S. foreign policymakers when one of the Pacific Island countries reached an agreement with the U.S.S.R. to provide access to its EEZ for Soviet fishing vessels in return for a fee.85 Relations between the United States and the Pacific Island countries had long been friendly, as the United States enjoyed a reservoir of goodwill based on its role in liberating many of the islands in World War II, but relations had suffered throughout the early 1980s as a result of U.S. embargoes imposed in response to seizures of U.S. tuna vessels for fishing within Pacific Island country EEZs without first securing permission.86 The resulting Tuna Treaty did not even gesture toward the establishment of an Article 64 type body. Rather, it formalized a modus vivendi for the U.S. purse seine fleet and the island nations. While the Tuna Treaty explicitly denied recognition of Pacific Island state sovereignty over tuna in the EEZ,87 that it repre82

SPFFA Convention, Art. III(2). Compare Gubon supra note 69, at 252-53 and Slade supra note 69, at 298-99 (arguing FFA and efforts to cooperate to establish an Article 64 body comply with UNCLOS requirements) with Van Dyke & Heftel supra note 69 at 48-54 (arguing FFA does not meet Article 64 requirements). 84 See Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (done 2 April 1987; entered into force 15 June 1988), TIAS 11100 [hereinafter Tuna Treaty]. For an extended discussion of the tuna treaty and the emergence of a regional ocean regime in the South Pacific see Biliana Cicin-Sain & Robert W. Knecht, The Emergence of a Regional Ocean Regime in the South Pacific, 16 ECOLOGY L. Q. 171 (1989). For a survey of the main issues in the negotiations and their resolution see John M. Van Dyke and Carolyn Nichol, U.S. Tuna Policy: A Reluctant Acceptance of the International Norm, in TUNA ISSUES AND PERSPECTIVES OF THE PACIFIC ISLANDS REGION 105, 117-22 (David J. Doulman, ed., 1987). 85 Van Dyke & Nichol supra note 84, at 117-18. 86 Id. at 112-15. 87 See Tuna Treaty, Annex 7, ¶ 3, (“Nothing in this Annex and its Schedules, nor activities taking place thereunder, shall constitute recognition of the claims or the positions of any of the parties concerning the legal status and extent of waters and zones claimed by any party.”). 83

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sented de facto recognition of such jurisdiction would be difficult to deny. The Treaty provided for approximately $60 million in payments and financial aid over five years, with about $2 million to be paid annually to the island states for license fees, plus $10 million to be paid annually in direct U.S. foreign aid.88 Although the Department of State would insist in the future that the Tuna Treaty did not contradict the long-standing U.S. juridical position, its de facto recognition of coastal state sovereignty over tuna would become a rallying point for those American interests that supported repealing the tuna exclusion provisions of the FCMA and bringing tuna under U.S. management authority.

V. The FCMA Tuna Inclusion Amendment Efforts to subject tuna fishing within the U.S. EEZ to regulation had begun almost as soon as the FCMA was enacted. Some of these efforts resulted in attempts by regional fishery management councils to regulate foreign fishing for tuna through fishery management plans for billfish on the grounds that tuna fishing impacted billfish through indirect catches. However, fishery management plans for billfish were regularly rejected by the Department of Commerce as inconsistent with the Magnuson Act’s tuna exclusion provisions and the U.S. juridical position. Other efforts took the form of moves to formally amend the FCMA to repeal the Act’s tuna exclusion provisions on the ground, among others, that they prevented the councils from managing billfish effectively. The 1987 Tuna Treaty gave additional impetus to calls for repeal of the tuna exclusion provisions, with many contending the treaty had effected de facto recognition of coastal state authority over tuna within EEZs. At the same time, throughout the 1980s, the political influence of the distant water tuna industry in the United States was waning as American-based processing operations relocated overseas. This confluence of events and circumstances enabled the fishery management councils, in league with sport fishermen, to secure passage of tuna inclusion amendments to the FCMA in 1990 that subjected tuna to U.S. management jurisdiction within the EEZ and had the effect of eliminating the juridical position from U.S. fisheries diplomacy.89

A. Early Tuna Inclusion Legislation In 1981, the Senate considered legislation to amend the FCMA to include tuna under U.S. jurisdiction. The “American Tuna Protection Act” was cosponsored by a number of eastern seaboard senators and supported by commercial and 88

Van Dyke & Nichol, supra note 84, at 121. The Fishery Conservation and Management Act established eight regional fishery management councils to manage the fisheries subject to the United States’ extended jurisdiction. Intended to reflect a then-fashionable “cooperative federalism,” the councils were created as hybrid federal-state entities consisting of federal and state fisheries officials and representatives, along with various user groups. 89

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sports fishermen on the Atlantic coast and the Gulf of Mexico.90 Proponents felt tuna inclusion was a necessary predicate for: (1) regulating the incidental catch of billfish by Japanese longline vessels fishing for tuna in the U.S. 200-mile zone;91 (2) minimizing gear conflicts between U.S. fishermen and Japanese longline vessels;92 (3) reserving bluefin tuna in the U.S. 200-mile zone to American fishermen;93 and (4) enhancing tuna longlining opportunities for U.S. vessels in the southeast and Gulf of Mexico.94 Pressure for inclusion came especially from Hawaii, where the tuna fleet was competing with large scale Japanese operators within the 200-mile zone. The State Department, the Japan Fisheries Association, and representatives of U.S. distant water tuna fishermen testified in opposition to the legislation. The State Department argued that assertion of U. S. jurisdiction over tuna was unnecessary because it had taken, and would continue to take, many steps “to try to accommodate the coastal interests of the United States with respect to tuna and billfish.”95 According to the Department, these steps included advocating a coastal state preference for ICCAT’s bluefin tuna allocation, 96 and negotiating voluntary measures with the Japanese fleet to reduce their billfish and bluefin tuna catches, as well as gear conflicts with U.S. fishermen.97 The Department further explained that it had assumed “an increased flexibility” with respect to reviewing billfish management plans developed by regional fishery management councils for consistency with the juridical position.98 The State Department also reiterated its longstanding opposition to tuna inclusion on the grounds that it would destroy the U.S. juridical position, to the detriment of the U.S. negotiating position in the eastern tropical Pacific and elsewhere, as well as undercut the Fishermen’s Protective Act and the embargo provisions of the FCMA.99 Moreover, the Department argued, the juridical position was dictated by the biology of highly migratory species, which showed that the only effective 90

See 127 CONG. REC. 19176 (July 31, 1981) (statement of Sen. Weicker introducing S. 1564, the “American Tuna Protection Act”). 91 See, e.g., Atlantic Bluefin Tuna Stocks: Hearing before the National Ocean Policy Study of the Sen. Comm. on Commerce, Science and Transportation on S. 1564, the American Tuna Act, 97th Cong., 1st Sess. (Dec. 8, 1981) [hereinafter 1981 Tuna Inclusion Hearing] at 13 (statement of Christopher Weld, Secretary and Executive Director, National Coalition for Marine Conservation). 92 Id. 93 Id. at 14-15; see also id. at 4-5 (statement of William G. Gordon, Assistant Administrator for Fisheries, NMFS, NOAA) and 28-30 (statement of Roger Anderson, Executive Director, Gulf & South Atlantic Fisheries Development Foundation). 94 See id. at 29, 42. Many of those vessels were converted shrimp vessels that had been displaced (excluded) from their traditional fishing grounds off the Atlantic coast of Latin America and in the Gulf of Mexico as a result of extended coastal state jurisdiction. See id. 95 Id. at 5 (statement of Theodore G. Kronmiller, Deputy Assistant Secretary of State for Oceans and Fisheries Affairs). 96 See id. at 5, 76. 97 Id. at 6, 7. 98 Id. at 6, 8. 99 Id. at 6-8, 76-77.

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way to conserve and manage them was through international agreements, not exclusive coastal state jurisdiction.100 In testifying against the tuna inclusion amendments, the Japan Fisheries Association asserted that Japanese fishermen were being unfairly targeted. According to the Association, the catch levels of the Japanese-directed tuna fishery and its incidental swordfish bycatch in the American 200-mile zone were greatly exaggerated and were, in fact, dwarfed by the American fleet’s catch of those species.101 The Japanese fishing interests were quite strident in expressing their opposition to tuna inclusion: The virulent campaign to place tuna under United States authority in the 200mile Fishery Conservation Zone seeks to subvert scientific principles to xenophobia and greed. Scientists around the world repeatedly have stated in no uncertain terms that no highly migratory fish—including tunas and billfish—can possibly be conserved by a single coastal nation acting alone. Only the highpowered lobbying of wealthy and influential sports fishermen succeeded in placing billfish under U.S. management authority through a last-minute amendment to the FCMA. This action, incidentally, was so contrary to scientific knowledge, that both the Caribbean and Pacific Fishery Management Councils have refused to develop fishery management plans for billfish.102

Representatives of two different organizations representing the West Coast tuna industry, the U.S. Tuna Foundation (“USTF”) and the American Tunaboat Association (“ATA”), testified in opposition to the legislation on behalf of U.S. distant-water tuna interests. The USTF representative emphasized that the greatest part of U.S. tuna production came from the Pacific Ocean (not the Atlantic) fishery, and he predicted that extension of U.S. jurisdiction to tuna would exacerbate difficulties with Mexico over tuna fishing in the eastern tropical Pacific. He also cited recently agreed International Commission for the Conservation of Atlantic Tuna (ICCAT) measures as evidence that international management of tuna was effective, arguing that the U. S. juridical position should be steadfastly maintained in order to preserve U.S. negotiating leverage to conserve tuna and to insure access to tuna for the American fishing fleet.103 Representatives of the ATA echoed the statements of the State Department and the USTF, stressing particularly the ongoing difficulties with Mexico regarding the ETP and IATTC. Consistent with its traditionally hard-line approach, the ATA called for the United States to go beyond embargoes of tuna products from Costa Rica and Mexico imposed in 1979 and 1980, respectively, under the FCMA, and to increase “pressure on the Government of Mexico . . . to

100

Id. at 9, 76. See id. at 33 (statement of Allan Macnow, Tele-Press Associates, Inc., Public Relations Counsel to the Japan Fisheries Association). 102 Id. at 33. 103 Id. at 37-40 (statement of David G. Burney, Counsel, U.S. Tuna Foundation). 101

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bring about discussions for a regional licensing agreement providing fair access for U.S. tunaboat owners to tuna fishing areas.”104 The tuna inclusion legislation did not advance, but the concerns that animated it would only become more pressing, and the interests that supported it would only become more assertive, throughout the1980s. At the same time, as we have seen, the juridical position was to be undermined while the political influence of the U.S. distant water tuna industry was diminishing.

B. The Frustration of Fishery Management Councils Throughout the 1980s, the efforts of the Atlantic coast and Gulf fishery management councils on the one hand, and the Western Pacific Fishery Management Council in Hawaii, on the other hand, to develop fishery management plans for billfish were constrained by the tuna exclusion provisions of the FCMA and the U.S. juridical position on tuna, as interpreted and applied by the Commerce and State Departments. The constraint stemmed from a 1979 NOAA General Counsel legal opinion on billfish management under the FCMA that set forth a stringent test that all fishery management measures relating to billfish, and incidentally impacting tuna fishing, had to satisfy.105 The NOAA legal opinion ruled that “management measures which affect foreign longline fishing for tuna in the FCZ [Fishery Conservation Zone]” would be permissible only if they “(1) provide a reasonable opportunity for foreign longline vessels to fish for tuna in the FCZ and (2) impose the least burden on such vessels that will achieve conservation and management of the billfish covered by the plan.”106 Through implementation of this test, according to the legal opinion, “regulation of the foreign longline take of billfish [could] be carried out so that it does not constitute the exercise of exclusive jurisdiction over tuna fishing,” as proscribed by the FCMA.107 From 1980 to 1986 the Atlantic coast fishery management councils and the Gulf Council worked to develop a fishery management plan for Atlantic billfish. During that time, several versions of the Atlantic billfish fishery management plan were disapproved by NOAA because they were found not to provide Japanese vessels the requisite “reasonable opportunity” to fish for tuna in the U.S. FCZ.108 An Atlantic billfish plan finally passed muster with NOAA in 1986, but before receiving final approval, it was challenged in court by the Federation of 104

Id. at 63 (statement of James P. Walsh, representing the American Tunaboat Association). On U.S. unilateral sanctions, see C. J. Carr & H. N. Scheiber, Dealing with a Resource Crisis: Regulating Regimes for Managment of the World’s Marine Fisheries, 21 STANFORD ENVTL L. J. 45, 63-68 (2002). 105 Billfish Management Under the Fishery Conservation and Management Act, Legal Op. 82 GC/NOAA (Oct. 3, 1979). 106 Id. at 1. 107 Id. at 3. 108 See NOAA Fishery Management Study (June 30, 1986) at 19; see also Draft Inter-Council Congressional Position Paper re Proposed Amendments to Section 102 of the MFCMA (Dec.19, 1988 Draft) at 7 (copy in author’s files).

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Japan Tuna Fisheries on the ground that it violated the Magnuson Act’s tuna exclusion provisions, and NOAA reversed course, disapproving the plan.109 The efforts of the Western Pacific Regional Fishery Management Council (based in Hawaii) to develop a fishery management plan for billfish were similarly drawn out and frustrated by concerns about the consistency of the plan with the tuna exclusion provisions and the U.S. juridical position on tuna. The Council first submitted a draft fishery management plan for billfish to NOAA for review in 1981.110 The central feature of the draft Plan was a management measure closing approximately 30 percent of the FCZ to longline fishing for tuna.111 After reviewing the draft Plan, the National Marine Fisheries Service (“NMFS”) rejected it. In its view, the Plan, while ostensibly “designed to achieve a transfer of billfish catches from foreign tuna fishermen using longline gear to domestic fishermen,” did not promote conservation, promised too speculative economic and social benefits, and was unnecessary because U.S. fishermen in the region were already taking billfish.112 In addition, NMFS found the FMP would violate the “balancing test” of the NOAA legal opinion, and would negatively impact U.S. tuna policy.113 NMFS summed up its concerns about the impacts of the Western Pacific Council’s proposed billfish Plan on U.S. tuna policy in writing: We fully appreciate the difficulties of designing a management regime for billfish vis-à-vis our national policy on highly migratory species. Officials at NMFS, the Department of State and other Federal agencies have enunciated this policy many times, formally and informally, while the plan was in preparation. Our views at this time remain essentially unchanged. In short, we cannot endorse sweeping closures of the U.S. fishery conservation zone (FCZ) to foreign longline fishing for tuna without more substantial benefits to the conservation and management of billfish than are identified in the plan.114

Over the next several years, the Western Pacific Fishery Management Council resubmitted its draft Plan to NMFS for review and approval more than once. Each time, NMFS rejected it. The “single most significant legal issue in the [Plan],” according to NMFS, was “the justification for the size of the closed areas in view of the balancing test.”115 Finally, in 1987, NMFS approved a Plan that did not create closed areas, but rather established a mechanism by which they could be later implemented.116 Therefore, while the Western Pacific Re109

See Draft Inter-Council Congressional Position Paper at 8. Smith to Yee, July 28, 1981, at 1, in Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (July 1986) (“Final Pelagics FMP”) at 13-3 (copy in author’s files). 111 Final Pelagics FMP at 13-9. 112 Final Pelagics FMP at 13-5 to 13-9. 113 Final Pelagics FMP at 13-9. 114 Final Pelagics FMP at 13-3. 115 Hochman to Western Pacific Regional Fishery Management Council (c. Summer 1985) in Final Pelagics FMP at 13-101. 116 52 Fed. Reg. 5983 (Feb. 27, 1987). 110

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gional Fishery Management Council’s billfish Plan was finally approved, after more than half a decade of wrangling between the Council and the federal government over the application and implications of the FCMA’s tuna exclusion provisions for U. S. management of other highly migratory species, the plan that was ultimately approved fell short of the Council’s aspirations for tuna management.

C. The Fishery Management Councils Secure Tuna Inclusion Amendments By the mid-1980s, momentum was already building for tuna inclusion as the regional management councils were frustrated in their efforts to regulate billfish. The movement for tuna inclusion would be given additional impetus in 1985 and 1986 as the Western Pacific Council, threatened with elimination, asserted it would play an essential role in the management of tuna. At the same time, however, the economic importance and political clout of the California-based U. S. distant water tuna industry was eroding. This confluence of circumstance set the stage for enactment of amendments to the FCMA in 1990 bringing tuna comprehensively under U. S. management jurisdiction. In 1985, a draft report of the Office of the Inspector General of the Department of Commerce recommended elimination of the Western Pacific Council, and the transfer of its responsibility to the Pacific Council, on the ground that there were not meaningful fishery resources to be managed in the Western Pacific region.117 The Western Pacific Council responded that most of the catch from fisheries in the region occurred in federal waters, regulated by the Council, and that substantial tuna fishing within the fishery conservation zones of the U.S. Flag Pacific islands, which the Council claimed had impelled it to advocate tuna inclusion from its inception, had to be taken into account.118 Shortly thereafter, in 1986, a blue ribbon study of fishery management commissioned by NOAA recommended tuna inclusion.119 However, the same study recommended elimination of the Western Pacific and Caribbean fishery management regional councils on the ground that most fisheries within their regions were conducted within state, commonwealth and territorial boundaries, rendering those councils largely purposeless.120 To say that the Inspector General’s report and NOAA fishery management study “activated” the Western Pacific Council to press for tuna inclusion is an understatement. In response to the NOAA Study, the Western Pacific Council argued that its recommendation to subject tuna to U.S. fishery management ju-

117

NOAA Letter from Yee to Breaux, Feb. 28, 1985 (copy in author’s files) (citing “Opportunities for Cost Reductions and Operational Efficiencies in Management Fishery Resources”). 118 Yee to Breaux, Feb. 28, 1985 at 2 (copy in author’s files). 119 NOAA Fishery Management Study (June 30, 1986) at 19 (copy in author’s files). 120 Id. at 13.

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risdiction required the existence of the Council to carry out such management.121 The Council’s response resulted in the publication of an Addendum to the study which receded from the earlier recommendation to eliminate the Western Pacific and Caribbean councils.122 With tuna management identified, if not as its raison d’etre, then as one of its essential functions, the Western Pacific Council would orchestrate the campaign of the fishery management councils for tuna inclusion. This campaign would culminate in 1990 with enactment of amendments repealing the tuna exclusion provisions of the FCMA and subjecting tuna to exclusive U.S. management in the EEZ. This paper will not detail the history of that campaign, but rather will only sketch the main arguments for and against tuna inclusion, and note the changing political economy of the U. S. tuna industry, that led to enactment of the tuna inclusion amendments to the FCMA in 1990. One of the main arguments of tuna inclusion supporters was that while the U.S. domestic fishery for tuna inside the U.S. 200-mile zone had increased dramatically since enactment of the FCMA in 1976, this economically valuable fishery could not be managed by U.S. authorities and was subjected to virtually unlimited foreign fishing.123 A further argument put forward in support of tuna inclusion was that studies showed that tuna, and particularly commercially important skipjack and yellowfin species, were not, in fact, highly migratory so as to require international management for their effective regulation.124 Supporters of tuna inclusion also asserted that the 1987 Tuna Treaty had effected de facto recognition of coastal state jurisdiction over tuna and that elimination of the FCMA’s tuna exclusion provisions and the U.S. juridical position would improve U.S. foreign relations in the Pacific.125 Finally, supporters of tuna inclusion emphasized difficulties in billfish management posed by the FCMA’s tuna exclusion provisions.126 Tuna inclusion was opposed, as it had been for years, by U.S. distant-water tuna interests and the Department of State. In their views, the negotiating “lever121

Yee to Calio, Sept. 5, 1986 at 18 (copy in author’s files). See Tuna Management: Hearing Before the National Ocean Policy Study of the Senate Comm. on Commerce, Science, and Transportation, 100 1st Cong., 1st Sess. (1974) [hereinafter “1989 Senate Tuna Inclusion Hearing”] at 43 (Addendum to the NOAA Fishery Management Study, Sept. 18, 1986). 123 See id. at 2 (statement of Sen. Inouye), 69 and 72 (statement of William Paty, Chairman, Western Pacific Regional Fishery Management Council). 124 Id. at 44-47 (statement of Richard Shomura, Researcher, Hawaii Institute of Geophysics, School of Ocean and Earth Sciences and Technology, University of Hawaii); see also Ray Hilborn and John Sibert, Is International Management of Tuna Necessary? MARINE POL’Y 31 (Jan. 1989). 125 Senate Tuna Inclusion Hearing at 2 (statement of Sen. Inouye), 7-10 (statement of The Hon. Peter Tali Coleman, Governor of American Samoa), 13 (statement of Adm. Ronald J. Hays, President, Pacific International Center for High Technology Research), 70 and 75-76 (statement of William Paty, Chairman, Western Pacific Regional Fishery Management Council). 126 Id. at 69 and 73 (statement of William Paty, Chairman, Western Pacific Regional Fishery Management Council), 142-143 (statement of National Coalition for Marine Conservation). 122

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age” afforded by the U.S. juridical position had made possible the conclusion of the 1987 Tuna Treaty and, moreover, that Treaty did not recognize coastal state jurisdiction over tuna.127 Opponents of tuna inclusion also challenged the claim that tuna are not really highly migratory species, meriting international management.128 They further argued that there was relatively little foreign fishing for tuna in the U.S. EEZ and so no need to regulate or exclude such vessels.129 They also rejected the argument that the FCMA’s tuna exclusion provisions had negatively impacted billfish management in the U.S. EEZ.130 Finally, a number of tuna inclusion opponents characterized the push for it as an effort by recreational fishermen to restrict commercial fishing in the U.S. EEZ for tuna.131 However, by the mid-1980s the U.S. distant-water tuna industry no longer enjoyed the substantial political and economic clout that it had exercised in the past. Between 1980 and 1985, U.S. tuna canneries relocated from the U.S. mainland to overseas sites.132 As a result, by the end of 1985, only one small cannery was left operating in the mainland United States.133 Cannery-based jobs and incomes declined by close to 95 percent during 1980-1985.134 Moreover, the negative economic impacts of the restructuring were not limited to canneries and their employees. As one commentator put it, “When an industry that produces $1.5 billion in food products moves out of the U.S. and attracts support industries to offshore sites, the indirect and induced economic losses spread to many sectors of the U.S. economy.”135 It was from this greatly weakened position that the industry opposition to tuna inclusion was mounted.

127

Id. at 16-17 (statement of Edward E. Wolfe, Jr., Deputy Assistant Secretary for Oceans and Fisheries Affairs, Department of State), 81, 88 (statement of James Walsh, U.S. Tuna Foundation), and 85 (statement of David G. Burney, U.S. Tuna Foundation). 128 Id. at 18, 25-26 (statement of Edward E. Wolfe, Jr., Deputy Assistant Secretary for Oceans and Fisheries Affairs, Department of State), 52 (statement of Dr. James Joseph, Director, Interim American Tropical Tuna Commission), 80 (statement of James Walsh, U.S. Tuna Foundation), and 83 (statement of David G. Burney, U.S. Tuna Foundation). 129 Id. at 18, 27 (statement of Edward E. Wolfe, Jr., Deputy Assistant Secretary for Oceans and Fisheries Affairs, Department of State), 80 (statement of James Walsh, U.S. Tuna Foundation), and 83 (statement of David G. Burney, U.S. Tuna Foundation). 130 Id. at 27 (statement of Edward E. Wolfe, Jr., Deputy Assistant Secretary for Oceans and Fisheries Affairs, Department of State), 80 (statement of James Walsh, U.S. Tuna Foundation), and 96 (statement of August Felando, President, American Tunaboat Association). 131 See id. at 84 (statement of David G. Burney, U.S. Tuna Foundation), and 95 (statement of August Felando, President, American Tunaboat Association). 132 DENNIS M. KING & HARRY A. BATEMAN, THE ECONOMIC IMPACT OF RECENT CHANGES IN THE U.S. TUNA INDUSTRY (1985); see also ALESSANDRO BONANNO & DOUGLAS CONSTANCE, CAUGHT IN THE NET: THE GLOBAL TUNA INDUSTRY, ENVIRONMENTALISM, AND THE STATE 149-52 (1996). 133 King (1985) at 23, 27 n. 23. 134 Id. at 27 n. 23. 135 Id. at 6.

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The debate on these issues culminated in the enactment of amendments bringing tuna under the FCMA in late 1990.136 The amendments delayed the effective date for the assertion of U.S. jurisdiction over tuna until 1992.137 Nonetheless, the repeal of the FCMA’s tuna exclusion provisions very clearly signaled the waning of the U.S. distant water tuna industry’s political power which had strongly influenced U.S. fisheries policy for much of the post-World War II era. While it is also widely understood to have signaled the demise of the juridical position, in truth one component of the juridical position would continue to persist as an important element of U.S. fisheries diplomacy: the insistence that tuna be managed through international cooperation as called for by Article 64 of the Law of the Sea Convention.

VI. The U.N. Fish Stocks Agreement The jurisdictional conflicts inherent in tuna fisheries management were highlighted yet again in the negotiations of the U.N. Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks that took place in New York between 1993 and 1995.138 The Conference was principally animated by the desires of 136

P.L. 101-627; 26 Weekly Comp. Pres. Doc. 1932 (Dec. 3, 1990). Historical and Statutory Notes to 16 U.S.C. § 1812. 138 The commentary on the Conference and the treaty it produced is extensive. See, e.g., Moritaka Hayashi, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: An Analysis of the 1993 Sessions, 11 OCEAN YEARBOOK 20, 2045 (1994); David A. Balton, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, 27 OCEAN DEV. & INT. L. 125, 125-52 (1996); Andre Tahindro, Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” 28 OCEAN DEV. & INT. L. 1, 1-58 (1997); Moritaka Hayashi, The 1995 Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention, 29 OCEAN & COASTAL MGMT. 51, 51-69 (1995); Peter Örebech, K. Sigurjonsson, & Ted McDorman, The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement, 13 J. MARINE & COASTAL L. 119, 119-41 (1998); Lisa Speer & S. Chasis, The Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks: An NGO Perspective, 29 OCEAN & COASTAL MGMT. 71, 71-77 (1995); Patrick E. Moran, Recent Developments and Announcements: High Seas Fisheries Management Agreement Adopted by U.N. Conference: The Final Session of the United Nations Conference on Straddling and Highly Migratory Fish Stocks, New York, 24 July-4 August 1995, 27 OCEAN & COASTAL MGMT. 217, 217-25 (1995); Jon M. Van Dyke, Modifying the 1982 Law of the Sea Convention: New Initiatives on Governance of High Seas Fisheries Resources: The Straddling Stocks Negotiations, 10 J. MARINE & COASTAL L. 219, 219-27 (1995); Ronald Barston, United Nations Conference on Straddling and Highly Migratory Fish Stocks, 19 MARINE POL’Y 159, 159-66 (1995); Alex G. Oude Elferink, The Impact of Article 7(2) of the Fish Stocks Agreement on the Formulation of Conservation & Management Measures for Straddling & Highly Migratory Fish Stocks, FAO LEGAL PAPERS ON LINE #4 (Aug. 1999); Lawrence Juda, The 1995 United 137

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certain coastal states, most notably Canada and several Latin American countries, to exercise jurisdiction over foreign fishing in high seas areas adjacent to their EEZs to address what they believed were irresponsible fishing practices.139 The positions of Canada and like-minded coastal states, on the one hand, and distant water fishing nations, on the other hand, concerning the issue of the relative authorities of coastal and fishing states with respect to management of fish stocks both within and beyond EEZs had been largely unchanged for some 20 years, since the basic fisheries provisions of the Law of the Sea Convention had been established in the mid-1970s. Indeed, the most significant change in the position of any state on issues concerning the management of straddling stocks and highly migratory species had been the U.S. renunciation of its juridical position on tuna by the 1990 FCMA amendment. This change of position enabled the United States, as a country with both coastal and distant water interests, to play a self-described “brokering” role at the U.N. Fish Stocks Conference.140 As concern and controversy rose in the late 1980s and early 1990s about the impacts of high seas fisheries on the fish stocks, countries were in agreement that effective conservation of fish stocks required compatibility and consistency between conservation and management measures applicable to EEZ and adjacent high seas areas. However, various meetings in the early 1990s that considered the problems of high seas fisheries for straddling stocks and highly migratory species had revealed the continuing lack of agreement between coastal and fishing states on the means to insure such compatibility and consistency. 141 So it was not surprising that the Conference struggled mightily to reach agreement on such mechanisms.142 Indeed, as discussed in detail above, the Third Law of the Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique, 28 OCEAN DEV. & INT. L. 147, 147-66 (1997); William T. Burke, Compatibility and Precaution in the 1995 Straddling Stock Agreement in LAW OF THE SEA: THE COMMON HERITAGE AND EMERGING CHALLENGES 115 (Harry N. Scheiber, ed., 2000); GOVERNING HIGH SEA FISHERIES (Olav Schram Stokke, ed., 2001). Although extensive commentary is available, there is no official record of Conference negotiations. The negotiations were usefully chronicled in the EARTH NEGOTIATIONS BULLETIN [hereinafter ENB] prepared by the International Institute for Sustainable Development, collected and available at http://www.iisd.ca/linkages/fish.html (last visited Feb. 20, 2004). In addition, documents issued at the Conference are available, and many of them have been collected, in UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS: SELECTED DOCUMENTS (Jean-Pierre Lévy & Gunnar G. Schran, eds. 1996). 139 On the background of, and events leading up to, the Conference see Hayashi (1994), supra note 138, at 26-30; Balton (1996), supra note 138, at 130-33. 140 Information Memorandum from David A. Colson to Mr. Wirth, U.N. Fisheries Conference, May 6, 1994 at 2 (copy in author’s files); see also Balton (1996), supra note 138, at 133-34. 141 Hayashi (1994), supra note 138 at 26-30. 142 See id. at 41-42; see also Balton (1996), supra note 138, at 132. Possible precedent for ensuring compatibility was provided by the agreements establishing the Northwest Atlantic Fisheries Organization (“NAFO”) and the North East Atlantic Fisheries Commission (“NEAFC”). See Hayashi (1995), supra note 138, at n. 22; see also Tahindro (1997), supra note 138, at 16. Both of these regional fishery organizations are

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Sea Conference had left this issue unresolved with respect to highly migratory species in Article 64. It also left ambiguity with respect to straddling stocks in Article 63. The Chair of the Fish Stocks Conference, Satya Nandan, adumbrated the difficulties posed by this issue when he observed in a background paper prepared for the Conference that while Articles 63 and 64 require coastal and fishing states to cooperate and collaborate in the conservation and management of straddling stocks and highly migratory species, they “do not resolve the underlying conflict of rights that is at the heart of the problem.”143 The first substantive session of the Straddling Stocks Conference, held in July 1993, mostly served to provide an opportunity for coastal states and distant water fishing nations to stake out their positions and highlight areas of disagreement. The “Canadian Core Group” consisting of Canada, and the other traditionally “coastal” states of Argentina, Chile, Iceland and New Zealand, submitted, at the close of the session, a draft Convention whose area of application would have been limited to fish stocks on the high seas only.144 In addition, consistent with the Canadian Core Group’s “coastal” orientation, the draft Convention would have required conservation and management measures for fish stocks on the high seas to, inter alia, “recognize and give effect to the special interest of coastal states” in such stocks.145 However, despite the reassertion of decades-old coastal and fishing state positions, “[t]here was no disagreement on the need to achieve consistency and compatibility between the conservation and management measures adopted within and outside the EEZ. The issue was how to attain that goal in a mutually satisfactory manner.”146 Going into the second substantive session of the Conference, held in March 1994, the United States made known its view that the provisions of the Chairman’s Negotiating Text bearing on compatibility “need[ed] more balance” because “the text collectively grant[ed] Coastal States excessive authority over fishing for [straddling stocks and highly migratory species] on the high seas.”147 required to seek to ensure compatibility of measures they prescribe for high seas areas with measures adopted by coastal states in adjacent EEZs. See Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, (done 24 October 1978; entered into force 1 January 1979), Art. XI; Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, (done 8 November 1980; entered into force 17 March 1982), 1285 UNTS 130, Art. 8. 143 Background paper, A/CONF. 164/INF/5 (8 July 1993) at ¶ 58. Nandan, who had served as rapporteur for the Committee that drafted the fishery articles of UNCLOS at the Third Law of the Sea Conference, would play a dominant role in the efforts of the Fish Stocks Conference to fill in the lacunae left by Articles 63 and 64. 144 Draft Convention on the Conservation and Management of Straddling Fish Stocks in the High Seas and Highly Migratory Fish Stocks in the High Seas, A/CONF. 164/L. 11/Rev. No. 1, 28 July 1993 (Art. 2.). 145 Id. Art. 4(a)(iii)-(v). 146 Hayashi (1994), supra note 138, at 43. See also Francisco Orrego Vicuña, The International Law of High Seas Fisheries in Stokke, ed., supra note 138, 38-44. 147 “U.S. Objectives for Conference Sessions in 1994,” prepared by Office of Marine Conservation, Bureau for Oceans and International Environmental and Scientific Affairs, U.S. Department of State, Feb. 1994, at 10, copy in author’s files.

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Indeed, at this stage of the Conference, it had yet to become clear that the agreement being negotiated would address straddling stocks and highly migratory species throughout their range, and not only on the high seas as was being advocated by coastal states and the Canadian Core Group in particular. This prompted the United States to declare that, at least with respect to highly migratory species, it would “oppose any approach which suggests an arrangement for the high seas only.”148 The United States identified the principal point of difficulty regarding compatibility, and proposed addressing it, as follows: While all countries may recognize the need for compatibility and consistency between conservation and management measures within EEZs and on the high seas, the real issue centers on mechanisms to achieve, and where necessary, to impose such compatibility and consistency. Some States believe that the success of the Conference ultimately turns on its ability to resolve this debate through specific, legally-binding rules. While we remain open to this possibility, we believe, given the diversity of resource and user needs represented by the delegations, the Conference would be better served by agreement on a set of parameters within which the debate can be resolved on regional bases.149

At the close of the Second Session, the Chair issued a Revised Negotiating Text the compatibility provisions of which remained weighted in favor of coastal states—an orientation such states argued was ordained by UNCLOS. Just how much it was weighted toward coastal states was, of course, subject to disagreement. According to one commentator, the Revised Negotiating Text still gave a “slight jurisdictional tilt” to coastal states.150 The Revised Negotiating Text required fishing states to “respect” measures adopted by coastal states for EEZs, by, inter alia, “ensur[ing] that the measures established [for the same stocks in] the high seas are no less stringent.” 151 In addition, the Revised Negotiating Text required disagreements concerning compatible and coordinated conservation and management measures to be resolved through dispute settlement, but specified that until such disagreements were re-

148

See id. at 11 (copy in author’s files). “[T]he United States insisted on maintaining a fundamental distinction between [straddling stocks and highly migratory species], as is reflected in articles 63(2) and 64 of the Convention. For straddling stocks, . . . article 63(2) required coastal states and fishing states to cooperate in the development of conservation measures applicable only on the high seas. For highly migratory species, by contrast, article 64 calls for cooperation in the development of such measures to apply both within and beyond the EEZ.” Balton (1996), supra note 138, at 134. 149 “U.S. Objectives for Conference Sessions in 1994,” prepared by Office of Marine Conservation, Bureau for Oceans and International Environmental and Scientific Affairs, U.S. Department of State, Feb. 1994, at 11-12 (copy in author’s files). 150 William T. Burke, State Practice, New Ocean Uses and Ocean Governance under UNCLOS 9, Paper presented to the 28th Annual Conference of the Law of the Sea Institute, 11-14 July, 1994, Honolulu, Hawaii, quoted in Van Dyke (1995), supra note 138, at 220-21. 151 Revised Negotiating Text, A/CONF. 164/13/Rev. No. 1 (30 March 1994), ¶¶ 7, 7(d).

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solved fishing states had to “observe conservation and management measures equivalent in effect” to those applicable in the adjacent EEZ.152 At the next session of the Conference, held in August 1994, the compatibility provisions of the Fish Stocks Convention would largely be determined. The groundwork for agreement on the compatibility provisions had been laid at an intersessional meeting held in June in Buenos Aires, attended by the Chairman and fourteen key coastal states, fishing states, and the United States.153 At that meeting, fishing states voiced concerns that the compatibility provisions of the Revised Negotiating Text were “too strongly weighted toward recognition and application of coastal state measures in international waters.”154 To address this perceived imbalance, the meeting developed “compromise wording” on compatibility, which also, in the estimation of the U.S. delegation, appeared to be a factor in the agreement of some fishing states to work toward a binding instrument.155 The “compromise wording” eliminated the directive that fishing states “respect” measures adopted by coastal states for areas under national jurisdiction,156 and tempered the requirement that measures established for the high seas be no less stringent than those for areas under national jurisdiction in respect of the same stocks.157 In addition, while the parties at Buenos Aires agreed to retain the requirement that states resolve their disagreements about compatibility by dispute settlement, their compromise wording eliminated the mandate for observance of provisional measures.158 The United States believed that these changes would “accomplish several key objectives,” including, “establish the distinction between straddling fish stocks and HMS [and] make clear that international HMS regimes should apply throughout the region, both within and beyond EEZs, while SS regimes should apply to the area adjacent to the EEZs.”159 At the third session of the Conference, held in August 1994, significant further progress was made in resolving how compatibility of conservation and management measures in EEZs and high seas areas could be achieved while still respecting the jurisdictional competency of coastal states within EEZs. The “Draft Agreement” prepared by the Chairman160 incorporated some, but not all, of the “compromise wording” developed at the Buenos Aires intersessional meeting.

152

Id. ¶ 8. Where no coastal state measures existed, but a regional organization had established such measures for a high seas area, the coastal state was to “observe measures equivalent in effect to those agreed in respect of the same stock(s) in the high seas.” Id. 153 See Report of U.N. Intersessional Meeting, Buenos Aires, June 14-17, 1994, prepared by Office of Marine Conservation, Bureau for Oceans and International and Scientific Affairs, U.S. Department of State, undated (copy in author’s files). 154 Id. at 2. 155 Id. 156 Id. 157 Id. 158 Id. 159 Id. 160 See Draft Agreement, A/CONF. 164/22 (23 Aug. 1994).

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First, the Draft Agreement eliminated the language requiring fishing states to “respect” measures adopted by coastal states in developing compatible conservation and management measures for the same stocks in high seas areas. 161 Second, it tempered the requirement that high seas measures be compatible with those for the same stocks in EEZs by imposing on states the duty to insure that such high seas measures “do not undermine” the effectiveness of measures established in respect of the same stocks in EEZs.162 Furthermore, the Draft Agreement, while it did not, as the text developed at the intersessional meeting would have, altogether eliminate reference to provisional measures pending resolution of disputes, did soften the obligation of parties to apply such measures.163 These changes unquestionably altered the balance that had been struck by the compatibility provisions of the Revised Negotiating Text, as was acknowledged by coastal and fishing states alike.164 It is probably accurate to say that the balance struck by the Draft Agreement still tilted slightly in favor of coastal states, though the extent to which it did so is subject to dispute.165 The compatibility provisions of the final agreement would not differ significantly from those contained in the Draft Agreement produced by the Chairman at the end of the third session of the Conference. Despite the efforts of coastal and fishing states to further alter the “balance” of Article 7,166 only very minor changes were made to the Draft Agreement at the fourth session of the Conference. At the end of the session, the Draft Agreement as revised was presented as the Chair’s Revised Text. 167 Further proposals by coastal and fishing states to alter the “balance” struck by Article 7 were re161

See id. Id. ¶ 7.2(a). 163 Id. ¶¶ 4-7. 164 See ENB:07:39, supra note 138, Reactions to the Draft Agreement section (e.g., statements of South Pacific Forum Fisheries Agency and Japan), available at http://www.iisd.ca/linkages/vol07/0739021e.html (last visited Feb. 20, 2004). 165 For example, one commentator observed: “Although the Draft Agreement drops the ability for the coastal state to require observance of its regulations in the area beyond the 200-nautical mile EEZ pending agreement, it achieves more or less the same result by substituting rigid requirements for binding dispute resolution designed to promote early agreement on terms that are ‘compatible’ with the coastal states’ regulation of its own citizens in its own zone.” Van Dyke (1995), supra note 138, at 223. Based on this, and other provisions of the Draft Agreement, this commentator concluded that “[t]he current language in the Draft Agreement gives the coastal states the upper hand in initiating management regulations that apply beyond the 200-mile zones.” Id. at 224. 166 See ENB:07:43, supra note 138, Part II-Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks section (proposal of Iceland), available at http://www.iisd.ca/linkages/vol07/0743015e.html (last visited Feb. 20, 2004); ENB:07:43, Part III-Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks section (proposal of Peru and statement of Japan), available at http://www.iisd.ca/linkages/vol07/0743016e.html (last visited Feb. 20, 2004). 167 See Chair’s Revised Text (or “Revised Draft Agreement”), A/CONF.164/22/ Rev. 1 (11 Apr. 1995). 162

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buffed at the fifth and final session of the Conference, held in July and August 1995.168 While it is perhaps too sanguine to claim, as has one commentator, that “Article 7 of the agreement solves the compatibility problem,”169 the provisions of Article 7 do, as another scholar has asserted, “represent clearly significant steps forward from the [1982] LOS Convention, which . . . contains no reference to the concept of compatibility, nor any guidance as to the relationship between the conservation and management measures adopted for the [high seas and EEZs].”170 At the same time, “the Agreement had to be formulated at a sufficient level of abstraction to be equally applicable to all regional situations.”171 This was done so that the Agreement would, as Chairman of the Conference described it, provide for “a globally agreed framework for regional cooperation in the field of fisheries conservation and management consistent with the situation prevailing in each region as is envisaged in the 1982 U.N. Convention on the Law of the Sea.”172 Although commentators differ over the precise meaning and application of the Agreement’s compatibility provisions, most agree with Burke’s conclusion that, at the very least, “Article 7 provides a slight but noticeable tilt in favor of the substantive regulations prescribed by coastal states. . . .”173 No commentator appears to view the Agreement’s compatibility provisions as giving precedence to measures established by regional fisheries organizations over measures promulgated by coastal states for their EEZs. Some stake out a middle ground, noting that the Agreement contains language supportive of the competence of both coastal states and regional organizations, and concluding that in leaving it to such organizations to resolve for themselves the compatibility conundrum, the Agreement thereby ordains “a legal regime of atomized legal decisions at the [regional organization] level.”174

168

See ENB:07:54, supra note 138, Part II-Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks: Article 7-Compatibility of Conservation and Management Measures section, available at http://www.iisd.ca/linkages /vol07/0754012e.html (last visited Feb. 20, 2004); ENB:07:48, Informal Plenary: Part III-Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks section (proposal of EEU, Japan, Poland and Korea), available at http://www.iisd.ca/linkages/vol07/0748002e.html (last visited Feb. 20, 2004). 169 Balton, supra note 138, at 137. 170 Hayashi, supra note 138, at 57-58. 171 Elferink, supra note 138, at 3. 172 Statement made by the Chairman of the Conference at the closing of the fourth session, held on 26 August 1994, A/CONF. 164/24 (8 Sept. 1994) ¶ 5(d). 173 Burke, supra note 138, at 115; see also Tahindro, supra note 138, at 18 (Under the compatibility provisions of the Agreement “the coastal states’ interests might take priority over those of high seas fishing states in circumstances where they would be unable to agree on compatible measures necessary for the conservation and management of straddling fish stocks and highly migratory fish stocks.”). 174 Örebech et al., supra note 138, at 128.

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The first attempt to implement the compatibility requirements of the Fish Stocks Agreement took place in the negotiation at Honolulu in 2000 of an Article 64 body for conservation and management of tuna stocks in the Western and Central Pacific Ocean.

VII. The Last Act: The Development of a Western Pacific Tuna Convention All of the developments canvassed above culminated in the conclusion in September 2000 of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (hereinafter “Western Pacific Tuna Convention” or “Honolulu Convention”).175 This Convention resulted from negotiations between the Pacific island countries and fishing nations in the Multilateral High-Level Conference (“MHLC”) process that had begun in December 1994.176 It “represents the final chapter” in relations between the Pacific island countries and distant-water fishing nations.177 The U.S. juridical position on tuna had long stymied efforts to develop an Article 64 type body for the tuna fisheries of the Central and Western Pacific. The chairman of the MHLC, Satya Nandan of Fiji,178 underscored this by observing in his closing remarks that when the FFA was established in the late 1970s “it was not opportune to negotiate” an Article 64 type body “mainly because some distant water fishing nations did not recognize the jurisdiction of coastal states over highly migratory species in their exclusive economic zones.”179 Soon after the 1990 tuna inclusion amendments by the United States 175

Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, opened for signature Sept. 4, 2000 (last visited Feb. 20, 2004, available at http://www.spc.org.nc/coastfish/Asides/Conventions). 176 Final Act of the Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, 7th Sess., Aug. 30-Sept. 5, 2000, Annex 10 (visited on Feb. 18, 2002) available at http://www.spc.org.nc/coastfish/ Asides/Conventions [hereinafter MHLC Report]. 177 Transform Aqorau, Tuna Fisheries Management in the Western and Central Pacific Ocean: A Critical Analysis of the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean and Its Implications for the Pacific Island Nations, 16 INT’L J. MARINE & COASTAL L. 379, 397 (2001) [hereinafter “Aqorau (2001)”]. 178 In addition to having chaired the negotiations for the U.N. Fish Stocks Agreement, Nandan had served as rapporteur for Committee II at the 1975 Geneva Session of the Law of the Sea Conference, which produced the text for what was to become Article 64. 179 Closing remarks by the chairman, Ambassador Satya N. Nandan to the Seventh Session of the Multilateral High-Level Conference, Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, 7th Sess., Aug. 30-Sept. 5, 2000, Annex 8 (last visited on Feb. 20, 2004) available at http://www.spc.org.nc/coastfish/Asides/Conventions.

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had removed this impediment to such negotiations, the MHLC process began and it is not surprising that there was not much “direct discussion of the jurisdictional dispute over tuna” in it.180 However, the Honolulu Convention itself definitively resolves neither the longstanding differences in view as to the meaning and requirements of Article 64, nor how the compatibility requirement of Article 7 of the U.N. Fish Stocks Agreement is to be implemented. Throughout the negotiations the island countries and fishing nations were “keenly aware that they had differing views of Article 64’s duty to cooperate and the compatibility requirement of Article 7 of the U.N. Fish Stocks Agreement”; and they “did not try to directly persuade each other of their views.”181 Instead, the parties agreed upon a formulation, consisting of several articles, “that in important ways reconciles their differing interests.”182 The most important of these articles concerns application of regulatory measures developed by the Commission to areas of national jurisdiction. As had been the case in the negotiations concerning the highly migratory species article at UNCLOS, the parties to the MHLC could not reach agreement on whether or not coastal states would be required to apply regulations developed by regional organizations in their EEZs. The Honolulu Convention assigns the Commission the responsibility and authority to develop conservation and management measures for both high seas and areas of national jurisdiction.183 Although the text of the Convention leaves it to the Commission to decide how a particular measure is to be implemented, according to a U.S. negotiator, “[a] major assumption in the Convention is that coastal states will be willing to vote on a case-by-case basis (but not as a general requirement built into a treaty) to apply Commission measures within waters under their national jurisdiction.”184 At the same time, in light of the Convention’s failure to specify that certain measures developed by the Commission must be applied in EEZs, one Pacific island country commentator has observed that “it is not clear what role the Commission will play in regulating EEZ areas.”185 Anticipating an area of likely controversy in the future, this same commentator believes “the Convention is not so clear as to whether the powers of the Commission also include adoption of measures for areas under national jurisdiction.”186 By leaving it to the Commission to decide what measures, if any, to apply in areas of national jurisdiction, the MHLC parties took an approach similar to that spelled out in the Evensen Group’s draft article on highly migratory species at the 1975 Geneva Session of the Law of the Sea Conference. That draft article 180

Violanda Botet, Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean, 41 VA. J. INT’L L. at 800 n. 61 (2001) [hereinafter “Botet (2001)”]. 181 Id. at 800. 182 Id. at 801. 183 See Western Pacific Tuna Convention at Art. 3(3). 184 Botet, supra note 180, at 801. 185 Aqorau, supra note 177, at 394. 186 Id.

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had assigned to the regional organization the responsibility and authority to develop conservation and management measures, and also to decide which of those measures would be “standards” that coastal states were obliged to implement in their exclusive economic zones.187 Of course, these provisions of the draft article were not incorporated in Article 64, which also left unresolved the related issue of the compatibility of measures for the high seas and zones of national jurisdiction. The Honolulu Convention mandates the Commission to adopt a variety of conservation and management measures,188 and requires coastal states to apply in areas under their national jurisdiction those measures determined applicable to such areas by the Commission.189 The Convention further seeks to insure compatibility of measures in high seas and areas of national jurisdiction by requiring measures adopted by the Commission to be compatible with coastal state measures, and enjoining coastal states to insure that measures they adopt and apply in areas under their jurisdiction do not undermine the effectiveness of measures adopted by the Commission.190 As to the decision-making procedures established by the Convention, again the influence of the Evensen Group’s draft article, affording coastal states significant protections, is evident. The Evensen Group’s draft article provided for the organization to adopt binding “standards” and non-binding “recommenda187

See Group of Juridical Experts, The Economic Zone, 16 Apr. 1975, Art. 12, reproduced in UNCLOS DOCUMENTS, supra note 17, Vol. XI, at 487. See discussion of this draft article and its fate in section I.B., above. 188 Western Pacific Tuna Convention arts. 5, 10. 189 See id. Art. 7(1). Interestingly, the Convention, in obligating coastal states to apply conservation and management measures in areas of national jurisdiction, specifies that coastal states do so “in the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing highly migratory fish stocks.” Western Pacific Tuna Convention Art. 7(1). This theory of regulatory authority was advocated by the Pacific island countries, and opposed by the United States, in the discussions that led to the establishment of the FFA in the late 1970s. As Kent, supra note 69, at 168 described the disagreement: If a regional organization were to be established on the basis of national rights in the 200 mile zones (whether for highly migratory species or for fisheries generally), the mandate for the organization would derive from powers delegated to the separate nations. The organization would act as agent for the member nations by their consent. And it would be the delegation of national rights which would provide the basis for national participation in the decision-making of the organization. By this approach, national jurisdiction would be a prerequisite for management through a regional organization. However, according to the United States’ position, the separate nations would not be the source of those powers at the regional level, so far as highly migratory species were concerned, since they would not have those powers at the national level. Their standing would remain uncertain. By the FCMA tuna inclusion amendments the United States had, of course, repudiated this earlier position. 190 See Western Pacific Tuna Convention Art. 8(1), (3). One PIC commentator has argued that “Article 8(3) departs significantly from the U.N. Fish Stocks Agreement” by so enjoining coastal states in that the latter “clearly gives preference to coastal state measures.” Aqorau, supra note 177, at 387-88.

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tions” by consensus or, in its absence, “a two-thirds majority, including the votes of all coastal States of the region present and voting.”191 This effectively gave each coastal state in the organization a veto. The Honolulu Convention specifies that only decisions of the Commission concerning the allocation of the total allowable catch or the total level of fishing effort, including decisions related to the exclusion of vessel types, must be taken by consensus.192 All other decisions regarding conservation and management measures may be decided by a three-fourths majority, if consensus cannot be reached.193 However, the threefourths majority vote must be supported by the votes of three-fourths of each of two “chambers,” composed of FFA member countries and non-FFA member countries, respectively.194 The Convention also specifies that “in no circumstances shall a proposal be defeated by two or fewer votes in either chamber.”195 “This key proviso,” according to one commentator, “prevents a very small minority within one chamber from vetoing proposed measures.”196 In this respect, the Convention, as a formal matter, provides somewhat less protection to coastal states than the Evensen text would have. However, as a practical matter, the Commission will be unable to impose measures in areas of national jurisdiction unless the great majority of the island countries agree to such measures. At the same time, the two-chamber voting system provides protection to the fishing nations which the Evensen text would not have.197 Hence, although the Honolulu Convention may indeed be the “final chapter” in the relations between the Pacific island countries and distant water fishing nations, it is a chapter that remains to be completed. The Convention does not itself definitively resolve the “inside-outside” problem with respect to management of highly migratory species. But the Convention specifies principles and procedures according to which states party, through the Commission it establishes, are to implement Article 64’s duty to cooperate and related injunction to ensure the conservation of highly migratory species both within and beyond exclusive economic zones. Whether the Commission will serve as a laboratory for further elaboration of Article 64’s requirements remains to be seen.198

191 Group of Juridical Experts, The Economic Zone, 16 Apr. 1975, reproduced in UNCLOS DOCUMENTS, supra note 17, Vol. XI, at 487, Art. 5. 192 See Western Pacific Tuna Convention, Art. 10(4). 193 See id. Art. 20(2). 194 See id. 195 See id. 196 See Botet, supra note 180, at 803. 197 See id. for discussion of further aspects of the decision-making process established by the Convention. 198 On “regime interplay” and fisheries management more generally in international law and the newer agreements, see Olav Schram Stokke, Conclusions, in GOVERNING HIGH SEAS FISHERIES (Olav Schram Stokke ed., 2001), supra note 146, at 344-55.

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VIII. Conclusion The foregoing review of developments in the international law and diplomacy of tuna fisheries over the past three decades reveals a significant narrowing of disagreement over the respective competencies of coastal states and regional and international organizations to conserve and manage tuna both within and beyond EEZs. The recession by the United States from its strict juridical position has enabled significant progress to be made in the last decade on these issues. Nonetheless, the conclusion of international and regional agreements further refining the respective competencies of coastal states and international and regional organizations for conservation and management of tuna both within and beyond EEZs reveals continuing uncertainty on this score such that resolution of the “inside-outside” problem with respect to tuna will remain an ongoing process for the foreseeable future.

CHAPTER 5

Illegal, Unreported, and Unregulated (IUU) Fishing: Global and Regional Responses Moritaka Hayashi

I. Introduction The global production of marine capture fisheries grew steadily since 1950s, except for a temporary drop during the El Niño years in early 1970s, until about a decade ago. Toward the end of the 1980s, however, the production apparently reached the peak. It started to decline in the 1990s and has since leveled off for the last decade with the annual catch of slightly over 80 million tons.1 The timing of the downturn of the global catch coincided with the preparatory process for the 1992 United Nations Conference on Environment and Development (UNCED). Conservation of marine living resources thus became an important subject at UNCED, and a number of concrete steps were recommended in Agenda 21,2 the action plan toward and into the 21st Century it adopted. 1 See FAO, THE STATE OF WORLD FISHERIES AND AQUACULTURE 2000 (Rome: FAO, 2000), p. 4, Figure 1. 2 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, June 3-14, 1992, vol. I (Sales No. E.93.I.8), Annex II.

95 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 95-123. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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From the international legal point of view, Agenda 21 benefited much from the solid foundation and framework already laid down by the U.N. Convention on the Law of the Sea (LOS Convention).3 Most of the provisions of the Convention, particularly those concerning environmental protection and fisheries, had been accepted almost universally even before its entry into force in 1994. It was recognized, however, that the Convention was not sufficiently detailed to guide States to take effective measures for improved conservation and management of fishery resources. Agenda 21 thus offered a number of recommendations to improve the situation, and several instruments were subsequently adopted both at the global and regional levels to supplement the LOS Convention. Major global instruments thus adopted are: the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas4 (Compliance Agreement), adopted at the Food and Agriculture Organization of the United Nations (FAO) in 1993; the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks5 (U.N. Fish Stocks Agreement) adopted at the United Nations in 1995; and the Code of Conduct for Responsible Fisheries,6 adopted at FAO in the same year. In addition, FAO has adopted, within the framework of the Code of Conduct, four International Plans of Action, respectively, for the Management of Fishing Capacity, for Reducing Incidental Catch of Seabirds on Longline Fisheries, for the Conservation and Management of Sharks, and to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing.7 At the regional level, several new agreements have been concluded, and some of the existing agreements as well as regional fisheries organizations and arrangements (RFOs) have revitalized their activities. These post-UNCED instruments, however, have not been widely implemented and the new activities have not proven to be effective. This may be due partly to the fact that they are mostly still too new for many States to give serious attention. But the main reason appears to be the circumstances under which many developing countries are facing financial and human resource constraints in accepting and implementing them in an effective manner. Against such background, a growing number of fishing vessels started to cause serious problems by targeting high value fish stocks either in violation of national laws or regionally agreed measures, by becoming “free riders”, i.e., circumventing regional measures by not becoming Parties to RFOs, or by not reporting on their catch properly. It was thus reported by the Co-Chairpersons of the U.N. Informal Consultative Process on Oceans and the Law of the Sea 3

21 I.L.M. 1245 (1982). 33 I.L.M. 968 (1994). The Compliance Agreement entered into force on April 24, 2003, with the deposit of the 25th acceptance. 5 34 I.L.M. 1542 (1995). Entered into force on December 11, 2001, with 30 ratifications. 6 Text in NEW DIRECTIONS IN THE LAW OF THE SEA: GLOBAL DEVELOPMENTS 4.B (4) (Roy Lee and Moritaka Hayashi, eds., 1996). 7 Texts of the four International Plans of Action available at http://www.fao.org/fi/ ipa/ipae.asp (last visited Feb. 19, 2004). 4

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(UNICPOLOS) in 2000 that “the prevalence of . . . IUU fishing . . . was considered to be one of the most severe problems currently affecting world fisheries.”8 The U.N. General Assembly in its resolution on fisheries of the same year reiterated the same concern, and noted that IUU fishing affects the sustainability of living marine resources and “has a detrimental impact on the food security and the economies of many States, particularly developing States.”9 The serious nature of IUU fishing is also succinctly stated in the abovementioned International Plan of Action on IUU fishing: IUU fishing undermines efforts to conserve and manage fish stocks in all capture fisheries. When confronted with IUU fishing, national and regional fisheries management organizations can fail to achieve management goals. This situation leads to the loss of both short and long-term social and economic opportunities and to negative effects on food security and environmental protection. IUU fishing can lead to the collapse of a fishery or seriously impair efforts to rebuild stocks that have already depleted.10

Particular concern was expressed that IUU fishing may exacerbate the problem of discards and by-catch since IUU fishing vessels are likely to use unsustainable fishing practices and non-selective gear. It has been reported, e.g., that such fishing practices killed 50,000 to 89,000 seabirds in the area covered by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in 1998, compared with 1,562 killings attributed to legally conducted fishing activities. IUU fishing, by failing to provide vital data on catch, would also undermine the quality of scientific data collected by RFOs which are essential for their activities.11 National, regional and global measures to deal with IUU fishing raise several complicated legal issues. They include duties to cooperate for fisheries management in the context of the freedom of the high seas, effects of RFOs measures vis-à-vis non-members, duties of flag States and the problems caused by flag-of-convenience (FOC) vessels, the rights of port States with respect to fishing vessels, as well as the consistency of import restrictions with World Trade Organization (WTO) rules. Keeping these issues in mind, this chapter attempts to review the measures taken by global and regional organizations so far, and to analyze the key areas of action taken by RFOs in the light of provisions and standards established in the global instruments. The term “IUU fishing” has been used until recently without strict definition in various international organizations to refer generally to fishing activities in contravention of national laws or international obligations; those not reported or misreported to national authorities; or those conducted in the area covered by 8 Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its First Meeting, U.N. Doc. A/55/247 (2000), Part B, para. 16. 9 General Assembly resolution 55/8, preambular para. 13. 10 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing, supra note 7, para. 1. 11 Report of the Secretary-General on Oceans and the Law of the Sea, U.N. Doc. A/54/429 and Corr. 1 (1999), paras. 252 and 253.

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a RFO by non-Party vessels or vessels without nationality in a manner not consistent with the conservation and management measures of the RFO. The International Plan of Action on IUU fishing defined the terms “illegal fishing,” “unreported fishing” and “unregulated fishing.”12 The definition is comprehensive and systematic, and in that sense useful. The Plan of Action, however, uses only the term “IUU fishing” throughout the text, and does not deal with the three components separately.13 This paper follows these definitions in referring to illegal, unreported and unregulated fishing, all of which are referred to together as IUU fishing.

12

These terms are defined as follows: “3.1 Illegal fishing refers to activities: 3.1.1 conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations; 3.1.2 conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or 3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization. “3.2 Unreported fishing refers to fishing activities: 3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or 3.2.2 undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization. “3.3 Unregulated fishing refers to fishing activities: 3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or 3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law. “3.4 Notwithstanding paragraph 3.3, certain unregulated fishing may take place in a manner which is not in violation of applicable international law, and may not require the application of measures envisaged under the International Plan of Action.” 13 The European Community considered the definition not entirely correct and stated that it would not recognize the definition as having any force other than in the context of the document. The principal concern of EC was reportedly with the need to elaborate more on the meaning of “unreported” and “unregulated.” See William Edeson, The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, 16 INT’L J. MARINE & COASTAL L. 619 (2001).

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II. IUU Fishing and the U.N. System Organizations The question of IUU fishing has been brought to the global attention at the U.N. General Assembly, FAO and the International Maritime Organization (IMO). Each of these bodies addressed the question with a different focus and angle according to its respective competence. The General Assembly discussed the question from the broad political angle, and made high level political appeals to world leaders. FAO, for its part, tackled the question squarely on its substance and explored concrete measures to combat the highly undesirable fishing practice. IMO attempted to deal with the issue by promoting further control of fishing vessels by their flag States. The action taken by these three bodies will be discussed briefly.

A. The United Nations General Assembly While the General Assembly started to use the term IUU fishing only recently, the question of illegal fishing was first raised formally in its 1994 session. By the time when the LOS Convention entered into force in that year, the provisions relating to the exclusive economic zone (EEZ) had already been considered to have become part of customary international law. Thus a good part of traditional high seas fishing grounds had been incorporated into EEZs placing about 90 per cent of commercial fishery resources under the exclusive jurisdiction of the coastal State. Many coastal States, particularly developing States, soon faced the problem of enforcing their national law in their vastly-expanded waters under their jurisdiction against unauthorized fishing vessels intruding from the high seas or neighboring EEZs. This problem was becoming serious at the beginning of 1990s, and Agenda 21 warned that it was one of the mounting problems that fisheries in EEZ were facing.14 The situation became worse, and the 1994 General Assembly session, on the basis of the draft submitted by the United States, Canada and a number of developing States adopted a resolution entitled “Unauthorized fishing in zones of national jurisdiction and its impact on the living marine resources of the world’s oceans and seas.” This resolution, inter alia, called upon States to take the responsibility “to take measures to ensure that no fishing vessels entitled to fly their national flag fish in zones under the national jurisdiction of other States unless duly authorized by the competent authorities of the coastal State or States concerned.”15 In 1995, the Assembly combined the agenda item of unauthorized fishing with the questions of large-scale drift-net and fisheries by-catch and discards, and adopted a single resolution covering all of these questions, containing an appeal similar to the one quoted above.16 Similar resolutions were repeated in the following two years.17 Resolution 53/33 of 1998, however, added a new ele14

Agenda 21, supra note 2, para. 17.73 U.N. Doc. A/RES/49/116, para. 1. 16 U.N. Doc. A/RES/50/25, para. 3. 17 U.N. Docs. A/RES/51/36, para. 4 and A/RES/52/29, para. 4. 15

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ment relating to the high seas, calling upon States to take measures to ensure that “fishing vessels entitled to fly their flags do not fish on the high seas in contravention of the applicable conservation and management rules.”18 In 1999, for the first time, the General Assembly adopted a resolution making a reference to IUU fishing. Resolution 54/32 of that year thus expressed the concern that “illegal, unregulated and unreported fishing . . . threatens serious depletion of populations of certain fish species,” and urged States to collaborate in efforts to address such types of fishing activities, and in particular to participate in the FAO’s efforts to develop what would subsequently become the International Plan of Action on IUU fishing.19 In 1999, prior to the General Assembly action, a new initiative was taken by the Commission on Sustainable Development (CSD), which conducted in April a comprehensive review of progress achieved in the implementation of Agenda 21 relating to oceans and coasts, including various aspects of fisheries. 20 Among other things, CSD supported the priority given by FAO to develop a global plan of action on IUU fishing.21 It further invited IMO “to develop, as a matter of urgency,” measures to ensure that ships of all flag States meet international rules and standards so as to give full effect to the LOS Convention, especially article 91 (Nationality of ships), and encouraged IMO in cooperation with FAO and U.N. to consider the implications of this request in relation to fishing vessels.22 CSD also emphasized the importance of further development of effective port State control.23 Having examined these recommendations, the General Assembly, in the above-mentioned resolution 54/32, called upon IMO, in cooperation with FAO and other relevant international organizations and States, “to define the concept of the genuine link between the fishing vessel and the State.”24 Resolution 54/32 has thus contained two different requests: first, the encouragement for FAO to develop the action plan on IUU fishing, and second, the request to IMO and FAO, in particular, to study measures that strengthening flag State responsibility by clarifying the concept of “genuine link” and to further develop port State control. The follow-up to these two separate requests will be discussed below under the sections on FAO and IMO, respectively. The question of IUU fishing was then taken up by the newly created UNICPOLOS, which highlighted the significance of these two-track actions within the U.N. System.25 It further stressed the key role played by RFOs in im18

U.N. Doc. A/RES/53/33, para. 7. U.N. Doc. A/RES/54/32, preambular para. 13 and para. 9. 20 See Report on the Seventh Session of the Commission on Sustainable Development, Official Records of the Economic and Social Council, Suppl. No. 9 (E/1999/29) (1999). 21 Id., Decision 7/1 (Oceans and seas), para. 18. 22 Id., paras. 18, 35. Article 91 of the LOS Convention provides that “[t]here must exist a genuine link between the State [whose flag the ship is entitled to fly] and the ship.” 23 Id., para 35. 24 U.N. Doc. A/RES/54/32, para. 8. This request by the Assembly is qualified by the term “in order to assist in the implementation of the [UN Fish Stocks] Agreement,” since the resolution is precisely on that Agreement. 25 Report on the work of the UNICPOLOS, supra note 8, Part A, paras. 9, 12. 19

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plementing international instruments.26 General Assembly resolution 55/7 of 2000 again expressed “serious concern at the increase in [IUU] fishing” and urged States to continue the work at FAO “as a matter of priority.”27 In that context, however, the Assembly, for the first time, recognized “the central role that [RFOs] will have in addressing this issue.”28 The General Assembly repeated and elaborated on most of these points in another resolution of the same year on fisheries.29 In 2001, the Assembly in resolution 56/12 welcomed the adoption earlier that year by FAO of the International Plan of Action, and urged States to take as a matter of priority all necessary steps to implement it effectively.30 In resolution 56/13 on the U.N. Fish Stocks Agreement, it also urged States, as a matter of priority, to coordinate their activities and cooperate in the implementation of the Plan of Action directly and through RFOs.31

B. The Food and Agriculture Organization The question of IUU fishing was raised at FAO for the first time in its Committee on Fisheries (COFI) in February 1999, when the Australian delegation submitted a document stressing the need to develop an international action plan to combat IUU fishing, which had been causing serious problems especially in the CCAMLR area. COFI expressed its concern about the information of increased IUU fishing.32 This was followed up by the FAO Ministerial Meeting on Fisheries held in March. The Meeting adopted a Rome Declaration on Responsible Fisheries, in which the Ministers recorded their will to develop a global plan of action to deal effectively with all forms of IUU fishing including fishing vessels flying “flags of convenience.”33 This intention was supported by the FAO Council later that year, which urged that such a global initiative should be taken by FAO within the framework of the Code of Conduct for Responsible Fisheries.34 As a first step of the preparatory work, FAO cooperated with Australia in organizing an Expert Consultation on IUU Fishing in Sydney in May 2000. The Consultation adopted a Preliminary Draft International Plan of Action to prevent, deter and eliminate IUU fishing. The draft was then submitted as a basis of work to the Technical Consultations held in Rome in October 2000 and January 2001. The final text was then approved at the 2001 session of COFI as the Inter26

Id., para. 16. U.N. Doc. A/RES/55/7, preambular para. 14, para. 24. 28 Id., preambular para. 14, para. 24. 29 U.N. Doc. A/RES/55/8, paras. 10-19. 30 U.N. Doc. A/RES/56/12, para. 34. 31 U.N. Doc. A/56/13, para. 15. 32 Report of the 23rd Session of the Committee on Fisheries, FAO Fisheries Report No. 595, para. 72. 33 Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries, adopted by FAO Ministerial Meeting on Fisheries, March 10-11, 1999, para. 12 (j), available at http://www.fao.org/fi/agreem/ declar/dece.asp (last visited Feb. 19, 2004). 34 FAO, Report of the 116th Session of the Council, para. 30 (1999). 27

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national Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. The document was subsequently adopted at the FAO Council in June 2002. The Plan of Action consists of seven sections. The main substantive section is section IV dealing with Implementation of Measures to Prevent, Deter and Eliminate IUU Fishing. Other sections consist of: Introduction, Nature and Scope of IUU Fishing and the Plan of Action, Objectives and Principles, Special Requirements of Developing Countries, Reporting, and Role of FAO. Regarding the nature of the Plan of Action, it states that the instrument is drafted within the framework of the Code of Conduct. It refers in particular to the Code’s provisions regarding its nature and objectives as well as its relationship with other international instruments (paras. 4 and 5). The Plan of Action is thus voluntary, and to be interpreted and applied in conformity with the relevant rules of international law, as reflected in the LOS Convention. The objective of the Plan of Action is stated to be to prevent, deter and eliminate IUU fishing by providing all States with comprehensive, effective and transparent measures by which to act, including through appropriate RFOs (para. 8). States are called upon to cooperate to support training and capacity building for developing countries, and to consider providing financial, technical and other assistance to them, so that they can more fully meet their commitments under the Plan of Action and obligations under international law (para. 85). As part of the follow-up mechanism, States and RFOs are to report to FAO on progress with implementation as part of their biennial reporting to FAO on the Code of Conduct, and such reports will be published by FAO (para. 87). Section IV sets forth recommended measures to be taken by all States, as well as by flag States, coastal States and port States, internationally agreed market-related measures, cooperation relating to RFOs, and the need for scientific research on methods of identifying fish species from samples of processed products. One important action to be taken by all States is the preparation within three years (i.e., by March 2004) of national plans of action to give full effect to the Plan of Action as an integral part of their fisheries management program and budgets (para. 25).

C. International Maritime Organization When COFI and the FAO Ministerial Meeting on Fisheries discussed the question of IUU fishing in 1999, several delegations complained of the use of FOC fishing vessels flying for such fishing activities. Since the issues relating to reflagging and ship registration fell under the competence of IMO, in particular the Marine Safety Committee and its Sub-Committee on Flag State Implementation (FSI), FAO at the suggestion of COFI brought the issues to the attention of IMO. The Committee, however, reacted rather strongly against this FAO request, and, particularly at the strong demands of Liberia and Panama,35 replied

35

J. Ashley Roach, Substandard Shipping: A New Approach, BIMCO REVIEW 150 (2000). Several flag States which have many so-called “FOC” vessels in their registry,

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that the terminology used was not appropriate and several issues raised by FAO were outside the competence of IMO.36 At the FSI held in January 2000, this question was taken up together with the above-mentioned request made by CSD and U.N. General Assembly resolution 54/32.37 On the recommendation of FSI, it was decided that a joint FAOIMO ad hoc working group on IUU fishing and related matters be set up to examine the matter. The working group, consisting of 14 States and the European Community, was given the task of preparing a checklist of the necessary elements for effective flag State control over a fishing vessel, and reviewing measures that may be taken by a port State in relation to the technical and administrative procedures for the inspection of foreign-flag fishing vessels. It completed its work in October 2000.38 The working group, inter alia, recognized the need to enhance implementation of flag State responsibility and to ensure that the flag State links the registration of a fishing vessel with its authorization to fish. It also stressed the considerable scope of States to introduce domestic legislative measures to deal with foreign fishing vessels entering or leaving their ports, and suggested that a mechanism of international or regional memorandum of understanding (MOU) relating to port State control of fishing vessels could be introduced as a tool for addressing the issue of IUU fishing.39

III. IUU Fishing and Regional Fisheries Organizations or Arrangements Several RFOs are empowered by their founding instruments to take certain political action against non-Parties in order to protect their basic objectives. A typical provision is article 10(1) of the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention),40 which states that the Commission shall draw the attention of any non-Party State to any activity undertaken by its nationals or vessels that, in the opinion of the Commission, affects the implementation of the objectives of the Convention. Similar “attention drawing” clause is contained in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO Convention)41 and the Convenlike Panama, Liberia and the Bahamas, are opposed to the use of “FOC” and call themselves as “open registry States”. The latter is the term being used normally in IMO. 36 David J. Doulman, Illegal, Unreported and Unregulated Fishing: Mandate for an International Plan of Action, Doc. AUS: IUU/2000/4, paras. 27-28, available at http://www.fao.org/DOCREP/005/Y3274E/y3274e06.htm#bm06 (last visited Feb. 19, 2004). 37 See supra note 24 and accompanying text. 38 See Report of the Joint FAO/IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters, Rome, 9-11 October 2000, FAO Fisheries Report No 637. 39 Id., paras. 15, 16, 43. 40 1329 U.N.T.S. 47. 41 Cmnd. 7569, art. 19.

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tion for the Conservation of Southern Bluefin Tuna (CCSBT),42 as well as in the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Doughnut Hole Convention),43 all of which provide that the Parties, not the commissions, agree to do so. Some of these conventions, the CCSBT Convention and the Doughnut Hole Convention, oblige the Parties to cooperate in taking measures, consistent with international law, to deter fishing operations by non-Party nationals or vessels that could adversely affect the attainment of convention objectives.44 On the basis of these provisions, or without any such provision, several RFOs have taken various measures to combat IUU fishing by non-Party vessels. As regards IUU fishing conducted by vessels flying the flags of Parties, most of the commissions have adopted a host of measures under their respective competence conferred by the conventions concerned. The action taken by major RFOs with respect to Parties and non-Parties to the conventions are reviewed below.

A. CCAMLR The term “IUU fishing” was first introduced in CCAMLR in the context of its consideration of overfishing of Patagonian toothfish (Dissostichus eleginoides) and Antarctic toothfish (Dissostichus mawsoni). Toothfish is a long-lived, slowgrowing fish mostly occurring in the deep sea of 200 to 2000 meters, on the continental shelf and slopes around South America and the sub-Antarctic islands, growing to the size of up to two meters.45 They were harvested since the latter half of 1970s, but CCAMLR adopted conservation measures for the first time in 1990, in view partly of the introduction of bottom longlines targeting on toothfish, and set the total allowable catch (TAC) at 2,500 tonnes for the year 1990/91, or less than one third of the catch reported in the previous year.46 Overfishing of toothfish, however, continued to be reported since. In 1994, the CCAMLR’s Standing Committee on Observation and Inspection (SCOI) thus recommended the Commission to express its deep concern regarding the strong indication that large-scale fishing in contravention of the conservation measures in force was taking place in the Convention Area.47 In the 1996 meeting of CCAMLR, attention was drawn to the rapidly increasing high levels of unreported catch of toothfish, with the Scientific Committee estimating that the reported catch from the Convention Area might have comprised only 40 per cent of the total taken.48 The Commission thus expressed 42

Law of the Sea Bulletin, No. 26, p. 57 (1994), art. 15(1). 34 I.L.M. 67 (1995), art. 12(1). 44 CCSBT, art. 15 (4); Donut Hole Convention, art. 12(3). 45 David J. Agnew, The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CAMLR Catch Documentation Scheme, 24 MARINE POL’Y 361 (2000). 46 RICHARD A. HERR, THE INTERNATIONAL REGULATION OF PATAGONIAN TOOTHFISH: CCAMLR AND HIGH SEAS FISHERIES MANAGEMENT 6 (1997). 47 Id. at 9. 48 Id. at 11. 43

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deep concern with the fact that illegal fishing activities had been causing serious problems.49 It is against such background that SCOI, for the first time, added a new item “Illegal, unregulated and unreported fishing in the Convention Area” to the agenda for its 1997 session.50 Discussion in SCOI centered on two areas: possible measures to resolve the problem of unreported and unregulated fishing by non-Parties, and possible measures to resolve the problem of illegal fishing by Parties.51 As a result, SCOI proposed that port State control measures should be strengthened, including the denial of landings and transhipments by non-Party vessels which undermine the effectiveness of the CCAMLR Conservation Measures. It also agreed that in general Parties should be encouraged to inspect vessels which enter their ports in order to determine the origin of the catch and whether they have undermined the CCAMLR measures, and, in case they were found to have done so, to deny the landing of fish and fish products.52 SCOI also recommended that political action be taken with respect to not only those non-Parties whose vessels undermine the effectiveness of the CCAMLR measures, but also those States which provide port facilities to such vessels and thus enable them to continue their operation.53 Upon receipt of these recommendations of SCOI, in September 1997, CCAMLR adopted two important measures, taking into account also the measures just recently introduced by NAFO.54 The first is Conservation Measure 118/XVI (revised in 1998 as Conservation Measure 118/XVII), containing a scheme to promote compliance by non-Party vessels with CCAMLR conservation measures. Under this scheme, a non-Party vessel that has been sighted engaging in fishing activities in the Convention Area is presumed to be undermining the effectiveness of CCAMLR conservation measures. Further, when a nonParty vessel enters a port of any Party, its authorized officials must inspect it and shall not allow to land or tranship any fish until the inspection has taken place. Landing and transhipments of all fish from such vessels shall be prohibited in all ports of the Parties if such inspection reveals that the vessel has on board species subject to CCAMLR Conservation Measures, unless the vessel establishes that the fish were caught outside the Convention Area or in compliance with the relevant Conservation Measures and requirements under the Convention.55 The second is Conservation Measure 119/XVI (revised in 1998 as Conservation Measure 119/XVII), requiring each Party to prohibit fishing by vessels flying its flag in the Convention Area except pursuant to a license or permit that the Party has issued, setting forth specific conditions for fishing. It also specifies that a Party may issue such a license only if it is satisfied with its ability to exer49

Report of the Fifteen Meeting of CCAMLR, Hobart, 21 Oct. - 1 Nov. , 1996, para.

12. 50 Report of the Standing Committee on Observation and Inspection, CCAMLR, (1997), para. 1.2. 51 Id., para. 1.20. 52 Id., paras. 1.30, 1.33. 53 Id., para. 1.31. 54 See infra note 82 and accompanying text. 55 Report of the Seventeenth Meeting of CCAMLR, Hobart, Australia, Oct.26 - Nov. 6 1998, 44-45; Conservation Measure 118/XVII (1998), paras. 1, 4, 5.

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cise its responsibilities under the Convention and CCAMLR’s conservation measures.56 Further, Conservation Measure 146/XVII requires the licensed vessels and gear to be marked in accordance with internationally recognized standards.57 In 1998, again inspired by the 1997 NAFO scheme, CCAMLR adopted Conservation Measure 147/XVII on cooperation between Parties to ensure compliance through port State inspection. Under this scheme, a vessel licensed by a Party shall notify the port State Party 72 hours in advance of arrival, and the port State shall undertake the inspection of the vessel. In case there is evidence of contravention of CCAMLR measures, the port State must inform the flag State, and the two Parties must cooperate to take appropriate steps.58 In another Conservation Measure it adopted, CCAMLR for the first time required that all fishing vessels with license from the Parties install a vessel monitoring system (VMS) on board by the end of 2000.59 These measures would certainly be useful in strengthening the control of IUU fishing by vessels flying Parties’ flags. However, they were not effective in eliminating such fishing practices, for some of those vessels which were conducting such fishing started to reflag their flags to non-Party States so that they might continue their activities in the Convention Area without being legally bound by CCAMLR measures. It also appeared that Conservation Measures 118/XVII and 147/XVII were not effectively implemented in practice, and that VMS was slow to be installed, and in any case was not useful in tracking nonParty vessels, which were most unlikely to have the system on board.60 In order to fill some of these gaps, CCAMLR adopted in 1999 Conservation Measure 170/XVIII (revised in 2000 as 170/XIX), which introduced a new Catch Documentation Scheme (CDS) for toothfish.61 CDS is a trade related measure which had been developed on the basis of the Bluefin Tuna Statistical Document Program adopted earlier by the International Commission for the Conservation of Atlantic Tunas (ICCAT).62 The Scheme was adopted together with a “Policy to enhance cooperation between CCAMLR and non-Contracting Parties.”63 At the same time, Conservation Measure 147/XVII was amended in order to incorporate the CDS. 56

Id. at 45. Conservation Measure 119/XVII (1998), paras. 1, 2. Id. at 46. Conservation Measure 146/XVII (1998). 58 Id. at 46. Conservation Measure 147/XVII (1998). 59 Id. at 47. Conservation Measure 148/XVII (1998). The agreement to introduce compulsory VMS was regarded as a major breakthrough since it had been one of the most contentious issues. Richard Herr, The International Regulation of Patagonian Toothfish: CCAMLR and High Seas Fisheries Management, in GOVERNING HIGH SEAS FISHERIES 320 (Olav S. Stokke ed., 2001). 60 Agnew, supra note 45, at 367. 61 Report of the Eighteenth Meeting of CCAMLR, Hobart, 25 October - 5 November 1999, Annex 6 (Conservation Measure 170/XVIII); Report of the Nineteenth Meeting of CCAMLR, Hobart, October 23 – November 3, 2000, Annex 6 (Conservation Measure 170/XIX) . 62 See infra note 73 and accompanying text. 63 Report of the Eighteenth Meeting of CCAMLR, Hobart 25 October - 5 November1999, Annex 8. 57

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The purpose of the CDS is to take steps to identify the origins of toothfish entering the markets of Parties and to determine whether toothfish harvested in the Convention Area that is imported into their territories was caught in a manner consistent with the CCAMLR conservation measures.64 For this purpose, the CDS imposes on each Party, inter alia, the following obligations: 1. to require that its flag vessels which intend to harvest toothfish, including on the high seas outside the Convention Area, are provided with specific authorization to do so, to provide toothfish catch document forms to each of such vessels, and to require that each of them complete the forms for the catch landed or transhipped on each such occasion; 2. to require that each landing of toothfish at its ports and each transhipment of toothfish to its vessels be accompanied by a completed catch document; 3. to require that each shipment of toothfish imported into its territory be accompanied by the export-validated catch documents that account for all the toothfish contained in the shipment; 4. to ensure that its customs authorities examine the import documentation of each shipment of toothfish imported into its territory to verify that it includes the export-validated catch documents that account for all the toothfish contained in the shipment. The authorities may examine the content of any shipment to verify the information in the document; 5. to provide the CAMLR Convention Secretariat promptly copies of all export-validated catch documents that it issued and received into its territory, and to report annually to the Secretariat data, drawn from catch documents, on the origin and amount of toothfish exported from and imported into its territory.65 The CDS invites non-Parties seeking to cooperate with CCAMLR to participate in the Scheme by issuing toothfish catch document forms to their flag vessels intending to harvest toothfish.66 The toothfish catch document requires detailed information to be filled out, including: the name, address, etc. of the issuing authority; the name, home port, registry number and call sign of the vessel; the weight of each toothfish species landed or transhipped by product type, and the statistical area, in and outside the Convention Area; the dates of catch; the date and the port at which the catch was landed, or the date and the vessel, its flag and national registry number, to which the catch was transhipped; and the name, address, etc. of the recipients of the catch and the amount of each species and product type received.67 The CDS is thus designed to give rather strong power (and impose obligations) to Parties receiving toothfish landings or importing them to verify the origin of the fish. The question remains, however, as to what a Party can do when it finds possible violations of the Scheme or CCAMLR conservation measures. In this respect, CDS merely provides that if a question arises regarding the information contained in a catch document, the Party concerned may call upon the exporting State or the flag State concerned “to cooperate with the im64

Conservation Measure 170/XIX, supra note 61, preambular para. 9. Id., paras. 1-4, 8, 10, 12. 66 Id., preambular para. 11, para. 5. 67 Id., para. 6. 65

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porting State with a view to resolving such question.”68 The importing State therefore has no right to prohibit import of such product unilaterally.69 The above-mentioned Policy to enhance cooperation between CCAMLR and non-Contracting Parties requested the Executive Secretary to develop a list of non-Parties which have been implicated in IUU fishing or trade, and thus have undermined the effectiveness of its conservation measures. It further directed the Chairman of CCAMLR to write to each of the non-Parties, explaining the adverse effects of IUU fishing, encouraging them to become Parties and participate in the CDS, and requesting them to cooperate with CCAMLR measures in various other ways.70 Lastly, recognizing that the vast majority of the IUU fishing in the Convention Area was undertaken by vessels flying the flag of non-Parties, CCAMLR recently adopted a Resolution to urge all Parties to avoid flagging a non-Party vessel or licensing such a vessel to fish in waters under their national jurisdiction, if that particular vessel has a history of engagement in IUU fishing.71

B. ICCAT The trade related measures of CCAMLR are, as mentioned earlier, based on similar measures that had been taken by ICCAT with respect to Atlantic bluefin tuna. There is, however, a significant difference in the situation in which the two bodies operate, and the difference is reflected in the measures taken by each. In the former case, the targeted toothfish occur both in and outside the Convention Area, which makes it possible for a fishing vessel to catch it either in the Area covered by CCAMLR regulations or outside that Area, where its competence obviously does not reach. CCAMLR therefore can take action only against individual shipments rather than all imports from a particular State. On the other hand, ICCAT manages all bluefin tuna in the entire Atlantic Ocean, including the Mediterranean Sea, which enables it to identify and name any non-Party whose flag a vessel catching bluefin tuna flies.72 ICCAT actually has often resorted to such method in taking various measures against non-Parties.

68

Id., para. 11. As observed by STUART M. KAYE, INTERNATIONAL FISHERIES MANAGEMENT 441443 (2001), in the light of the Shrimp Case decision of the WTO Panel, it would be difficult for the CCAMLR Parties to place restrictions on toothfish imports on the basis that the catch was not accompanied by proper documents, since such a measure would potentially restrict the sale of fish by third State vessels fishing legally on the high seas, beyond the reach by any CCAMLR authority. Agnew, who chaired the 1999 ad hoc meeting on CDS, also admits that lessons learnt during the tuna/dolphin and the shrimp/turtle disputes were taken into account so that any restrictions on imports of toothfish to Party territories would be legitimate exceptions to the principle of free trade. Supra note 45, at 369. 70 See supra note 63. 71 Report of the Nineteenth Meeting of CCAMLR, 23 October - 3 November 2000, Annex 6, Resolution 13/XIX. 72 See Agnew, supra note 45, at 368. 69

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With an increase in the number of non-Party vessels catching bluefin tuna, ICCAT started to take a series of measures since 1992. One of the first measures thus taken was the 1992 Bluefin Tuna Statistical Document (BSD) Program, which required that all tuna, when imported into a Party’s territory, be accompanied by a BSD, indicating the location and the flag of the vessel catching the fish, etc. and validated by the flag States. On the basis of the BSD, it adopted in 1994 an Action Plan to Ensure Effectiveness of the Conservation Program for Atlantic Bluefin Tuna.73 The Action Plan directed the permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures to identify annually those non-Parties whose vessels have been fishing for bluefin tuna in a manner that diminishes the effectiveness of ICCAT conservation measures. The Commission also decided that the Parties take non-discriminatory trade restrictive measures on bluefin tuna products in any form from such nonParties. In 1995, the Commission identified that Belize, Honduras and Panama had vessels that were fishing in a manner that diminished the effectiveness of ICCAT conservation measures. Then, in the following year, the Commission took decisions to prohibit imports by Parties of bluefin tuna and its products from Belize and Honduras from 1997 and from Panama from 1998.74 This was a significant, first measure that a RFO took a drastic action to impose a trade ban against specific States whose vessels were exercising freedom of high seas fishing but not cooperating with conservation and management measures of that body. Such a measure, however, would not be effective if fishing vessels tranship their catches at sea in secrecy. ICCAT thus adopted a decision in 1997 requiring Parties to ensure that vessels flying their flag receive at-sea transhipment of ICCAT-managed species from Parties and Cooperative Parties75 only. The same decision further provides that sighting of a Party’s or a non-Party’s vessel that “may be fishing contrary to ICCAT conservation measures” must be reported to the flag State’s authorities concerned and the Secretariat. Where there are reasonable grounds for suspecting that a stateless ship is targeting ICCAT species, any Party may board and inspect the vessel and take appropriate action in accordance with international law.76 Specifically with regard to non-Party vessels, ICCAT further adopted the following decision of presumption of involvement in IUU fishing in 1998, which is similar to the ones taken by NAFO and CCAMLR in the preceding year: 73 ICCAT, Report for Biennial Period, 1994-1995, Part. I, at 91 (1995). A similar action plan was adopted in 1995 also for Atlantic swordfish. 74 ICCAT, Compendium of Management Recommendations and Resolutions adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like Species, 96-11, 96-12. 75 “Cooperating Parties” are non-Parties that do not hold ICCAT membership but voluntarily fish in conformity with the conservation decisions of ICCAT. They may attend ICCAT meetings as observers. All non-Parties are urged by ICCAT to become Cooperative Parties. 76 Recommendation on Transhipments and Vessel Sightings, adopted at the Fifteenth Meeting, November 1997, in ICCAT, supra note 74, 97-11.

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1.

A non-Party vessel sighted in the Convention Area which may be fishing contrary to ICCAT conservation measures is presumed to be undermining ICCAT conservation measures; 2. When such non-Party vessel enters voluntarily a port of a Party, it shall be inspected by the Party’s officials, and no landing or transhipment is allowed until the inspection takes place; 3. Landings and transhipments from such vessel shall be prohibited in all ports of the Parties if such inspection reveals that the vessel has on board species subject to ICCAT conservation measures, unless the vessel proves otherwise.77 Despite these measures, it has not been possible for ICCAT to effectively control long-line tuna vessels engaged in IUU fishing. The overall picture of IUU fishing appears to have even worsened in recent years. One of the causes for such trend is the increased cases of reflagging of fishing vessels that had been flying the flags of non-Parties to Parties. One of such Parties was found to be Equatorial Guinea, which had no quota allocated from ICCAT for three year beginning 1997. Upon discovering “significant exports” of bluefin tuna for these years from Equatorial Guinea, the Commission adopted a complete ban on all imports of bluefin tuna and its products from that country.78 Furthermore, similar concern remained after Panama became a Party in late 1998. The Commission, in a resolution adopted in 1999, thus expressed concern that IUU fishing by large scale long line vessels activities in the Convention Area had increased, and that many of them were shifting their flags to Parties, and called upon Parties and Cooperating Parties to ensure that their vessels do not carry out IUU fishing, to take every action to urge their importers and other business people to refrain from transaction of tunas caught by IUU vessels, and to urge their manufacturers and other business people to prevent their vessels and equipments from being used for IUU fishing.79 At its 2000 Meeting, ICCAT adopted a decision to require all Parties to submit annually the list of their vessels that are licensed to fish for tunas in the Convention Area to the Secretariat, which is to circulate it periodically. On the basis of the list, it further requires the Parties to notify any information concerning fishing vessels that are not listed and believed to be fishing for tunas in the Area, and the Executive Secretary is to request the flag States concerned to take necessary measures to prevent the vessel from fishing.80

77 Recommendation concerning the Ban on Landings and Transhipments of Vessels from Non-Contracting Parties Identified as Having Committed a Serious Infringement, adopted at the Eleventh Special Meeting, 16-23 November 1998, id., 98-11. 78 Recommendation regarding Equatorial Guinea Pursuant to the 1996 Recommendation regarding Compliance in the Bluefin Tuna and North Atlantic Swordfish Fisheries, adopted at the Sixteenth Meeting, 15-22 November 1999, id., 99-10. 79 Resolution Calling for Further Action against Illegal, Unregulated and Unreported Fishing Activities by Large Scale Longline Vessels in the Convention Area and Other Areas, adopted at the Sixteenth Meeting, 15-22 November 1999, id., 99-11. 80 Recommendation concerning Registration and Exchange of Information of Fishing Vessels Fishing for Tuna and Tuna-like Species in the Convention Area, id., 00-17.

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C. NAFO NAFO is a RFO covering the Northwest Atlantic Ocean roughly north of 35ºN latitude and west of 42ºW longitude. The Regulatory Area is the high seas, beyond the areas under national jurisdiction of the coastal States, where NAFO regulates all fishery resources except salmon, cetaceans and tunas which are managed by other bodies. Several groundfish straddling stocks in NAFO waters have declined seriously, particularly since the beginning of 1990s. Both Canada and NAFO, for its 200 mile zone under national jurisdiction and the Regulatory Area, respectively, adopted moratoria on directed fishing of several of these stocks. Major problems in this area since mid-1980s were the disagreement between Canada and the European Community (EC) over the quota allocation decided by NAFO and more recent Canadian interest in extending its jurisdiction over straddling stocks beyond the Canadian 200 mile zone, particularly in the Grand Banks area, an important fishing ground off Newfoundland. The latter involved the problem of IUU fishing conducted by vessels of non-NAFO members, including several FOC States. Canada applied its Coastal Fisheries Protection Act to such vessels including those on the high seas which fish for straddling stocks in contravention of NAFO measures. Prompted by these Canadian actions, and encouraged by the adoption of the 1995 U.N. Fish Stocks Agreement,81 NAFO adopted a Scheme to Promote Compliance by Non-Contracting Party Vessels with the Conservation and Enforcement Measures established by NAFO in 1997.82 The key provisions of the Scheme, which would subsequently become the basis for the above-mentioned 1998 ICCAT Recommendation, are as follows: 1. A non-Party vessel which has been sighted engaging in fishing activities in the NAFO Regulatory Area is presumed to be undermining the effectiveness of NAFO Conservation and Enforcement Measures (para. 5). 2. Information regarding such sightings shall be transmitted to the Secretariat, which shall disseminate it to all Parties and notify the flag State of the sighted vessel (para. 6). 3. When such non-Party vessel enters a port of any Party, it shall be inspected by authorized Party officials, and shall not land or tranship any fish until the inspection has taken place (para. 9). 4. Landings and transhipments of all fish from the non-Party vessel so inspected shall be prohibited in all Party ports, if such inspection reveals that the vessel has on board species on the lists of prohibited species or those under conservation and enforcement measures, unless the vessel establishes 81 Bob Applebaum, a leading member of the Canadian delegation to the Conference elaborating the Fish Stocks Agreement, states that the NAFO Scheme was spurred on by article 17 (Non-members of organizations and non-participants in arrangements) of that Agreement. Bob Applebaum and Amos Donohue, The Role of Regional Fisheries Management Organization, in DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW 247 (Ellen Hey ed., 1999). 82 Adopted at NAFO’s Nineteenth Annual Meeting, 15-19 September 1997. NAFO/GC Doc 97/6.

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that the prohibited fish were caught outside the NAFO Regulatory Area or that it had applied the NAFO Conservation and Enforcement Measure for the other species (para. 10). NAFO took further action against IUU fishing in 1999. The Parties agreed that any vessel sighted in the Regulatory Area that they have reasonable grounds to believe is without nationality will be regarded as a non-Party vessel for the purpose of implementing the Scheme. They may also board and inspect the vessel and, if warranted, take such further action as may be appropriate under international law.83

D. NEAFC The area of competence of the Northeast Atlantic Fisheries Commission (NEAFC) is roughly the Northeast Atlantic east of the area covered by NAFO, and it deals with all fishery resources with exceptions similar to those of NAFO. About a year after NAFO adopted the Scheme to Promote Compliance by NonContracting Party Vessels, NEAFC introduced in 1998 a similar measure incorporating main provisions of that scheme.84 The NEAFC Scheme to Promote Compliance by Non-Contracting Party Vessels, however, goes further than the NAFO Scheme particularly by including provisions on transhipments. Under the NEAFC Scheme, in case a sighted non-Party vessel is involved in any transhipment activities inside or outside the Regulatory Area, the presumption of undermining the effectiveness of NEAFC measures applies to any other non-Party vessel that has been engaged in such activities with that vessel.85 NEAFC also adopted in 1998 a “Scheme of Control and Enforcement in respect of Fishing Vessels in Areas beyond the Limits of National Fisheries Jurisdiction in the Convention Area.”86 This is a comprehensive and detailed document for regulating all fishing activities on the high seas areas in the Convention Area. Among others, it provides for the obligation of the Parties not to authorize its vessels to fish except where it is able to exercise effectively its responsibilities in respect of such vessels, to establish an authorization system to fish and annually notify the Secretary all vessels so authorized, to ensure that its fishing vessels and gear be marked in accordance with international standards, to install VTS by the beginning of 2000 on all large fishing vessels, to notify prior to the entry into the Regulatory Area, etc. These provisions are drafted clearly taking into account the recently-adopted Compliance Agreement and the U.N. Fish Stocks Agreement. It is also significant as introducing the first control and en83

Report by NAFO to FAO on December 2, 1999, reproduced in Kevin Bray, A Global Review of Illegal, Unreported and Unregulated (IUU) Fishing, Doc. AUS: IUU/2000/6, para. 104, available at http://www.fao.org/DOCREP/005/Y3274E/ y3274e08.htm#bm08 (Last visited Feb. 19, 2004). 84 NEAFC, Summary Report of the Seventeenth Annual Meeting, 17-20 November 1998, Annex F (Recommendation for a Scheme to Promote Compliance by nonContracting Party Vessels with Recommendations established by NEAFC). 85 Id., para. 4. 86 Adopted on Nov. 20, 1998, and entered into force on July 1, 1999, available at http://www.neafc.org (Last visited Feb. 19, 2004).

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forcement system based on satellite tracking and the use of automatic data transmission methods. In a further development, NEAFC set up a Standing Committee for Control and Enforcement in 2000 to discuss practical implementation of the Scheme.87

E. IOTC The Indian Ocean Tuna Commission (IOTC) started its operation in 1996 for the conservation and management of tunas in the Indian Ocean and adjacent seas. At the 1998 session, it adopted a Recommendation concerning Registration and Exchange of Information on Vessels, including Flag of Convenience Vessels, Fishing for Tropical Tunas in the IOTC Area of Competence,88 requiring Parties to submit annually to the Secretariat various data on their flag vessels fishing for tropical tunas, as well as information on other fishing vessels known or presumed to be fishing for tropical tunas, in the Convention Area. It further requires Parties that issue licenses to foreign flag vessels to fish for tropical tuna in the Area to submit the same information, and the Secretary is asked to request such flag State to take the measures necessary to prevent fishing. At the 1999 session, concern was expressed that large-scale FOC vessels had increased and diminishing the effectiveness of IOTC conservation and management measures. It thus adopted a Resolution Calling for Action against Fishing Activities by Large Scale Flags of Convenience Longline Vessels. 89 It called upon Parties and cooperating non-Parties, inter alia: 1. to ensure that vessels under their registry do not engage in IUU activities; 2. to refuse port access to FOC vessels which are engaged in IUU activities; 3. to take every possible action to urge importers, transporters, etc. to refrain from transacting in and transhipping tunas caught by FOC vessels, and to urge business people to prevent their vessels from being used for FOC operations. In the same resolution, the Commission further urged States and entities concerned with FOC vessels to repatriate or scrap such vessels, and in particular urged Japan to scrap vessels built in Japan and being used for FOC activities. 90

87 NEAFC, Nineteenth Annual Meeting, 21-24 November 2000: Summary Report of the Meeting, item 10 (ii). 88 IOTC, Report of the Third Session, 9-12 September 1998, Appendix L. 89 IOTC, Report of the Fourth Session, 15-16 December 1999. Appendix IX (Resolution 99/02). 90 This appeal was adopted because of the fact that the majority of FOC longline vessels being used had been build in Japan and subsequently purchased by shipowners in Taiwan, together with the fact that the tunas caught by such vessels were mainly for the Japanese market. This appeal was adopted also in view of the progress in the industry level talks between Japan and Taiwan for the buying back of some of such vessels with a view to scrapping in Japan.

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F. CCSBT CSBT is responsible for managing southern bluefin tuna (SBT) throughout their migratory range, i.e., the southern part of the Indian Ocean, the South Pacific and part of the Southern Atlantic. In its 2000 Meeting, CCSBT introduced the Southern Bluefin Tuna Statistical Document Program modeled on the ICCAT’s BSD Program.91 It requires all SBT being imported into the territory of a CCSBT Convention Party be accompanied by a Southern Bluefin Tuna Statistical Document, with no waiver permitted, in conformity with the standard form and other prescribed requirements. The Document must be validated in principle by an official of the flag State of the vessel that harvested the tuna. The Document shall be retained by the importing Member, and a copy must be sent quarterly to the Executive Secretary, who is to publish annually all information thus received. The exporting State then checks its records against the published information, and reports the results to the Secretariat. The same procedure is followed for re-export of SBT imported in conformity with the Program. CCSBT further adopted, at the same Meeting, an Action Plan,92 which was intended to address the operations of non-Parties and vessels that were undermining the Commission’s conservation and management measures. Through the Action Plan, the Commission requested non-Parties catching SBT to cooperate fully with it in implementing the conservation and management measures. The Commission also resolved to identify, by the following annual session, and then at each subsequent annual meeting, those non-Parties whose vessels have been catching SBT in a manner that diminishes the effectiveness of CCSBT measures. The Chair of the Commission then requests such non-Parties to cooperate fully with the Commission in implementing the CCSBT measures. Finally, the Commission “may decide to impose trade restrictive measures” on SBT products, in any form, from the non-Parties which have not rectified their fishing activities. On the basis of the Action Plan, CCSBT identified at its 2001 Meeting Cambodia, Equatorial Guinea, Honduras and Belize as non-Members whose vessels had been catching SBT in a manner that diminished the effectiveness of the CCSBT measures. It agreed that no trade action would be taken at that stage, but that their actions would continue to be monitored.93

G. Other Regional Fisheries Organizations or Arrangements The three most recently-adopted RFO agreements, none of which is yet in force, contain provisions regarding action that could be taken by the Parties to deal with IUU fishing. Thus, the Framework Agreement for the Conservation of the

91

CCSBT, Report of the Sixth Annual Meeting (Second Part), 21-23 March 2000, Attachment J. 92 Id., Attachment I. 93 CCSBT, Report of the Seventh Annual Meeting, 18-21 April 2001, para. 26.

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Fisheries Resources on the High Seas of the South-Eastern Pacific94 (the Galapagos Agreement), adopted in August 2000, requires the Parties to consult on the most effective means for preventing IUU fishing, including transhipments made to evade complying with conservation measures, whether by vessels under their flag or by vessels flying FOC or those operating without flags (art. 8(3)). The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean95 (Honolulu Convention), adopted in September 2000, has more detailed provisions based on the U.N. Fish Stocks Agreement, including the duties of the flag State, port State control, transhipment, and provisions relating to non-Parties. With regard to flag State duties, the Convention contains the requirements of: fishing authorization in order to fish in the Convention Area, permitting such authorization only where the vessel can effectively exercise its responsibilities; maintaining a record of fishing vessels entitled to its flag; periodical reporting to the Commission on such records, etc. (art. 24). The provisions relating to port State control closely follow those of the Fish Stocks Agreement. The Honolulu Convention, however, has laid down certain rules on transhipment at sea, while encouraging Parties to conduct such operation, to the extent practicable, at port (art. 29). With regard to non-Parties, the Parties (and other entities that become member of the Commission to be established under the Convention) are required to exchange information on activities of fishing vessels flying the flags of nonParties operating in the Convention Area (art. 32(2)). The Commission shall draw the attention of any non-Party to any activity undertaken by its nationals or vessels which affects the implementation of the Convention’s objectives (art. 32(3)). Each Party also must take appropriate measures, consistent with international law, to deter the activities of such vessels which undermine the effectiveness of the conservation and management measures to be adopted by the Commission (art. 32(1)). Moreover, the Parties conducting port State control are empowered to prohibit landings and transhipments where it has been established that the catch has been taken in such a manner (art. 27(3)). Lastly, the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean96 (the SEAFO Convention), adopted in April 2001, follows approach similar to the Honolulu Convention’s. However, the action to be taken by Parties to deter fishing activities of non-Parties is not obligatory but voluntary (art. 22 (3)). On the other hand, the provisions on port State control is stronger than the Honolulu Convention in that each Party is obliged to adopt regulations to prohibit landings and transhipments by non-Party vessels where it has been established that the catch has been taken in a manner that undermines the effectiveness of the SEAFO measures (art. 15 (3)). 94

Comisión Permanente del Pacífico Sur, Acuerdo Marco para la Conservación de los Recursos Vivos Marinos en la Alta Mar del Pacífico Sudeste, Santiago, 14 agosto 2000. 95 40 I.L.M. 278 (2001). 96 17 INT’L J. MARINE & COASTAL L. 50 (2002); see also NEW DIRECTIONS IN THE LAW OF THE SEA: REGIONAL AND NATIONAL DEVELOPMENTS ‘XI, 6.a(13) (Roy Lee & Moritaka Hayashi eds., 1995).

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IV. An Assessment of RFO Action Against IUU Fishing As we have seen, the international community has adopted several global instruments that are relevant to dealing with IUU issues. Among them, the most important treaty, which is almost universally accepted and may be regarded as reflecting general international law, is the LOS Convention. Other instruments include the FAO Compliance Agreement, the U.N. Fish Stocks Agreement, the Code of Conduct for Responsible Fisheries and the International Plan of Action on IUU fishing. These four instruments were adopted after careful negotiations at the world’s most appropriate forums for their subjects, and thus may be regarded as reflecting the standards that the international community considers generally desirable. One important question is therefore to what extent States have accepted these provisions. One easy answer to this question is to see how many States have ratified the Agreements,97 and how many have taken measures to implement the Code and the Action Plan. Another way is to see to what extent such provisions have been incorporated in the measures States have adopted within the framework of RFOs. From a practical point of view, it would be far more effective to secure the agreement of a group of States directly concerned with RFOs on certain concrete measures than to secure the ratification of global instruments by a large number of States mostly for symbolic or solidarity purposes. It would therefore be useful to evaluate the measures taken by RFOs with respect to several key issues that have emerged in the previous section in the light of the general principles or standards established by these global instruments, except the Plan of Action on IUU fishing. This exception may be warranted because of the fact that the substantive part of the Plan of Action was drafted taking into account the emerging practice of States and relevant RFOs. The Plan of Action, however, is useful for States and RFOs which have not adopted measures to confirm the inventory of available and desirable measures. The key emerging issues may be grouped under three categories: flag State responsibility, port State control, and trade or market related measures.

A. Flag State Responsibility According to the law of the sea as reflected in the LOS Convention, every ship including fishing vessel on the high seas is subject, in principle, to the exclusive jurisdiction of the State whose flag it flies.98 And the flag State is obliged to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, and for this purpose it must maintain a register of ships.99 With particular reference to fishing vessels, further detailed flag State obligations are provided for in the FAO Compliance Agreement and the U.N. Fish 97

See supra notes 3, 4. LOS Convention, art. 92(1). 99 Id., art. 94(1) and (2)(a). 98

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Stocks Agreement, though strictly speaking only for the Parties to these Agreements. While the latter applies to fisheries for straddling stocks and highly migratory stocks only, the former applies generally to all fishing vessels. Both apply only to fishing vessels on the high seas. According to these Agreements, the flag State shall take measures to ensure that its flag vessels do not engage in any activity that undermines the effectiveness of international conservation and management measures.100 No flag State shall be allowed to authorize any of its fishing vessels to be used for fishing on the high seas unless it is able to exercise effectively its responsibilities with respect of such vessels.101 No flag State may allow its vessels to be used for fishing on the high seas unless it has been authorized to be so used by its appropriate authority.102 The flag State also has to maintain a record of fishing vessels entitled to fly its flag and authorized to be used for fishing on the high seas,103 and to ensure that the vessels and gear are marked in such a way that they can be readily identified in accordance with generally accepted standards.104 As we have seen, there is an encouraging trend among some RFOs for accepting most of these requirements, as illustrated by the measures adopted by CCAMLR, ICCAT and NEAFC. They have also been incorporated in the basic agreement itself in the cases of the Honolulu and SEAFO Conventions. With regard to one of the requirements, i.e., the establishment of a national record or register of high seas fishing vessels, several RFOs, including ICCAT, NEAFC and IOTC, require Parties to notify all fishing vessels authorized to fish for the stocks concerned to the Secretariat, though the establishment of a national register is not specifically required. Major high seas fishing States, however, have already such registers and several of them have been providing the information for inclusion in the FAO database.105 The Compliance Agreement also provides that no State shall authorize, in principle, for fishing on the high seas any fishing vessel previously registered with another State that had undermined the effectiveness of international conservation and management measures.106 Although it deals with the authorization to fish, the actual intention of this provision is to restrict the freedom for those vessels which have been banned from a flag State to keep seeking new flag

100

The Compliance Agreement, art. 3(1)(a); the Fish Stocks Agreement, art. 18(1). The Compliance Agreement, art. 3(3); the Fish Stocks Agreement, art. 18(2). 102 The Compliance Agreement, art. 3(2). See also the Fish Stocks Agreement, art. 18(3)(b)(ii). 103 The Compliance Agreement, art. 4; the Fish Stocks Agreement, art. 18(3)(c). 104 The Compliance Agreement, art. 3(6); the Fish Stocks Agreement, art. 18(3)(d). 105 In support of the Compliance Agreement, even before its entry into force, FAO has established a database system on high seas vessels, in which information on more than 3200 licensed vessels from Canada, Japan, Norway and the USA are included. Serge M. Garcia and Rolf Willmann, Status and Issues in Marine Capture Fisheries: A Global Perspective, at 12, paper presented at the Global Conference: Oceans and Coasts at Rio + 10, UNESCO, Paris, Dec. 3-7, 2001. 106 The Compliance Agreement, art. 3(5)(a) and (b). 101

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States that are willing to register them.107 One of the most difficult problems in combating IUU fishing is precisely such reflagging, relying heavily on FOC registries, and in particular the “flag-hopping”108 practice. Despite the requirement in the LOS Convention that there must exist a genuine link between the State and the ship (art. 91 (1)), which was originally incorporated in the 1958 Geneva Convention on the High Seas (art. 5(1)), and despite repeated attempts to clarify its meaning by various international forums, no agreement has been reached on exactly what the requirements of such link mean. As a result, the term has been interpreted in a flexible manner, and some flag States, particularly FOC States, have little intention to respect the requirement.109 The abovementioned provisions of the Compliance Agreement attempt to prevent reflagging on the basis of rights and obligations relating to high seas fishing activities, thus avoiding addressing the question directly through vessel registration requirements. Most of the general obligations of flag States mentioned above are repeated in the Code of Conduct (art. 8.2). It appears from the survey of RFO measures that few of them have implemented these provisions in practice. One exception is CCAMLR, which urged its Parties to avoid flagging a non-Party vessel “if that particular vessel has a history of engagement in IUU fishing in the Convention Area.” This is, however, much weaker than the above-quoted mandatory provision of the Compliance Agreement. In case of ICCAT, which has been suffering from fishing by a number of vessels reflagged to its Parties, the only kind of measure the Commission has taken so far is to impose trade sanctions on the Parties concerned, with no action regarding the reflagging issue. The conclusion is inevitable, therefore, that much remains to be done by RFOs on the question of reflagging. Although this is the problem for all flag States, RFOs should consider seriously new means for dealing with the issue at the regional level. One difficulty appears to be the fact that the function of registration of a vessel and issuing of an authorization to fish are separate in many countries. In this regard, following a recommendation in the International Plan of Action on IUU fishing, RFOs should encourage their members to make further efforts to coordinate these two functions in a manner that each gives appropriate consideration to the other, and ensure appropriate links between the operation of their vessel registers and the record of their fishing vessels. 110 They should also develop as much as possible uniform action and standards for flag

107

Gerald Moore, The FAO Compliance Agreement, in CURRENT FISHERIES ISSUES FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS 80 (Myron Nordquist & John N. Moore eds., 2000). 108 “Flag hopping” is described in the International Plan of Action on IUU fishing as “the practice of repeated and rapid changes of a vessel’s flag for the purposes of circumventing conservation and management measures or provisions adopted at a national, regional or global level or of facilitating non-compliance with such measures or provisions. (para. 39). 109 See Moritaka Hayashi, Towards the Elimination of Substandard Shipping: The Report of the International Commission on Shipping, 16 INT’L J. MARINE & COASTAL L. 507 (2001). 110 See International Plan of Action on IUU fishing, supra note 7, para. 40.

AND THE

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States to avoid creating incentives for vessel owners to reflag their vessels to other States.111

B. Port State Control Under the LOS Convention, when a vessel enters voluntarily a port or comes to an offshore terminal, the port State concerned may undertake investigations with respect to any illegal discharge from that vessel on the high seas (art. 218(1)). A proposal for a similar port State control of fishing vessels with respect to fishing regulations was not agreed upon during the negotiations of the Compliance Agreement. The Agreement merely provides that the port State shall notify the flag State when a vessel at its port is suspected of having been engaged in an activity that undermines the effectiveness of international conservation and management measures, and that the two States may cooperate in taking necessary investigatory measures (art. 5). The U.N. Fish Stocks Agreement has adopted a set of provisions under which the port State may inspect documents, fishing gear and catch on board fishing vessels, and may adopt regulations empowering the national authorities to prohibit landings and transhipments where it has been established that the catch has been taken in a manner that undermines the effectiveness of international conservation and management measures (art. 23(2) and (3)). Several RFOs have followed these Fish Stocks Agreement provisions, but the emerging trend is to establish more detailed and stronger rules. For example, CCAMLR and NAFO require a licensed fishing vessel to notify the port State 72 hours in advance of arrival and to be inspected once in port. With regard to non-Party vessels, CCAMLR, ICCAT, NAFO and NEAFC have established a system of presumption of having been involved in IUU fishing for any vessel sighted engaging in fishing activities (contrary to the conservation and management measures) in the convention area concerned, and when that vessel enters a port of a Party, the latter must inspect it and not allow it to land or tranship any fish until the inspection has been conducted. If such vessels are found to have on board species subject to the RFOs measures, their landings and transhipments will be prohibited in all ports of the Parties. In the case of IOTC, the Parties are required to refuse port access to any FOC vessel that have been engaged in IUU fishing activities. The SEAFO Convention also obliges the Parties to inspect documents, gear and catch on board of any vessel at port, and to adopt regulations to prohibit landings and transhipments by non-Party vessels where it is established that they have been involved in IUU fishing. Thus the general trend on port State control by Members of RFOs is to go beyond the provisions of the global agreements. The International Plan of Action, reflecting such trends but going even further, provides that prior to allowing a vessel port access, the port State should require it to provide reasonable advance notice of their entry into port, a copy of their authorization to fish, details of their fishing trip and quantities of fish on board, etc. in order to ascertain

111

See id., para. 38.

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whether the vessel may have been engaged in, or supported, IUU fishing.112 It encourages the wider use by RFOs of the system of presumption of involvement in IUU fishing.113 Another recommendation in the International Plan, which has not been adopted in practice, is the establishment of a port State control system under which Members of a RFO cooperate to develop compatible measures for port State measures.114 Such a system could draw many lessons from the existing Memoranda of Understanding (MOU) on Port State Control, particularly the Paris MOU, and the U.S. Coast Guard PSC system.115 MOUs of this kind have been concluded in several regions, but fishing vessels are excluded in most cases. In very rare cases where fishing vessels are also covered, inspections are conducted only when they are suspected of violation of safety or environmental regulations. Once RFOs have developed MOUs, it would then be desirable to establish eventually a coordination mechanism among port State control systems, since IUU fishing vessels move easily from one convention area to another.

C. Trade or Market Related Measures No provision is found in the LOS Convention nor the Compliance Agreement and the Fish Stocks Agreement on trade or market related measures. The only document prior to the International Plan of Action on IUU fishing that had a set of general guidelines was the Code of Conduct for Responsible Fisheries. As a basic principle, it provides that States should further liberalize trade in fish and fishery products and eliminate barriers and distortions to trade in accordance with the principles, rights and obligations of the WTO Agreement (art. 11.2.5). On the other hand, trade measures relating to fish may be adopted by States to protect human or animal life of health, the interests of consumers or the environment on the condition that they should not be discriminatory and should be in accordance with internationally agreed trade rules (art. 11.2.4). In particular, such measures must be consistent with the relevant provisions of the GATT 1994. RFOs have so far taken initiatives in adopting four types of trade or market related measures in combating IUU fishing. The first is the import ban to be decided by RFOs. This was actually put into practice first by ICCAT against all tuna and tuna products from three non-Parties under the Action Plan for Atlantic Bluefin Tuna. Another measure was adopted also against the imports from a 112

Id., para. 55. Id., para. 63. 114 Id., para. 62. 115 A joint FAO/IMO working group, which met in October 2000, considered that such MOU mechanism relating to port State control of fishing vessels could be used as an important and effective tool for enhancing fisheries management and for addressing the issue of IUU fishing. See Report of the Joint FAO/IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters, Rome, 9-11 October 2000, FAO Doc. FIIT/R637, para 43. For a concise description of the current situation of MOUs and their possible improvement, see Hayashi, supra note 109, at 508-10. 113

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Party to ICCAT. More recently, similar a Action Plan was adopted by CCSBT, which could be invoked for imposing trade bans in the future. The second type is the scheme to promote compliance by non-Party vessels with their conservation and management measures, adopted by CCAMLR, NAFO, ICCAT and NEAFC. The main feature of these schemes is presumption of guilt combined with port inspection, whereby a non-Party fishing vessel sighted engaging in fishing activities in the convention areas is presumed to be undermining the effectiveness of those measures and, upon inspection at port, the landings and transhipments of fish caught by the vessel could be prohibited. The third type is the adoption of catch documentation and certification system for identifying the origin of each catch that enters the market with a view to excluding those harvested by IUU fishing. Such a system was adopted by ICCAT, CCAMLR and CCSBT. Non-Parties are also invited to participate in the system on voluntary basis. A fourth type of trade or market related measure was adopted by ICCAT and IOTC specifically targeted at large scale longline vessels engaged in IUU fishing. Under this voluntary measure, the Parties are called upon to urge their importers, transporters and other business people to refrain from engaging in transaction of tunas caught by IUU vessels, and urge the general public not to buy fish caught by them. All these types of trade or market related measures are generally endorsed in the International Plan of Action, which elaborates some of them in more detail. The Plan however gives also caution in applying such measures. It stresses that such measures should be WTO-consistent, and should only be used in exceptional circumstances, and only after prior consultation with interested States.116 They should also be adopted in a fair, transparent and nondiscriminatory manner.117 It may be too early to assess the effectiveness of these measures, but if implemented consistently and adopted more widely, they should be effective in considerably reducing products from IUU fishing from the market. In order to achieve this goal, however, it is important for all concerned States to conduct widespread campaign among all industry and business people involved, consumers and the general public to be aware of the adverse effects of IUU fishing and to actively cooperate in efforts to deter all related transactions and marketing.118

V. Conclusions Despite global and regional efforts, and particularly those by RFOs and their members, IUU fishing has continued and in some areas even increased. Many of the stronger measures to combat IUU fishing were introduced only in the last few years and it may need some more time to produce concrete results.

116

International Plan of Action on IUU fishing, para. 66. Id., para. 69. 118 See id., paras. 73, 74. 117

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This paper has discussed various regional responses to IUU fishing, with main focus on three areas that are considered most effective, i.e., flag State responsibilities, port State control and trade or market related measures. All the measures currently employed should be continued and implemented in a more effective manner. This does not mean, however, that other types of action may be excluded. Every available means should be utilized and strengthened. At the same time some new ideas should also be explored. Existing and possible new means include improved monitoring, control an surveillance (MCS), better regulation or total ban of at-sea transhipments, closer cooperation among RFOs and the establishment of a comprehensive global database on high seas fishing vessels open to all. The improvement in MCS is an ongoing activity for many flag States and RFOs, with major obstacle being the high cost involved. It appears that the wider adoption of VMS system is a most promising way in this respect. Regulation of at-sea transhipment is extremely difficult to enforce. However, such transhipment is precisely one of the convenient ways of evading MCS activities and port State control, as well as trade related measures. Current measures taken by some individual RFOs have obvious constraints in geographical coverage. To be truly effective, world-wide cooperation in enforcing in all high seas areas by as many authorities as possible is essential. It is suggested therefore that the merit of drafting of a new global instrument should be studied. As regards closer cooperation among RFOs, some useful starting was made in 1999, when a meeting of the tuna commission secretariats was held with participation from CCSBT, ICCAT, IOTC, the Inter-American Tropical Tuna Commission (IATTC) and the Secretariat of the Pacific Community (SPC). The meeting decided that each commission should identify licensing requirements for tuna fishing vessels and establish a registry of such vessels active in their area of competence, and that the commissions exchange information in the registries and FAO, to facilitate tracking of vessels moving between oceans. 119 Such cooperative activities among tuna management bodies would certainly be valuable and should be expanded. In addition, it would be desirable to establish similar cooperative mechanism among other RFOs as well. Since the biennial meeting of FBOs at FAO has been regularized recently, that forum could be a utilized to discuss the ways and means for strengthening inter-regional cooperation in combating IUU fishing. Lastly, with regard to the information on high seas fishing vessels, FAO has developed the High Seas Vessel Authorization Database,120 still with data from four countries only. This is being developed for test purposes in anticipation of the entry into force of the Compliance Agreement, which requires Parties to submit to FAO certain basic information with respect to each fishing vessel registered with them (art. 6(1)). This database might appear to be a useful tool for combating IUU fishing. However, its usefulness is likely to be limited since 119

Bray, supra note 83, para. 155. See supra note 105; See also Richard Grainger, High Seas Fishing Vessel Database, in CURRENT FISHERIES ISSUES AND THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS 80, supra note 107, at 93. 120

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even upon entry into force of the Agreement, the obligation to provide such data is limited to the Parties only. Many flag States that are known to have vessels with history of IUU fishing are not likely to become Party. Furthermore, while the Agreement requires a Party to report also all relevant information regarding IUU fishing activities of vessels flying its flag, FAO is allowed to circulate it only with the consent of and restrictions imposed by that Party (art. 6(8)(a) and (10)). Parties may also report on IUU activities of vessels not entitled to fly its flag to FAO, but the circulation of the information is again subject to the consent or comment of the flag State concerned (art. 6(8)(b)). Thus it cannot be expected that FAO is able to publicize, in the database or otherwise, much information on vessels involved in IUU fishing. It is therefore suggested that a supplemental database be developed by another institution, be it a Government, industry, NGOs, or a group of RFOs. The new database should be completely open on the Internet, inviting input of information from as wide sources as possible. In this respect, a useful model may be the EQUASIS database developed by France and the European Union with a view to disseminating basic information on merchant ships.121 The database is widely acclaimed as a valuable initiative for greater transparency of information for a variety of players involved in shipping, as well as a great contribution to enhancing quality of ships and driving substandard ships out of business. Clearly, great obstacles exist for collecting information on fishing vessels systematically, unlike more visible merchant vessels. However, it could be started with available information such as those obtained by RFOs and port States inspecting foreign vessels, as well as those collected from published commercial sources.

121

EQUASIS is accessible on the website at http://www.equasis.org (Last visited Feb. 19, 2004).

CHAPTER 6

IUU Fishing or IUU Operations? Some Observations on Diagnosis and Current Treatment Davor Vidas1

I. Introduction Over the past decade, a large number of measures have been elaborated through international cooperation aimed at combating the problems associated with the phenomenon now commonly referred to as “illegal, unregulated and unreported” (IUU) fishing. Most of these measures are now contained in legal instruments that fall within the sphere of the Law of the Sea, including fisheries management and conservation. Among those global instruments, major milestones following on the 1982 United Nations Convention on the Law of the Sea2 were the 1993

1 I am indebted to my colleague at the Fridtjof Nansen Institute, Olav Schram Stokke, for discussions on the subject matter and for comments. Part of the material contained here has also been used for our joint study, Olav Schram Stokke & Davor Vidas, Regulating IUU Fishing or Combating IUU Operations?—a paper submitted to the OECD Workshop on IUU Fishing Activities, April 19-20, 2004. 2 Dec. 10, 1982, 21 I.L.M. 1261 (entered into force Nov. 16, 1994). See generally, Chapter 5, supra, by Moritaka Hayashi.

125 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 125-44. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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FAO Compliance Agreement,3 the 1995 U.N. Fish Stocks Agreement,4 as well as the 2001 International Plan of Action against IUU Fishing.5 Regional fisheries bodies have also adopted a great many specific measures, and various national measures have been adopted as well. However, despite the numerous measures targeted against IUU fishing activity, it does not seem to be significantly reduced. On the contrary, in some regions it is even on the rise. Areas where sharp decreases of IUU fishing have been documented seem to be those where the fish stocks have been exposed to over-fishing, so that incentives for (IUU) fishing have ceased to exist. What is the reason for the weak correspondence between the measures adopted and their impact? Should we start by studying the measures? Or should we return to “square one” and ask: Do we have the right diagnosis of the problem? This chapter begins by re-examining the diagnosis, asking: Is our current understanding of the problem comprehensive enough to enable us to deal with it effectively? Does it comprise all the segments we need to address, and all the relationships among the segments? After discussing these questions, we will focus on the ability, and possibility, of international cooperation to adopt measures that can adequately deal with the problem as diagnosed. Here we will not venture beyond global and regional international cooperation, thus leaving national measures and transnational elements outside the scope of the discussion. In two sections, we will review various existing measures to combat IUU fishing and examine the extent to which they respond to the diagnosis. First, the Law of the Sea measures: Might it be that the main thrust of those measures has focused on curing symptoms rather than causes? Second, as to trade-related measures such as catch-documentation schemes: Do they have any significant practical effect when not backed up by other types of measures, and supported by adequate and timely information? To support the discussion with empirical information, we will use the case of IUU fishing for Patagonian toothfish in the Southern Ocean—and the measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)—as an illustration of the problems and limitations facing regional fisheries management organizations (RFMOs) in their efforts to combat IUU fishing. There is a further reason for selecting the case of CCAMLR and Southern Ocean fisheries for Patagonian toothfish: the notion of IUU fishing originated there. For that reason, the concept emerged as being limited to the sphere of an RFMO (though CCAMLR is not solely a fisheries man-

3

Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, approved Nov. 20, 1993, 33 I.L.M. 968 (entered into force April 24, 2003) [hereinafter FAO Compliance Agreement]. 4 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, 34 I.L.M. 1547 (entered into force, Dec. 11, 2001) [hereinafter U.N. Fish Stocks Agreement]. 5 FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing [hereinafter IPOA-IUU] (2001), available at http://www. fao.org/DOCREP/003/y1224e/y1224e00.HTM.

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agement organization), and has accordingly provided a certain perspective on the problem.

II. The Problem: Do We Have the Right Diagnosis? What is our current understanding of the problem? While no mandatory definition of the problem is available, a commonly accepted one is found in the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA–IUU). The “nature and scope” of the issue is defined in IPOA-IUU as being illegal, unreported and unregulated fishing. Here, “illegal” fishing refers to “activities conducted by vessels” operating in contravention of national laws or international measures. “Unregulated” refers to fishing vessel activities that, while not in formal conflict with laws and regulations, are nevertheless inconsistent with conservation measures or broader state responsibilities to this effect. This diagnosis therefore describes “fishing activity” and “vessel operations”—which are either illegal, unregulated or unreported (or all at the same time)—as the constituent elements of the problem. Accordingly, the recommended measures to “prevent, deter and eliminate” this problem primarily concern vessels and their (IUU) fishing activity. The operation of vessels involved in IUU fishing is indeed an important manifestation of the problem, and it has visible impacts on the status of fish stocks. Here, however, I wish to offer several hypotheses about the diagnosis of the problem: First, fishing vessel activities engaged in IUU fishing are not the origin of the problem. Second, IUU fishing has proven resilient to regulatory efforts for reasons going beyond jurisdictional obstacles in regulating the activities of fishing vessels at sea. Third, vessel operations and their fishing activity are not the ultimate purpose of IUU operators’ engagement. If those hypotheses prove correct—as will be argued in this section—they would suggest that the main effort so far has involved treating symptoms rather than causes, dealing with manifestations of the problem rather than the purposes of those who create it. Moreover, this has often been done by relying on means that are relatively costly, such as enforcement at sea; or on concepts that have proven controversial, such as attempting to define what constitutes a “genuine link” between the vessel and the flag state. The scope of the problem is, I maintain, far broader than indicated by the commonly accepted diagnosis of the problem as “IUU fishing.” Accordingly, the prevailing focus of the currently available measures needs to be reexamined. While one should indeed combat IUU fishing, it is not necessarily the case that this can be done exclusively and directly in the area where such activity occurs—its main drivers, just as its facilitators, are to be found elsewhere. Fishing per se constitutes only one segment of the overall problem. In Figure 6.1, the sphere of IUU fishing is indicated by dotted lines. As can be seen, this is clearly only a part of a larger whole. It seems more accurate to understand

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the problem as an inter-related chain of various links—of which “at sea”6 operations are only a part. What we need to do is to expose the problem by defining and analyzing various links in the chain of an “IUU operation”—a more accurate term than “IUU fishing.” As illustrated in Figure 6.1, an IUU operation for the purpose of international trade can be understood as a chain composed of several main links:7 1. purchase of a fishing vessel and its transfer from the real owner to the declared (registered) owner; 2. vessel registration in a national registry, so that the vessel acquires a flag state; 3. vessel involved in IUU fishing at sea (including refueling at sea, and transshipment of catch at sea); 4. IUU catch landed at a port; 5. catch/product imported, then often reprocessed and re-exported, as a rule through an intermediary state; 6. catch/product imported by final importing state; and 7. fish product reaching retailers, distributors and end-consumers. Those links cluster in three segments of an IUU operation, each of which can be targeted by measures designed to combat IUU operations: N First is fishing vessel activity, from vessel registration to landing of fish at a port. This is the international segment “at sea,” and corresponds largely to what is understood as “IUU fishing.” However, this is in many ways a manifestation of the problem. N Second segment is catch/product in international trade and market, which is where income-flows occur and net incomes are generated; the latter is the main purpose and the driving force for IUU operations. N And the third segment is the overall infrastructure of an IUU operation. This is largely played out in a transnational sphere,8 and involves such features as the difference between the declared and beneficiary vessel owner, opportunistic company setting, recruiting of masters, employment of crew, availability of private port facilities, services, etc. This is where the main strength of an IUU operation is created: its flexibility.

6

“At sea” we understand here in sense used in the Law of the Sea, i.e., from vessel registration to the landing of catch in a port. 7 IUU fishing can be conducted either for the market of the port state or for international trade. This chapter focuses on the latter case only, which generally applies to lucrative IUU fishing for high-value fish species. 8 “Transnationality” is marked by direct involvement of individuals and/or companies from one state in the jurisdictional sphere of another state or states, and is thus different from the “international” sphere, where subjects of international law, such as states, interact. This transnational element provides many options for flexibility of an IUU operation, by utilizing the comparative advantages, and loopholes, of varying legal systems.

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Figure 6.1. The IUU Operation

Real (beneficiary) owner

Legally invisible line

Declared (registered) owner

Vessel registration (flag State)

Vessel in IUU fishing at sea Trans-shipment of catch at sea IUU catch landed at port

Catch/product imported - reprocessed re-exported (often through intermediary State) Final importing State Retailers - distributors - consumers

INCOME FLOW

Refuelling at sea

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Those three segments, then, constitute our diagnosis of the problem. Its manifestation is fishing vessel operations; its resilience to internationally agreed measures is due to flexibility, enhanced by the transnational mode of its infrastructure; and its ultimate purpose is to generate net income. Measures that primarily address “at sea” activities, as do most of the measures elaborated so far, are hampered by the considerable flexibility available to IUU operators—all the way from vessel registration to the landing of the catch at a port. Such measures have only a limited potential to impact on the main purpose of any IUU operation: the generation of net income. Measures to address an IUU operation effectively will need to deal with all three segments of the phenomenon. In addition, they must exploit potentials to cut across those three segments. This is in line with the perspective enshrined in the general objectives of IPOA–IUU. There, a “comprehensive and integrated approach” is formulated, according to which “States should embrace measures building on the primary responsibility of the flag State and using all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market-related measures and measures to ensure that nationals do not support or engage in IUU fishing” (para. 9.3 of IPOA–IUU). This comprehensive and integrated approach, while perhaps not yet elaborated in all aspects, corresponds to an understanding of the problem as being one of IUU operations rather than IUU fishing only.

*** According to the Introduction to IPOA–IUU, “[e]xisting international instruments addressing IUU fishing have not been effective due to a lack of political will, priority, capacity and resources to ratify or accede to and implement them.” There is no reason to dispute this view. Rather, the issue is whether we today have measures suited to deal with the complexity of an IUU operation. And what is the best way to proceed: more measures? better integration among existing ones? or a shift of emphasis among such measures? In the next two sections, we will follow the two main international segments of an IUU operation—the vessels at sea and the catch in trade—and attempt to evaluate the effectiveness of current measures.9 However, we will not enter into descriptive details of the measures devised so far, as the intention here is to examine whether various categories of measures are responsive to the diagnosis of an IUU operation. Further, we want to pinpoint the main reasons for their lack of effectiveness, and to explore some possible ways and conditions for overcoming existing limitations. An important aim here is also to identify institutions and stakeholders that may be able to contribute to enhanced effectiveness.

9

For a more comprehensive treatment, focusing also on transnational infrastructure and broader trade-related measures, see Stokke & Vidas, supra note 1.

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III. Targeting IUU Vessels: The Law of the Sea Domain The sphere covered by the Law of the Sea governs an IUU operation from vessel registration to landing in a port; international law governing this sphere is directly applicable to states. Here, an IUU operation has three main stages: 1. vessel registration, through which IUU operators acquire a flag state (vessel nationality); 2. fishing-vessel operation at sea—jurisdictional, control and enforcement issues arising here concern the balance of flag-state and coastal-state competences; and between the flag-state jurisdiction, on the one hand, and measures of regional fisheries organizations, on the other; and 3. landing in port, and port-state jurisdiction regarding fisheries. In the following, we take a closer look at each of those three stages of “at sea” IUU operations. We will inquire as to the reach of measures addressing these stages, both in global instruments (which provide a framework) and those adopted by RFMOs such as CCAMLR (which specify and advance that framework).

A. Vessel Registration and Acquiring of Nationality of a Flag State Vessel registration can be described by various legal definitions; essentially, all of those will state that, based as a rule on registration, a state grants its nationality to a ship.10 Every state has the right to sail vessels under its own flag. This is a fundamental right under the law of the sea, and is in itself not disputable. So far, states have not been able to successfully agree on whether this basic right can be made conditional by internationally agreed requirements that specify the nature and content of the link between a vessel and a state. 11 Consequently, conditions for registration are today determined by states, largely at their own discretion.12 When a vessel acquires the nationality of a certain state, that state becomes its flag state and thereby assumes primary responsibility and jurisdiction over the vessel. This is, in very simplified terms, how vessel registration, nationality, and the flag state principle operate—as seen from the perspective of states. There is another perspective on the same issue: that of the operator. This can be a physical person, though as a rule it is a juridical person, i.e., a company. Numerous companies have the opportunity to register business activity in more than one state. This is a core feature of international business and trade, and in itself it is not controversial. However, a company may well have a perspective 10

See David D. Caron, Ships, Nationality and Status, in IV ENCYCLOPEDIA OF PUB400-08 (2000). 11 The contents and fate of the (stillborn) 1986 U.N. Convention on Conditions for Registration of Ships is a good proof to that effect. See Budislav Vukas & Davor Vidas, Flags of Convenience and High Seas Fishing: The Emergence of a Legal Framework, in GOVERNING HIGH SEAS FISHERIES: THE INTERPLAY OF GLOBAL AND REGIONAL REGIMES 61-62 (Olav Schram Stokke ed., 2001). 12 See United Nations Convention on the Law of the Sea, supra note 2, at art. 91, 21 I.L.M. at 1287. For a discussion, see Vukas & Vidas, supra note 11, at 57-61. LIC INTERNATIONAL LAW

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on vessel registration that differs considerably from that of a state. If the company is an IUU operator, vessel registration will be understood as a formal step by which that operator equips a vessel at its disposal with a suitable flag. Whether a flag is a suitable one will depend on circumstances, which in the case of fishing are more fluid than those related to the use of “flags of convenience” in world shipping. When the two perspectives are combined, the result is that many companies—whether IUU operators or not—may choose from among many national arenas where to conduct their businesses. Setting up a one-ship company in one country and registering a vessel there, in order to obtain nominal nationality and a flag on a vessel, is essentially an initial phase of a business operation, which at that stage cannot easily be adjudged as either illegal, unregulated or unreported. Even if the “company” consists of a post-box address only, and this remains its main connection to the “host” country, in many countries this does not contravene national law. Likewise, having a vessel registered in a registry without any real attachment to the country, other than formal registration and payment of fees, is in many countries not contrary to national law. It is therefore not illegal, not unreported, and—albeit somewhat unregulated—it is not prohibited. From here, an IUU operation will start its voyage. What can international law, or for that matter the law of the sea, do to assist in combating IUU operations at the stage of vessel registration and, subsequently, the licensing of a vessel to fish? Instead of re-opening the eternal discussion about “genuine link” and “flags of convenience,” let us start by identifying the elements that an IUU operator needs at this stage. First, he needs to find a suitable flag state. Second, he needs to have at his disposal a suitable fishing vessel that can be entered in that country’s register and thereafter licensed. Those are the two firm elements. The rest (like setting up a company) may be an abstraction only, or generally too difficult to trace (e.g., the hiring of crew). We will therefore focus on those two firm elements: a state and a vessel. Is international law, or international cooperation, entirely impotent here? Or is there still some potential for further action in the sphere of vessel registration and licensing?13 Can international cooperation help to make some states less suitable for the purposes of IUU operators? Similarly, is it possible to make vessels less suitable for the purposes of IUU operators? 1. States Less Suitable for IUU Operators While there may be numerous companies, the number of states in the world is limited, and many states are simply not suitable for IUU operators. Those that are suitable fall into two categories. One group consists of states not members to a certain regional fisheries management organization; among those, only states that do not exercise their flag-state responsibility will qualify as suitable for IUU operators. The other group is usually quite limited, but also a significant feature in IUU operations: states that are members of regional fisheries management 13

Here we will not enter into discussion of economic measures (such as subsidies) or national legislative measures (such as vessel registration denial by some countries), but will remain on the level of international cooperation and international law. Issues of subsidies and denial are discussed in Stokke & Vidas, supra note 1.

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organizations but that lack either the will or the capability to exercise their flagstate responsibility. Common to all states suitable for IUU operators is, therefore, the absence of flag-state responsibility. Applying the commonly accepted label of “flags of convenience” for those states is neither correct nor productive.14 A recent FAO study noted that the flags used in IUU fishing are actually “flags of noncompliance;” soon afterwards, that term was adopted by CCAMLR.15 But not all states are obliged to comply with the conservation measures of RFMOs—only those that are members of the RFMO in question, or parties to the U.N. Fish Stocks Agreement. Other states, if they so wish, may remain in non-compliance as long as that does not conflict with duties they have accepted or are bound to under general international law. However, there is one minimal requirement that remains valid for all flag states: All states should be responsible for exercising some degree of control over vessels flying their flag. This is their flag-state responsibility. Those states that flag vessels without exerting any form of control over their activities fail to exercise their basic responsibility as states in relation to vessels having their nationality. The flags of such states deserve to be labeled properly: flags of no responsibility. Some states may accept the label “convenient”, but hardly any state will accept being branded irresponsible. In international cooperation, “naming and shaming” can be a powerful measure. This can be done through a range of steps—from direct correspondence to the flag state by secretariats, through diplomatic demarches, etc. The more states (and with higher prominence in the particular context) that join in exerting such pressure, the greater will be the sense of exposure and embarrassment for the state in question. With greater transparency of this action will come increased embarrassment. The use of an appropriate label may further add to the convincing strength—and a label related to the lack of “flag-state responsibility” would be firmly based on the development of international law over the past decade. Any such label will be essentially relative, being linked to the context of particular fishery only. However, it may easily become perceived as absolute. This is a dilemma that regional organizations, such as CCAMLR, have had to face when discussing proposals for the listing of flags. Enhanced coordination between RFMOs should be able to assist in making this label less relative. 2. Vessels Less Suitable for IUU Operators A vessel will be seen as less suitable for an IUU operator if registering it in various national registers is difficult, or if it can be expected that the vessel will be denied a license to fish. For this, a vessel needs a “history”, a bad record of in14

Essentially, the term as such is also misleading, due to its relative nature. The notion of “convenience” is accurate only from the perspective of IUU operators; for all others, these are essentially “flags of inconvenience.” 15 See Port State Control of Fishing Vessels, FAO FISHERIES CIRCULAR NO. 987 (2003). See also Flags of Non-Compliance, CCAMLR, Res. 19/XXI (adopted in Nov. 2002), in COMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES, SCHEDULE OF CONSERVATION MEASURES IN FORCE , 2003/04 [hereinafter CCAMLR CONSERVATION MEASURES] 138-39 (2003). All CCAMLR Conservation Measures referred to in this chapter are published in that publication.

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volvement in IUU fishing. Herein lies a potential for international cooperation: it can become a vehicle for establishing a record of IUU fishing for some vessels. Recently, CCAMLR parties agreed to prohibit issuing a license to fish to vessels appearing in the newly established CCAMLR-IUU Vessel List, both for fishing in the Convention Area and in any waters under the fisheries jurisdiction of the parties.16 While the CCAMLR Secretariat compiles this list, the Commission approves it; however, the list is available only on password-protected pages of the CCAMLR website.17 Echoing the FAO Compliance Agreement, the IPOA-IUU contains clear limitations. While it holds that flag states should avoid flagging vessels with a history of non-compliance, the IPOA-IUU allows exceptions where ownership of the vessel has subsequently changed, or if the flag state determines that flagging the vessel would not result in IUU fishing.18 3. Assessment Ultimately, where is the problem with all the measures that can be used through international cooperation in this area? While they do exert some effect, gradually narrowing down the scope of movement for IUU operators, they share one pervasive feature of international cooperation: cumbersome procedures render their effect slow. Many RFMOs meet only once a year, and while their secretariats may operate year-round, decision-making occurs at an annual pace—and in organizations where consensus is the rule, it may take several years before a decision is agreed upon by all. The CCAMLR is a case in point here, since the adoption of decisions through consensus is a necessary consequence of CCAMLR being part of the wider Antarctic Treaty System. At the core of that governance system is the need uphold the delicate balance on sovereignty positions in the Antarctic, and this is safeguarded by consensus decision-making. 19 While “safe” from that perspective, the result is also slow-paced decisionmaking.20 In contrast, it will take far less time for an IUU operator to change a flag on a vessel, or to otherwise adjust to the emerging situation. Today, vessels can be re-flagged by some quick punches on a PC connected to the Internet. There are several specialized web sites that offer full services, from Q & A to assisting in prompt company setting and vessel flagging; probably the best-known one is www.flagsofconvenience.com. While international cooperation is slow and operates through firm principles of international law, business—such as setting up an IUU operation—is swift and operates not according to these principles but in the loopholes between 16

CCAMLR Conservation Measure 10-06 (2002), CCAMLR CONSERVATION MEASURES supra note 15. 17 Id. at ¶ 15. 18 IPOA-IUU, supra note 5, at ¶ 36. 19 See Davor Vidas, The Antarctic Treaty System in the International Community: An Overview, in GOVERNING THE ANTARCTIC: THE EFFECTIVENESS AND THE LEGITIMACY OF THE ANTARCTIC TREATY SYSTEM 35–60 (Olav Schram Stokke & Davor Vidas eds., 1996). 20 For instance, it took ten years (from 1992 to 2001) to the Antarctic Treaty Consultative Parties to arrive at consensus on where to locate the Antarctic Treaty Secretariat.

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them. This may be contrary to moral norms, but today—a decade after the adoption of the FAO Compliance Agreement and the U.N. Fish Stocks Agreement— IUU operators can still easily obtain flags and licenses to fish for their vessels from several states. From there, the IUU operation can set sail.

B. Jurisdiction, Control, and Enforcement at Sea At sea, the Law of the Sea operates through a balance of sovereignty, sovereign rights and jurisdiction between the coastal state and the flag state. On the one hand, the rights of the coastal state decrease as the zones are more remote from its coasts or baselines; and in respect to fisheries management, exclusive coastalstate rights cease at the outer limit of its EEZ. On the other hand, the rights of the flag state in respect to fisheries are valid to their full extent on the high seas, where the freedom of fishing governs; correspondingly, the rights of the flag state over the vessel flying its flag decrease, from zone to zone, in the direction of any coast other than its own. In-between this balance are RFMOs, which can adopt conservation and management measures on the high seas (as well as in coastal zones) within their area of application. Enforcement capability, however, rests with states. 1. In Coastal Zones From the legal perspective, the coastal state is entitled to exert control and enforcement over fisheries activities within its various coastal zones. In this connection, it has often been said that the only truly effective means against IUU fishing is a patrol boat at sea.21 While the coastal state can indeed arrest a foreign fishing vessel involved in IUU fishing in its EEZ, there still are legal limitations: the flag state can require prompt release of vessel from detention upon the posting of a “reasonable bond.”22 From a practical perspective, in areas where this is possible, a patrol boat at sea can indeed be an effective means of control and enforcement. However, in many coastal waters, especially in EEZs and even in the territorial seas of many developing countries, this is difficult, due to the combination of poor capacity, high costs and extensive area of the fishing grounds. Difficulties are also encountered in areas of disputed sovereignty, or in remote areas such as the coastal zones around the various sub-Antarctic islands. For an IUU operator, the abstract legal construction of coastal-state jurisdiction in coastal zones matters only to the extent that effective physical control at sea can be expected. Where this expectation is higher, IUU fishing will depend 21 In reality, this is comparable with the view that the only effective way to fight crime is a police constable patrolling the street. Neither the causes nor most of the consequences can be dealt with in this way; moreover, it is very costly. 22 United Nations Convention on the Law of the Sea, supra note 2, at arts. 73(2) and 292, 21 I.L.M. at 1284, 1323. Several prompt release cases have been decided upon in recent years by the International Tribunal for the Law of the Sea (ITLOS), all originating in IUU fishing for Patagonian toothfish in EEZs around sub-Antarctic islands under French and Australian sovereignty. ITLOS cases are available at http://www.itlos.org/.

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on a simple risk assessment: probable net income from fish likely to be caught in a season versus the value of a vessel likely to be sacrificed in case of arrest.23 Where the likelihood of arrest is negligible and fish resources are well identified, an IUU operation will emerge from the risk assessment as a safe and good investment. In this area, it is not realistic to contemplate any more significant conceptual legal developments in the foreseeable future, other than perhaps more rigorous ITLOS interpretation of what should be understood as a “reasonable bond.”24 In respect to international cooperation, one available avenue is more intensive cooperation between the coastal state and the flag state, for instance in cases where observation has enabled identification of a vessel, not reached by other control or enforcement interventions. 2. On the High Seas On the high seas, the situation is different, from the legal standpoint and usually from the practical perspective as well. Unfortunately, both law and practical reality work in favor of an IUU operator. Here, what applies is one of the basic legal principles of international law of the sea: freedom of fishing, which all states enjoy. Today this is a freedom subject to conservation and management of marine living resources. RFMOs are a mechanism increasingly used to specify conservation and management measures. However, those measures are legally binding only on members of an RFMO; all other states remain “third parties.” Here one other basic principle of international law comes into play: pacta tertiis, the principle that international treaties do not oblige third states without their consent.25 On the high seas, therefore, not only practical impediments but also basic legal principles work in favor of IUU operators. Fishing here is free for all, and although there has been an increase in conservation measures by RFMOs, these are not binding on third states or on the vessels under their jurisdiction. In this area, post-UNCLOS law of the sea has seen some important developments, prompted primarily by innovative regional solutions. These measures needed global sanction, which was acquired through the 1993 FAO Compliance Agreement and, especially, the 1995 U.N. Fish Stocks Agreement, now both legally in force. The development here can be summed up as going in two directions: extending the effect of measures adopted by RFMOs to third parties; and extending the reach of the “patrol boat” from zones under national jurisdiction to the high seas. For international law, those were significant, almost revolutionary,

23

Also for this reason, many IUU operators use fishing fleets in which vessels have different roles (fuel supply, storage etc). One of these roles may sometimes be that of the vessel to be sacrificed in order that other, more valuable, vessels can escape. This was likely the role of Lena, apprehended in the same action together with Volga, both under Russian flag; the rest of that fleet, comprising more advanced vessels flying flags of third parties, escaped with the fish that had been caught. 24 This trend can be observed in ITLOS, especially after the Volga case in December 2002. 25 Vienna Convention on the Law of Treaties, concluded on May 23, 1969, art. 34, 1155 U.N.T.S. 331, 341 (entered into force, Jan. 27, 1980).

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developments. As to their practical impact, however, in many areas this has remained moderate, with few prospects for improvement. As to the first of these developments, Article 8(3) of the U.N. Fish Stocks Agreement specifies how a flag state fishing on the high seas, where conservation measures adopted by RFMOs apply, is to give effect to its otherwise general duty to cooperate: by becoming a member to the RFMO or by agreeing to apply the measures in question. Moreover, Article 8(4) provides that only those flag states that act accordingly shall have access to the fishery resources to which the measures by the RFMO apply. Many RFMOs have followed up by more specific requirements. However, among the parties to the U.N. Fish Stocks Agreement, there is only a small number of flag states truly addressed by those provisions. And, perhaps of even graver concern, many problems of IUU fishing are caused by states that are already parties to various RFMOs, but that fail to implement regionally agreed conservation measures or to exercise their flag-state responsibility.26 In such cases, as has been demonstrated, the resort to persuasion by other members of that RFMO may require years of systematic follow-up— with the burden of proof regularly resting on those seeking to prove the offense. As to the second major legal breakthrough, Article 21 of the U.N. Fish Stocks Agreement authorizes states parties to the Agreement that are members of a RFMO to board and inspect fishing vessels flying the flag of any other state party to the Agreement, regardless of whether this state is a member of the RFMO in question. This means moving a “patrol boat” to the high seas, though its authority is limited to inspections. While certainly a useful solution in the specific regional context from which it originates,27 and the areas of geographic and geopolitical proximity (e.g., the Barents Sea), or potentially in an semienclosed/enclosed sea not divided into EEZs (such as the Mediterranean Sea), in many other cases this innovation is of little practical value.28 In the Southern Ocean, for instance, this would mean patrolling high seas fishing areas like the Ob and Lena Banks, several thousand kilometers away from the nearest harbors—only to carry out inspections, not arrests (and only in respect of vessels flying the flag of a party to the U.N. Fish Stocks Agreement). Moreover, inspections in the Southern Ocean are done almost exclusively in maritime zones under (sometimes disputed) sovereignty, and those zones cover only a small fraction of the entire toothfish fishing area. This is not to say that RFMOs have no role to play in high seas control; quite the contrary, information collection, its transparency,29 and collective pres26

Let alone being unwilling or unable to control the activities of their nationals pursued under jurisdictions of other states. 27 The provision is in many respects modeled after the Bering Sea Doughnut Hole Convention. 28 However, that provision may be an additional impediment for some states to ratify the U.N. Fish Stocks Agreement. As to regions such as the Mediterranean, where this type of compliance mechanism can be conceived of, there is as yet little evidence that it would be relevant in practice. 29 It is, however, transparency which is often difficult to achieve, with information about fisheries often being compromised by commercial privacy of data. A further obstacle is reliability of information, and thus an additional reason for caution when transparency is required. See infra for further discussion.

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sure on the flag state are all important mechanisms. This system, however, may function only in respect of those states that do exercise their flag-state responsibility, or those who may decide to exercise it when faced with increased international pressure. In addition, for those areas where internationally agreed management and conservation measures apply, RFMOs do have a role to play by introducing and implementing catch-certification and trade-documentation schemes. Their operation begins at sea, and it is often at this stage that the fraud regarding documentation originates.30

C. Port-State Jurisdiction and Control Regarding Fisheries The final point where an IUU operator meets the Law of the Sea is while landing a catch in a port. Port-state control in respect to fisheries is a relatively new development. After some initial regional experiments, it first emerged on the global level in the 1993 FAO Compliance Agreement. Under that Agreement, however, the power of the port state is quite limited: if it has reasonable grounds for believing that a vessel has been involved in IUU fishing, all the port state can do is to promptly notify the flag state about this.31 The 1995 U.N. Fish Stocks Agreement goes further: it is “the right and the duty” of the port state to take non-discriminatory measures against IUU fishing.32 The Agreement entitles (and instructs) the port state to, inter alia, inspect documents, fishing gear and catch on board the fishing vessel. If it is established that the catch originates in IUU fishing, the port state may, pursuant to its laws, prohibit landings and transshipment. Its power stops short of detaining the vessel, however.33 At present, combatting IUU operations in ports would seem another weak point of the Law of the Sea. True, waiting for the catch to arrive in port is far cheaper than chasing the fishing vessel at sea. Nevertheless, there are in the world many port states, and many more ports, and it is difficult to know in which of those an IUU catch will be landed. The history of landings of IUU catches of Patagonian toothfish can serve as an illustration. When this IUU fishing started on a large scale in the early to mid-1990s, the initial ports used for landing were in South America. Then, as IUU fishing moved to the Indian Ocean sector, initially Southern African ports were used, first in Namibia and Mozambique and, then increasingly, Mauritius. Although the latter is still cited, today this is largely “old fashioned,” as the major landings today have moved to ports in Asia. We may compare the effectiveness of unilaterally implemented port-state control measures with the effectiveness of traffic police waiting at the very end 30

For further discussion on catch certification and documentation, see infra. FAO Compliance Agreement, supra note 3, at art. V(2), 33 I.L.M. at 973. 32 The exact wording is given in art. 23(1) of the U.N. Fish Stocks Agreement, supra note 2, 34 I.L.M. at 1561. 33 Some states, like the United States under the Lacey Act, do have stronger national measures; many other states deny access under some circumstances. However, those measures largely lack coordination. 31

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of a highway, hoping here to apprehend all those who have gone too fast on the entire highway. Just as there are many exits from a highway, there is always “some other port” (and port facilities may be under private control). Second, just as one can slow down before passing a speed control, IUU operators can adjust the usage of the flag on the vessel, or even adjust the vessel itself, before appearing in port. The landing of an IUU catch can be done by “some other flag,” due to re-flagging, or by “some other vessel,” due to the prevalence of transshipment at sea. Despite such practical limitations, port-state measures seems to be an area with potential for development, perhaps more than any other Law of the Sea mechanism. There are probably three areas in which—based on the development of RFMO practice, indications from IPOA–IUU, and on-going processes in the FAO—we can expect further elaboration of port-state measures as a mechanism against IUU fishing.34 First, any meaningful port-state control must be based on coordinated efforts, resulting in compatible measures. Recently, this understanding has led to the process towards developing such measures at the FAO, first through an Expert Consultation in November 2002, while a Technical Consultation is scheduled for the second half of 2004. Second, broadening the extent of port-state measures is a discernible trend in state practice, in RFMOs measures and in consecutive global instruments. The direction here is towards not merely sitting and waiting for a vessel to arrive in port, but also proactively undertaking port-state measures before that. Through state practice, some requirements have developed in this respect, now formulated in IPOA–IUU: giving reasonable advance notice before entry into port, providing a copy of the authorization to fish, and specifying details of the fishing trip and quantities of fish on board.35 If this would lead to “clear evidence” that the vessel has been involved in IUU fishing, landing or transshipment can be denied. Since re-directing of the vessel may add to the financial burden for IUU operators, this approach is worth considering for wider global application. Third, strengthening of the content of port-state measures, as well as further specification of these, is also a trend evident from recent practice and reflected in IPOA–IUU. Reversal of the burden of proof, placing it on the vessel to establish that the catch was taken in a manner consistent with conservation measures, is already enshrined in IPOA–IUU (para. 63). Attention can also be drawn to the degree to which RFMOs need to provide proof of a vessel’s being involved in IUU fishing: actual “sighting” of a non-member vessel in an area of conserva-

34

The resulting measures will need to be fair, transparent and non-discriminatory, as stated in IPOA–IUU. 35 IPOA–IUU, supra note 5, at ¶ 55 (stressing also due regard to confidentiality of data). For an overview of state and RFMOs practice, see Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO TECHNICAL GUIDELINES FOR RESPONSIBLE FISHERIES, NO. 9 41-45 (2002).

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tion measures is gradually becoming replaced by a non-member vessel being “identified” as engaged in fishing activities.36 Finally, there is the economic aspect. Due to greater cost-efficiency, the advantage of port-state measures over enforcement at sea is especially attractive for developing countries. On the other hand, implementation of port-state measures requires adequate training in fishery inspection: this is an area where international assistance projects should be stimulated. This could also be an additional mechanism to persuade states to forego the benefits from trans-shipment activities related to IUU fishing.37

D. Some Final Observations on Law of the Sea Measures What general conclusions can be drawn about the reach of Law of the Sea measures, applicable “at sea”—from vessel registration to the landing of catch in port? First, the Law of the Sea as an effective tool for combating IUU fishing is clearly limited by general legal principles otherwise necessary for upholding legal security. These principles, however, provide IUU operators with ample space in which to maneuver. While international law by its nature needs to be stable (though not inert), IUU operators, by the nature of their business, need to be efficient, flexible and creative. Second, the development of legal measures, whether through regional or through global international cooperation, is a slow process; and when it brings results, those tend to come in small portions. Simultaneously, today’s IUU operators have access to modern information technology, enabling them to react and quickly adjust to changes. Third, enforcement at sea is a costly operation; even for states with a good enforcement machinery at their disposal, the financial costs can exceed the value of the fish resources to be protected. States may operate on the basis of various policy considerations, not only economic ones. For an IUU operator, the cost-benefit analysis is more simple, and a risk assessment rather straightforward; moreover, the relevant areas are vast, measured in millions of square kilometers, without any legal possibility of direct enforcement. All this combines to give clear advantages to IUU operators. Nonetheless, the measures developed so far to combat IUU fishing have been predominantly in the Law of the Sea sphere of regulation. After some advances on harmonization of port-state control measures that are likely in the near future, the arsenal of the Law of the Sea will largely be exhausted for some time. However, the real impact of those measures has so far been not in direct enforcement, but in their indirect effects. With more information available about IUU operations and with increased pressure from states, often through RFMOs, some flag states have improved the exercise of their flag-state responsibilities. With some waters being more effectively patrolled, IUU operators have found it necessary either to change their fishing grounds or become involved in higher-

36 See FAO TECHNICAL GUIDELINES FOR RESPONSIBLE FISHERIES, NO. 9, supra note 35, at 46 (comments). 37 On the latter aspect, see also id. at 45.

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risk operations.38 With greater international attention focused on IUU fishing, some loose grips—such as a “reasonable bond” under the Law of the Sea Convention—are now becoming firmer thanks to judicial judgments. With fewer ports fully open to IUU operators, such operators have less flexibility and often higher costs involved in circumventing new regulations, either by fraud or by changing the port. All the same, these are rather modest outcomes in view of the sizeable investments in time, resources and political attention directed to the problem of IUU fishing over the entire past decade. There is therefore an obvious need to target an IUU operation at links where there is less opportunity for avoidance of regulation, where the implementation of measures is less costly, and where the measures can more directly target the basic profit-earning purpose of an IUU operation (not only its visible manifestation) and respond to its flexible transnational character.

IV. Targeting IUU Catches—CCAMLR Catch Documentation Scheme Several fisheries regimes have developed schemes for documentation of catches, to promote better management and conservation of particular species. This represents a further step forward in differentiating between legal and IUU catches. Such schemes are especially relevant for IUU fishing carried out for international trade, as is the case with high-value tuna species and toothfish stocks. ICCAT introduced trade documentation for blue-fin tuna in the early 1990s. This has been followed by several other “trade documentation” schemes developed on that model, especially within the tuna trade: those by CCSBT, IOTC, and by ICCAT for big-eye tuna and swordfish. The “catch-certification” system, as developed by CCAMLR since 2000, differs from those. In tradedocumentation systems, documents are issued at the point of landing and only for products that enter international trade: by contrast, in a catch-certification system, the documents are issued at the point of harvesting, and are related to all fish to be landed or trans-shipped.39 The CCAMLR catch-documentation scheme (CDS)40 covers toothfish catches taken in the Convention area as well as on the high seas outside that area. Participation in the CDS is open to CCAMLR parties 38

However, increased patrolling in some areas, including around some subAntarctic islands, is often a result of political considerations, not necessarily prompted by the needs of marine living resources management and conservation, and can thus change if the motivation changes. 39 See Denzil Miller, Eugene Sabourenkov & Natasha Slicer, Unregulated Fishing – the Toothfish Experience, in THE ANTARCTIC TREATY SYSTEM FOR THE 21ST CENTURY (Michael Richardson & Davor Vidas eds., forthcoming 2004). 40 The CDS is currently based on Catch Documentation Scheme for Dissistichus spp., CCAMLR Conservation Measure 10-05 (2003), CCAMLR CONSERVATION MEASURES, supra note 15. On the CDS see especially David J. Agnew, The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch Documentation Scheme, 24 MARINE POL’Y 361-74 (2000).

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and non-parties alike; to date, several non-parties with significant roles in various stages of toothfish catch movement between vessel and market have joined the CDS: China, Seychelles, Singapore and, partly, Mauritius. Most sections of the toothfish market are currently covered by countries participating in the CDS, including the United States, the European Union, and Japan; other sections, however, are not (especially Canada). It has been estimated that countries involved in the CDS constitute about 90 percent of the market for international trade of toothfish; and that it is being applied to an area comprising 90 percent of the global human population.41 The purpose of the CDS is to place several distinct obstacles in the way of trade in IUU catches. First, toothfish caught in the Southern Ocean without a “paper” should become more difficult to export and import, and therefore less attractive to the market—and this would result in a diminished net income to IUU operators. Soon after the CDS was introduced, it was estimated that the price of toothfish not accompanied by a valid catch document was as much as 25–40 percent lower;42 and even greater differences have been cited.43 Second, the CDS operates in tandem with other CCAMLR measures, and with national legislation in some countries. Port-state measures are especially relevant in this respect. On the basis of CDS information, landing and transshipment in ports can be denied. The burden of proof is placed on the operator, who must establish that toothfish has been caught legitimately outside the Convention area or within the CCAMLR area in accordance with the applicable conservation measures.44 Moreover, such denial targets both exports and imports, strengthened by national legislation in major market countries, such as the United States. Third, an important purpose of the system is to supply parties and the CCAMLR secretariat with data on toothfish trade and to assist in verification of such data. With the obligatory VMS for parties fishing in the CCAMLR area,45 against the backdrop of license requirements authorizing fishing in the Convention area, the flag state can determine the catch location and certify the catch before it is landed or trans-shipped. The introduction of electronic, web-based CDS, currently as a pilot project, aims at almost real-time data and at further facilitating cross-checking and verification capabilities.46

41

Miller, Sabourenkov & Slicer, supra note 39. Para. 2.3 of the ‘Report of the Standing Committee on Observation and Inspection (SCOI)’(Hobart: CCAMLR, 2000). 43 Miller, Sabourenkov & Slicer, supra note 39, indicate prices at 8.40 USD/kg for fish with catch document, against 3 USD/kg for fish not accompanied by the document. 44 Port Inspections of Vessels Carrying Toothfish, CCAMLR Conservation Measure 10-03 (2002), CCAMLR CONSERVATION MEASURES, supra note 15. In accordance with that conservation measure, advance notice is required, as well as a declaration of not being engaged or supporting IUU fishing. Access to the port can be denied. On trends in port-state measures, see above, in this chapter. 45 See Automated Satellite-Linked Vessel Monitoring System (VMS), CCAMLR Conservation Measure 10-04 (2002), CCAMLR CONSERVATION MEASURES, supra note 15. 46 See generally Christopher J. Carr, Recent Developments in Compliance and Enforcement for International Fisheries, 24 ECOLOGY L. Q. 847 (1997). 42

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While CDS targets a weak spot of an IUU operation, some loopholes remain. After CCAMLR introduced the CDS, an increasing amount of toothfish has been reported as caught in FAO Statistical Areas 51 and others, in the Southern Ocean just beyond the area of application of CCAMLR conservation measures. Current scientific knowledge suggests, however, that it is unlikely that such amounts of toothfish are in fact found in those areas. Difficulties related to VMS verification and the fact that VMS data are not sent directly to the CCAMLR secretariat, but only reported via the flag state (and coastal state, for fishing licensed within its EEZ), have facilitated this situation. While some CCAMLR parties have advocated the adoption of a centralized reporting system, modeled after NAFO or NEAFC, which would enable direct (parallel) sending of satellite data to the CCAMLR secretariat, no consensus on that has been reached. Nevertheless, several CCAMLR parties are now participating in a voluntary centralized system as a “pilot project.”

V. Conclusions The problem of IUU fishing for the purpose of international trade is far wider than IUU fishing as such; what we face is actually a complex chain of IUU operations. Focusing on two international segments of an IUU operation—vessel at sea and catch in trade—this chapter has examined the reach and limitations of the global framework and the more specific measures adopted by RFMOs, such as by CCAMLR. Seen in isolation, each of the measures at hand has severe limitations and cannot be expected to be effective on its own. If measures can be designed to operate on a coordinated basis, however, the accumulated costs imposed on IUU operations can become substantial. This would reduce the lucrativeness of, and limit the space available for, such activities. This leads to several conclusions. First, the list of global and regional instruments developed within the sphere of the Law of the Sea to address IUU fishing is quite impressive, especially given the short time that has passed since this issue gained prominence on the political agenda. Nevertheless, measures that primarily target the vessel at the stage of registration and at sea attack the chain of an IUU operation at its most robust links. Activities conducted here enjoy a high degree of insulation from those who may seek to constrain them. This is due to general legal principles, especially the primacy of flag-state jurisdiction and the rule that treaties do not create obligations for third states without their consent—as well as the physical remoteness of much IUU harvesting, as in the Southern Ocean. It is necessary to target IUU operations at the less robust links where there are fewer possibilities of avoiding regulation and where enforcement can be made in more cost-efficient ways. After all, the basic purpose of an IUU operation is not fishing per se, or for that sake avoidance of legal measures: it is a profit-making venture that seeks to maximize net income. Further development of port-state measures would seem to be a promising avenue, especially with regard to regional harmonization and pre-entry documentation procedures that

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reverse the burden of proof by obliging vessels to show that a catch has been taken legally. Measures targeting the other international segment of IUU operations—the catch and product originating from IUU fishing—are somewhat less dependent upon costly monitoring and physical surveillance activities, and are thus of interest. Catch-documentation schemes can work in practice when other components of the monitoring and enforcement system, especially port-state coordination and VMS coverage, are well advanced. It is also important for such schemes to avoid conflict with international trade rules. Finally, in all the aspects reviewed in this chapter, the impact of information about IUU operations is a crucial factor. Regarding the vessel at sea, where the size of the marine areas is huge but the number of flag states involved is actually relatively small, international political pressure, when based on accurate information, can support the exercise of flag-state responsibilities. And regarding the flows of IUU catch in international trade, if current catch-documentation schemes are backed up by timely and accurate information, fraud can be significantly reduced. Technology limitations do play a role here, but these are not the main concern. The strength of information as a tool for combating IUU operations is enhanced if it can be made transparent. Among the impediments should be mentioned the fact that commercial data are involved, and some stakeholders will be reluctant to provide information knowing that it can become public. Moreover, other stakeholders may provide information that, at times, is not sufficiently substantiated. Improving the quality and management of information about IUU operations therefore is a key task, and one that involves governments, international institutions, as well as non-governmental organizations.

CHAPTER 7

The Regional Fishery Management Organizations and Ocean Law: A Perspective from Taiwan Yann-huei Song

If we are going to have an effective regime for fisheries conservation and management in the region then it is obvious that all those who belong to the region or fish in the region must be involved.—Ambassador Satya Nandan1

I. Introduction Since the early 1990s, the international community has adopted more than a dozen instruments to enhance and develop the legal framework for conservation and management of fisheries resources, as laid down in the 1982 United Nations 1 Opening remarks by Ambassador Satya N. Nandan, chairman of the fourth session of the Multilateral High Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (MHLC). Cited in Michael W. Lodge, The Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, in CURRENT FISHERIES ISSUES AND THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS at 31 (Myron H. Nordquist and John Norton Moore eds., 2000).

145 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 145-77. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Convention on the Law of the Sea (1982 UNCLOS).2 Among these instruments, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993 Compliance Agreement)3 and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 U.N. Fish Stocks Agreement)4 are the two that specifically deal with the conservation and management of high seas fishery resources with legally binding force after entry into force. The Compliance Agreement was approved at the 27th Session of the FAO Conference through Resolution 15/93 in November 1993. Building upon UNCLOS, this Agreement sets forth a broad range of obligations for parties whose fishing vessels operate on the high seas, including the obligation to ensure that such vessels do not undermine international fishery conservation and manage2 The United Nations Convention on the Law of the Sea, opened for signature December 10, 1982, entered into force November 16, 1994. Reprinted in 21 I.L.M. 1261 (1982). See also THE LAW OF THE SEA: OFFICIAL TEXTS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA OF DECEMBER 10, 1982 AND OF THE AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA OF DECEMBER 10, 1982 WITH INDEX AND EXCERPTS FROM THE FINAL ACT OF THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA (United Nations publication, Sales No. E.98.V.11). As of April 11, 2003, there were 142 contracting parties to this convention. For the status of the Convention, visit the U.N. website http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm. The adopted instruments include the Rio Declaration and Chapter 17 of Agenda 21 of UNCED (1992), the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement, 1993), the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 U.N. Fish Stocks Agreement, 1995), the Rome Consensus on World Fisheries (1995) the FAO Code of Conduct for Responsible Fisheries (Code of Conduct, 1995) the Kyoto Declaration and Plan of Action on Sustainable Contribution of Fisheries to Food Security (1995), the International Plans of Action for the Management of Fishing Capacity, for Reducing Incidental Catch of Seabirds in Longline Fisheries, and for Conservation and Management of Sharks (1999), the Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries, the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPA-IUU, 2001), and the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem (2001). For the text of the Compliance Agreement, the 1995 U.N. Fish Stocks Agreement, the Code of Conduct, and selected provisions of the 1982 UNCLOS relating to the conservation and management of living marine resources, see INTERNATIONAL FISHERIES: INSTRUMENTS WITH INDEX (United Nations publication, Sales No. E.98.V.11). For the text of Reykjavik Declaration, visit Internet Guide to International Fisheries Law’s web site at: http://www. oceanlaw.plus.com/bulletin/sample/materials/0111refish.htm. For the rest of the listed instruments, visit U.N. FAO’s Web site at: http://www.fao.org/. 3 In force April 24, 2003. For the text of the Compliance Agreement, see INTERNATIONAL FISHERIES: INSTRUMENTS WITH INDEX, id. at 41-49. 4 In Force December 11, 2001. For the background and text of the 1995 U.N. Fish Stocks Agreement, see id. at 7-37.

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ment measures. Under Article 5(2), “[w]hen a fishing vessel is voluntarily in the port of a Party other than its flag state, that Party, where it has reasonable grounds for believing that the fishing vessel has been used for an activity that undermines the effectiveness of international conservation and management measures, shall promptly notify the flag State accordingly.” This agreement will also create, through FAO, something akin to an international registry of high seas fishing vessels—a potentially powerful tool in monitoring fishing on the high seas. The agreement entered into force on April 24, 2003 after the deposit of the 25th instrument of acceptance by the Republic of Korea (see Table 7.1).5 In recognition of the fact that the management of high seas fisheries is inadequate in many areas, that some resources are over-utilized, and that there are problems of unregulated fishing, over-capitalization, excessive fleet size, vessel re-flagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between states, the 1995 U.N. Fish Stocks Agreement was adopted on August 4, 1995 at the six session of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. Resolution I on early and effective implementation of the 1995 U.N. Fish Stocks Agreement and Resolution II concerning reports on developments of the agreement were also adopted the same day. The 1995 U.N. Fish Stocks Agreement is the international community’s response to the problems regarding straddling and highly migratory fish stocks. In fact, this agreement is the first multilateral agreement seeking to improve the 1982 UNCLOS’s provisions relating to conservation and management of straddling and highly migratory fish stocks on a global scale and in a comprehensive manner. In that sense, the 1995 U.N. Fish Stocks Agreement updates international law and the 1982 UNCLOS.6 In addition, it should be noted that the 1995 U.N. Fish Stocks Agreement also addresses the problems identified in Chapter 17, Programme Area C, of Agenda 21. Accordingly, as suggested by Andrew Serdy, if the UNCLOS is a constitution for the oceans, then the 1995 U.N. Fish Stocks Agreement is its bill of rights for sustainable fisheries.7 According to S.H. Marashi, the 1995 U.N. Fish Stocks Agreement is “by far, the most detailed and comprehensive international legal instrument on the subject of conservation and management of straddling and highly migratory fish stocks.”8 Entry into force of this Agreement requires 30 ratifications or accessions. On November 11, 2001, Malta became the thirtieth state that deposited its instrument of ratification with the U.N. Secretary-General. In accordance with Article 40(1), the 1995 U.N. Fish Stocks Agreement entered into force 30 days

5

For the information, visit the web site of the FAO at: http://www.fao.org/legal/ treaties/012s-e.htm. 6 FRANCISCO ORREGO VICUNA, THE CHANGING INTERNATIONAL LAW OF HIGH SEA FISHERIES 289 (1999). 7 Andrew Serdy, The Submerged Entry into Force of the United Nations Fish Stocks Agreement, INTERNATIONAL FISHERIES BULLETIN, No. 22, 2001. 8 S.H. Marashi, The Role of FAO Regional Fishery Bodies in the Conservation and Management of Fisheries, FAO FISHERIES CIRCULAR FIPL/C916, Rome, FAO, 1996, para. 9.

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Table 7.1. Status of the 1993 Compliance Agreement As of June 2004 Participant

Acceptance

Argentina Barbados Benin Canada Chile Cyprus Egypt European Community Georgia Ghana Japan Madagascar Mauritus Mexico Morocco Myanmar Namibia Norway Peru Republic of Korea St. Kitt & Nevis St. Lucia Seychelles Sweden Syrian Arab Republic Tanzania United States of America Uruguay

Jun 24, 1996 Oct 26, 2000 Jan 4, 1999 May 20, 1994 Jan 23, 2004 July 19, 2000 August 14, 2001 Aug 6, 1996 Sep 7, 1994 May 12, 2003 Jun 20, 2000 Oct 26, 1994 May 27, 2003 Mar 11, 1999 Jan 30, 2001 Sep 8, 1994 Aug 7, 1998 Dec 28, 1994 Feb 23, 2001 April 24, 2003 Jun 24, 1994 Oct 23, 2002 April 7, 2000 Oct 25, 1994 Nov 13, 2002 Feb 17, 1999 Dec 19, 1995 Nov 11, 1999

Source: http://www.fao.org/legal/treaties/012s-e.htm

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after the date of Malta’s deposit of the instrument, that is, December 11, 2001.9 The entry into force of the 1995 U.N. Fish Stocks Agreement is considered a “highly significant event for the international law of high seas fisheries”;10 it marks “a new era in international fishery management”;11 and is believed helpful to “promote responsible fishing practices on the high seas, thus benefiting all fishing nations who depend on healthy and abundant fisheries resources.”12 If properly implemented by its various parties, the 1995 U.N. Fish Stocks Agreement “would revolutionize the management and conservation of world straddling and highly migratory fish stocks.”13 As of April 11, 2003, 34 states are contracting parties to this Agreement (see Table 7.2). However, 15 of the world’s top 20 distant water fishing nations (DWFNs),14 accounting for nearly 80 percent of the world catch have not yet ratified the agreement. It is warned that the effectiveness of the 1995 U.N. Fish Stocks Agreement will be seriously affected if states having the greatest impact on high seas fisheries, in particular, DWFNs, fail to ratify the agreement.15 It is thus suggested that a widespread participation of the interested coastal states and DWFNs is required if the 1995 U.N. Fish Stocks Agreement is to be successful.16 It is also believed that the role and competence of the existing sub-regional and regional fisheries management organizations (RFMOs),17 which have responsibility for conserving straddling

9

For the status of the Agreement, visit United Nations Web site at: http://www. un.org/Depts/los/ convention_agreements/convention_agreements.htm. 10 See Chris Hedley, Entry into Force of the 1995 U.N. Fish Stocks Agreement: An Initial Assessment, INTERNATIONAL FISHERIES BULLETIN No. 24 (2001). 11 John R. Schmertz and Mike Meier, “Historic Global Fisheries Agreement Enters into Force,” U.S. Department of State, Office of the Spokesman press release of December 11, 2001, International Law Update, 7:189 (2001) Or, visit the U.S. Department of State’s web site at: http://www.state.gov/r/pa/prs/ps/2001/6799.htm (last visited Feb. 18, 2004). 12 Comments made by Canadian Minister of Fisheries and Oceans Herb Dhaliwal on the entry into force of the Agreement. See Historic Global Fisheries Agreement Enters into Force, ENVIRONMENT NEWS SERVICE, December 12, 2001. 13 Giselle Vigneron, Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Straddling Fish Stocks Agreement, 10 GEO. INT’L ENVTL. L. REV. 581 (1998). 14 These states include: China, Taiwan, Peru, Japan, Chile, Indonesia, India, Thailand, the Republic of Korea, the Philippines, Malaysia, Mexico, Vietnam and Argentina, as well as the European Union, which must legally ratify the agreement for member states, including Denmark, Spain, Greece, and Portugal. 15 WWF urges top fishing nations to comply with new 1995 U.N. Fish Stocks Agreement, December 11, 2001, WWF Global Network, available at http://www.panda.org/ news_facts/newsroom/search.cfm (last visited Feb. 18, 2004). 16 See Chris Hedley, supra note 10. 17 The term “regional fisheries management organization” is used in this paper to refer to “subregional or regional fisheries management organization or arrangement” as appears in Article 7(2)(c) and Part III of the 1995 U.N. Fish Stocks Agreement. For discussion of the differences between regional fisheries organizations, regional fisheries management mechanisms, and arrangements, see Bob Applebaum and Amos Donohue, The Role of Regional Fisheries Management Organizations, in DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW 217-40 (Ellen Hey ed., 1999); Are K. Sydnes, Regional Fishe-

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Table 7.2. Status of the 1995 U.N. Fish Stocks Agreement As of June 4, 2004 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

Tonga (July 31, 1996) Saint Lucia (August 9, 1996) United States of America (August 21, 1996) Sri Lanka (October 24, 1996) Samoa (October 25, 1996) Fiji (December 12, 1996) Norway (December 30, 1996) Nauru (January 10, 1997) Bahamas (January 16, 1997) Senegal (January 30, 1997) Solomon Islands (February 13, 1997) Iceland (February 14, 1997) Mauritius (March 25, 1997) Micronesia (Federated States of) (May 23, 1997) Russian Federation (August 4, 1997) Seychelles (March 20, 1998) Namibia (April 8, 1998) Iran (Islamic Republic of) (April 17, 1998) Maldives (December 30, 1998) Cook Islands (April 1, 1999) Papua New Guinea (June 4, 1999) Monaco (June 9, 1999) Canada (August 3, 1999) Uruguay (September 10, 1999) Australia (December 23, 1999) Brazil (March 8, 2000) Barbados (September 22, 2000) New Zealand (April 18, 2001) Costa Rica (June 18, 2001) Malta (November 11, 2001) United Kingdom on behalf of Pitcairn, Henderson, Ducie and Oeno Islands, Falkland Islands, South Georgia and South Sandwich Islands, Bermuda, Turks and Caicos Islands, British Indian Ocean Territory, British Virgin Islands and Anguilla (December 10,

ries Organizations: How and Why Organizational Diversity Matters, 32 OCEAN DEV. & INT’L LAW 349 (2001); and Erik Jaap Molennar, The Concept of ‘Real Interest’ and other Aspects of Co-operation through Regional Fisheries Management Mechanisms, 15 INT’L J. MARINE & COASTAL L. 475 (2000). For a more detailed description of relevant fisheries organizations and arrangements, see S. H. Marashi, Summary Information on the Role of International Fishery and other Bodies with regard to the Conservation and Management of Living Resources of the High Seas, FAO FISHERIES CIRCULARS, No. C908, FIPL/C908, Rome 1996, and S.H. Marashi, The Role of FAO Regional Fishery Bodies in the Conservation and Management of Fisheries, FAO FISHERIES CIRCULARS. No. C916, FIPL/C916, Rome 1996.

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32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51.

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2001) United Kingdom of Great Britain and Northern Ireland (on behalf of the United Kingdom and Northern Ireland) (December 19, 2003) Cyprus (September 25, 2002) Ukraine (February 27, 2003) Marshall Islands (March 19, 2003) South Africa (August 14, 2003) India (August 19, 2003) European Community (December 19, 2003) Austria (December 19, 2003) Belgium (December 19, 2003) Denmark (December 19, 2003) Finland (December 19, 2003) France (December 19, 2003) Germany (December 19, 2003) Greece (December 19, 2003) Ireland (December 19, 2003) Italy (December 19, 2003) Luxembourg (December 19, 2003) Netherlands (December 19, 2003) Portugal (December 19, 2003) Spain (December 19, 2003) Sweden (December 19, 2003)

Source: htttp://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifica tions.htm.

and highly migratory fish stocks and managing high seas fishing activities, need to be further strengthened.18 Taiwan is the sixth largest DWFN in the world and operates the second largest fishing fleet in the Western and Central Pacific (second only to Japan). In terms of marine catch, Taiwan was listed 19th of the top 20 marine fisheries producing countries in the world in 1995.19 It is considered essential to bind Taiwan to the legal obligations regarding conservation and management of straddling and highly migratory fish stocks under the UNCLOS, the 1995 U.N. Fish Stocks Agreement, and the Compliance Agreement. However, Taiwan has not been able to participate meaningfully in global or regional fishing agreements and organizations. Taiwan is not eligible to become a party to the three most important legal instruments governing high seas fishery matters, mainly because of the complicated political factors involved and its pending international legal status. 18 Peter Orebech, Ketill Sigurjonsson, & Ted L. McDorman, The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement, 13 INT’L J. MARINE & COASTAL L. 119-120 (1998). 19 Dead Ahead—Industrial Fishing Fleets Set Course for Disaster, Greenpeace International, May 1998, available at: http://www.greenpeace.org/~oceans/globaloverfishing/deadahead.html (last visited Feb. 18, 2004).

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Taiwan has also been restricted, to a large extent, to exercise its right to participate in the RFMOs and the international negotiations over high seas fishery matters, again, because of its unique political status. Taiwan’s exclusion from participation in the international treaties and global/regional negotiation processes that deal with high sea fishery issues gives rise to an important legal question. That is, on the one hand, Taiwan is asked to abide by the provisions contained in the international treaties that exclude Taiwan from becoming a signatory to them. On the other hand, even though Taiwan agrees to be bound by the international treaties relating to high seas fisheries, it is not always entitled to the same benefits of the application of the treaties as other parties are. There exists an unbalanced situation and unfair treatment regarding Taiwan’s rights and obligations under contemporary international law, in particular, international fisheries law. In addition, Taiwan is quite often required to accept the conservation and management measures taken by the RFMOs, which reject its application for membership. The reason Taiwan’s membership application has been turned down is not for the lack of “real interest” in the fisheries concerned or Taiwan’s unwillingness to implement the adopted conservation and management measures, but rather political reasons. The Indian Ocean Tuna Commission (IOTC) is one of the RFMOs that rejected Taiwan’s application for membership.20 In order to participate in the RFMOs, Taiwan was “forced” to accept the deal or the so-called flexible arrangement worked out by the RFMO and its member states. It was also asked to use names such as “Chinese Taipei,” “fishing entity of Taiwan,” “fishing entity of Chinese Taipei,” or “separate customs territories of Taiwan, Penghu (Pescadores), Kinmen and Matsu” instead of using the country’s official name the Republic of China when participating in the work of the RFMOs concerned. Even the use of the name “Taiwan” was opposed actively and adamantly by China, which considers Taiwan one of its provinces and believes the use of the name “Taiwan” implies recognition of Taiwan’s independence.21 20

To be examined in Section V. Although the official name of the country, in accordance with its Constitution, is the Republic of China (R.O.C), the name “Taiwan” has been widely and verbally used and seen in the international press. The government of the Republic of China prefers the use of its official name, but is “forced” to accept such names as “Chinese Taipei,” “fishing entity of Taiwan,” “separate custom territory of Taiwan, Penhu, Kinmen and Matsu,” or “fishing entity of Chinese Taipei” for the exchange of participation in international governmental organizations such as the World Trade Organization (WTO) and the Asia Pacific Economic Council (APEC). It seems that international scholars are in favor of using the name “Taiwan” but not “Republic of China.” Interestingly enough, it should be mentioned that President Chen Shui-bian announced on January 13, 2002 at the 20th anniversary of the U.S.-based Formosan Association for Public Affairs (FAPA), held for the first time in Taipei, that he approved a governmental plan to add the English phrase “issued in Taiwan” to the cover of the new Republic of China passports. The reason for this change is that passport holders of the Republic of China have quite often been mistaken for citizens of the People’s Republic of China. In addition, in March 2002, Chen’s government made a decision to continue with its plan for changing the names of oversea governmental offices established in countries that do not maintain official diplomatic relations with Taiwan by using the name “Taiwan” instead of the existing names such as 21

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The purpose of this paper is to examine the legal questions relating to Taiwan’s participation in the existing RFMOs. It is organized into six sections. After this introductory section, Section II examines the key provisions of the 1995 U.N. Fish Stocks Agreement, that deal, in particular, with the duty to cooperate, the duty to work through an existing RFMO, and the duties of non-contracting parties. Section III discusses Taiwan’s rights and obligations under the U.N. Fish Stocks Agreement. This is followed by Section IV, studying Taiwan’s participation in the five selected RFMOs, namely, the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC),22 the Commission for the Conservation of Southern Bluefin Tuna (CCSBT),23 the International Commission for the Conservation of Atlantic Tunas (ICCAT),24 the Inter-American Tropical Tuna Commission (IATTC),25 and the Indian Ocean Tuna Commission (IOTC).26 The main obstacles to Taiwan’s participation in the work of IOTC and a possible solution to the lack of criteria stipulated in the IOTC Agreement for membership are dealt with in Section V. A summary and several suggestions from this writer are given in Section VI, which ends this study.

II. Key Provisions of the 1995 U.N. Fish Stocks Agreement It is beyond the scope of this paper to describe the entire content of the 1995 U.N. Fish Stocks Agreement. The provisions that follow are chosen because they are related to Taiwan’s rights to participate in and obligations to cooperate with the RFMOs that have the main responsibilities for the conservation and

Taipei Economic and Culture Representatives Office (TECRO) or Taipei Representative Office. Moreover, a group of active Taiwanese scholars who support Taiwan’s national sovereignty are organizing a so-called “name-correcting campaign,” aimed at removing the word “Chinese” or “China” from the names of the existing banks or corporations controlled by the government; they advocate replacing the word “Chinese” or “China” by the word Taiwan. See Liberty Times (Taipei), January 14, 2002; “Combined News Report,” in FAPA’s web site at: http://www.fapa.org/FAPA20th@2002/newsreport.html (last visited Feb. 18, 2004). 22 For summary information on the WCPFC, see “Internet Guide to International Fisheries Law” available at: http://www.oceanlaw.net/orgs/westpac.htm (last visited Feb. 18, 2004). 23 For summary information on the CCSBT, see Internet Guide to International Fisheries Law, id. 24 For summary information on the ICCAT, see Internet Guide to International Fisheries Law, id. See also International Agreements Concerning Living Marine Resources of Interest to NOAA Fisheries, 2001, International Fisheries Division (F/SF4), Office of Sustainable Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, 3-24. 25 For summary information on the IATTC, see Internet Guide to International Fisheries Law, supra note 22; see also International Agreements Concerning Living Marine Resources, supra note 24, at 48-52 26 For summary information on the IOTC, see Internet Guide to International Fisheries Law, id.

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management of tuna stocks in the Indian Ocean, the Pacific Ocean and the Atlantic Ocean.

A. The Role of RFMOs Under existing international law, and within the current paradigm for the management of straddling, highly migratory and high seas fish stocks, RFMOs provide the only realistic mechanism for enhanced international cooperation for their conservation and management. The U.N. Fish Stocks Agreement empowers RFMOs with a prominent role in conserving and managing straddling and highly migratory fish stocks. Applebaum and Donohue therefore suggest that the U.N. Fish Stocks Agreement can be considered a “great leap forward” for the role of RFMOs in the conservation and management of marine fish stocks. 27 Indeed, most of the substantive provisions of the U.N. Fish Stocks Agreement are to be implemented by and through RFMOs. Under Article 10(b) of the agreement, states are required, through the RFMOs, to “agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort.” Under Article 20(1), states are required to cooperate with RFMOs “to ensure compliance with and enforcement of subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks.” The U.N. Fish Stocks Agreement also confers on members of RFMOs the right to enforce the adopted conservation and management measures on the high seas against vessels of state parties to the Agreement whether or not they are members of the relevant RFMOs. Under paragraph 2 of Article 21, states must, through RFMOs, establish procedures for boarding and inspection of the fishing vessels of any state party present in the high seas areas covered by the relevant RFMO. Pursuant to Article 21(11)(i), RFMOs, in accordance with the procedures they established, may specify other serious violations, in addition to those set out in sub-paragraphs (a) to (h), which, if committed, activate the enforcement measures provided in paragraph 8.28

27

Applebaum and Donohue, supra note 17, at 217. These violations include: “(a) fishing without a valid license, authorization or permits issued by the flag State in accordance with article 18, paragraph 3(a); (b) failing to maintain accurate records of catch and catch-related data, as required by the relevant subregional or regional fisheries management organization or arrangement, or serious misreporting of catch, contrary to the catch reporting requirements of such organization or arrangement; (c) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established by the relevant subregional or regional fisheries management organization or arrangement; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures.” See Article 21(11) of the U.N. Fish Stocks Agreement. 28

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B. The Obligation to Co-operate with RFMOs The obligation to cooperate with RFMOs is laid down in paragraph 3 of Article 8 of the U.N. Fish Stocks Agreement, which provides that Where a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement. States having a real interest in the fisheries concerned may become members of such organization or participants in such arrangement. The terms of participation in such organization or arrangement shall not preclude such States from membership or participation; nor shall they be applied in a manner which discriminates against any State of group of States having a real interest in the fisheries concerned.

To enforce the paragraph just quoted above, paragraph 4 of Article 8 restricts access to the fishery resources under the regulations of RFMOs to those states that are members of the relevant RFMO or that agree to apply the conservation and management measures established by such an RFMO. Under Article 13, states are obligated to cooperate to strengthen existing RFMOs. Pursuant to Article 14, states are required to cooperate, either directly or through RFMOs, to collect scientific data to facilitate effective stock assessment and to strengthen scientific research capacity in the field of fisheries and promote scientific research related to the conservation and management of straddling and highly migratory fish stocks.

C. Obligations for Non-Parties under the U.N. Fish Stocks Agreement Several provisions in the 1995 U.N. Fish Stocks Agreement deal directly with obligations for non-parties to the Agreement. Paragraph 3 of Article 17 provides that States which are members of a subregional or regional fisheries management organization or participants in a subregional or regional fisheries management arrangement shall, individually or jointly, request the fishing entities referred to in article 1, paragraph 3, which have fishing vessels in the relevant area to cooperate fully with such organization or arrangement in implementing the conservation and management measures it has established, with a view to having such measures applied de facto as extensive as possible to fishing activities in the relevant area. Such fishing entities shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with conservation and management measures in respect of the stocks.

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Paragraph 1 of Article 33 of the U.N. Fish Stocks Agreement reinforces paragraph 3 of Article 17 by obligating states parties to the agreement to encourage non-parties to become parties and to adopt laws and regulations consistent with the provisions of the agreement. In addition, under paragraph 2 of Article 33, state parties are required to take measures consistent with the agreement and international law to deter the fishing activities undertaken by vessels flying the flag of non-parties, which undermine the effective implementation of the U.N. Fish Stocks Agreement.

III. Taiwan’s Rights and Duties under the UN Fish Stocks Agreement Article 1 (3) of the U.N. Fish Stocks Agreement provides that the Agreement “applies mutatis mutandis to other fishing entities whose vessels fish on the high seas.” This paragraph is widely regarded as a reference to Taiwan.29 The term “fishing entities” has been accepted as a designation intended to cover Taiwan with a goal of avoiding opening up questions of state or government recognition. The usage has been followed in a number of instruments that deal with fishery matters. For instance, paragraph 3.3.1 of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOAIUU) defines the term “unregulated fishing” as those fishing activities conducted in the area of application of a relevant RFMO “by vessels without nationality, . . . or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization” (emphasis added).30 Under paragraph 2 of Article 9 of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean,31 a “fishing entity” referred to in the U.N. Fish Stocks Agreement may participate in the work of the WCPFC to be established after the entry into force of the Convention.32 29 For example, see Lodge, supra note 1, at 31; Violanda Botet, Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean, 41 VA. J. INT’L L., 787 (2001); William Edeson, The International Plan of Action on Illegal Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, 16 INT’L J. MARINE & COASTAL L. 620 (2001); Moritaka Hayashi, The 1995 Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention, 29 OCEAN & COASTAL MGMT. 51, 59 (1995). 30 For the text of the International Plan of Action, visit U.N. FAO’s Web site at: http://www.fao.org/. 31 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, and Final Act, September 5, 2000, 40 ILM 278 (2001) (not yet in force). 32 In accordance with Article 9 of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, the Commission for the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC) is to be established after the entry into force of the convention, which requires (a) three states situated north

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Article 1(2)(b)(i) of the U.N. Fish Stocks Agreement provides that the Agreement applies mutatis mutandis “to any entity referred to” in Article 305, paragraph 1 (c), (d) and (e), of the 1982 UNCLOS “which becomes a Party to this Agreement, and to that extent ‘States Parties’ refers to those entities.” Under Articles 38 and 39, “the other entities,” referred to in Article 1, paragraph 2(b) of the U.N. Fish Stocks Agreement, are eligible to become a party through ratification of or accession to the agreement. However, there is no provision in Article 38 or Article 39 for a “fishing entity” to become a party to the agreement. Accordingly, Taiwan can become a party to the U.N. Fish Stocks Agreement only if it is a state or one of the entities referred to in Article 1, paragraph 2(b). The entities referred to in Article 1, paragraph 2(b) of the U.N. Fish Stocks Agreement are the ones listed in Article 305(1) and Annex IX of the 1982 UNCLOS, i.e., self governing associated states and territories, and international organizations which have competence over matters covered by the agreement. Taiwan cannot become a party to the agreement by referring to Article 1, paragraph 2(b), because it is not considered to be a self-governing associated state or territory, or to be international organization. In theory, I would contend, Taiwan is entitled to become a party to the U.N. Fish Stocks Agreement, mainly because it is indeed a state, if not de jure, it is at least de facto. It thus, in my view, satisfies all the generally accepted criteria for statehood, that is, a population, if a territory under its control, a government, and the capacity to enter into international relations independently of any other government. But in reality, Taiwan maintains diplomatic relations with only 28 states in the world and is not recognized by the vast majority of the international community as an independent, sovereign state. As a result, it is extremely difficult for Taiwan to claim its statehood33 and thus refer to Articles 38 and 39 to become a party to the Agreement. Taiwan’s appeal to participate in the agreement bearing the status of “sui generis state” or “sui generis entity” no doubt will also encounter political obstacles, at least under the current situation in international relations. By reading Article 1 and Articles 37, 38, and 39 of the U.N. Fish Stocks Agreement together, it can be understood that Taiwan is not eligible to become a party to the Agreement. But under Article 1(3), Taiwan is still bound by the Agreement, because this specific paragraph is widely regarded as having been incorporated for the specific purpose of Taiwan. This creates an unbalanced situation between Taiwan’s rights and duties under the U.N. Fish Stocks Agreement and gives rise to a legal issue concerning pacta tertiis nec nocent nec prosunt.34 Being a non-party to the U.N. Fish Stocks Agreement, Taiwan may of the 20 degree parallel of north latitude, and (b) seven states situated south of the 20 degree parallel of north latitude to ratify, accept, approve, or accede to the convention. However, if, within three years of its adoption, the convention has not been ratified by three of the states situated north of the 20 degree parallel of north latitude, this Convention should enter into force six months after the deposit of the 13th instrument of ratification, acceptance, approval or accession. See Article 36 (1) (2), 40 ILM 278, 303 (2001). 33 Actually Taiwan could have done so, but it didn’t, mainly because of the threat of using force imposed by China. 34 This is a fundamental maxim of Roman (civil) law, which in its application to international law means that “treaties do not create either obligations or rights for third states without their consent.” See ROBERT L. BLEDSOE & BOLESLAW A. BOCZEK, THE

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still be bound by its provisions under two conditions. First, if the provisions of the agreement have achieved the status of customary international law; or second, if the parties to the agreement intended the provisions to be a means of establishing obligations and rights for Taiwan, and if Taiwan expressly accepts the obligations. Pursuant to Article 1(3) and Article 8(3) of the U.N. Fish Stocks Agreement, Taiwan is required to apply the conservation and management measures of the appropriate RFMO when Taiwan harvests straddling and highly migratory fish stocks in the areas covered by such RFMO. The wording of Article 1(3) and Article 8(3) does not make implementation of the obligation dependent upon the fishing state or “fishing entity” being either a member of the RFMO or a party to the U.N. Fish Stocks Agreement. Under Article 1(3) and Article 17(2) of the Agreement, states or “fishing entities” that are not members of an RFMO and do not comply with the conservation and management measures established by the RFMO, are not allowed to authorize vessels flying their flag to engage in fishing operations for the straddling and highly migratory fish stocks conserved and managed by the RFMO concerned. Such language contained in the provisions just cited is designed to create obligations for non-parties such as Taiwan. But mere semantics cannot overcome the pacta tertiis rule under international law, since these provisions have not achieved the status of customary international law.35 Unless Taiwan has expressly accepted the obligation, Taiwan should not be bound by the U.N. Fish Stocks Agreement. In addition, as suggested by Professor Hayashi, in all areas where the U.N. Fish Stocks Agreement departs from conventional international law—that is, the 1982 UNCLOS—the provisions of the agreement are binding only for those states and those entities referred to in paragraph 2(b) of Article 1 of the U.N. Fish Stocks Agreement that become parties to the agreement.36 As far as Taiwan’s acceptance of the application of the obligations under the U.N. Fish Stocks Agreement is concerned, the Taiwan Council of Agriculture issued a statement to the press after the entry into force of the agreement in December 2001, in which Taiwan expressed its willingness to cooperate with coastal states and DWFNs to effectively conserve and manage the straddling and highly migratory fish stocks. Taiwan’s Fisheries Administration under the Council of Agriculture also expressed its willingness to make adjustments to its domestic conservation and management measures in accordance with the provisions of the U.N. Fish Stocks Agreement, and to take actions to help high seas fishery operators understand and abide by the relevant provisions contained in

INTERNATIONAL LAW DICTIONARY 259 (1987). The pacta tertiis rule was codified in Article 34 of the Vienna Convention on the Law of Treaties, May 23, 1969, entered into force January 27, 1980, 1155 UNITED NATIONS TREATY SERIES 331. For an excellent paper discussing the pacta tertiis rule and the U.N. Fish Stocks Agreement, see Erik Franckx, Pacta Tertiis and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks & Highly Migratory Fish Stocks, FAO LEGAL PAPERS, Online #8, June 2000. 35 See Orebech, Sigurjonsson, & McDorman, supra note 18, at 124. 36 Hayashi, supra note 29, at 66.

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the Agreement.37 Accordingly, even though Taiwan is not a party to the U.N. Fish Stocks Agreement, it has expressed its intent to fulfill its duty under Article 17 of the U.N. Fish Stocks Agreement to cooperate with the conservation and management measures for straddling and highly migratory fish stocks. The conservation and management measures established by RFMOs will also be applied de facto by Taiwan, but subject to the condition that Taiwan’s participatory right in the RFMO concerned is respected, and that Taiwan’s real interest in the fisheries concerned will not be discriminated against. Taiwan will also take actions to fulfill its obligation under Article 18(1) of the agreement, ensuring that its vessels do not engage in any activity that undermines the effectiveness of internationally agreed conservation and management measures. In addition to the U.N. Fish Stocks Agreement, it should also be mentioned that Taiwan’s Ministry of Foreign Affairs issued a press statement in April 1996, expressing the government’s intent to abide by the 1982 UNCLOS, even though Taiwan is not eligible to become a party to the Convention. Taiwan’s acceptance of the application of the provisions of the 1982 UNCLOS is conditioned on the principles of non-discrimination and universalism.38 Accordingly, Taiwan accepts that it is bound by the U.N. Fish Stocks Agreement not as a party to the agreement, but because of its government’s policy. This is an act taken voluntarily, but not because of bearing legal obligations under the Agreement. However, it should be noted that Taiwan’s consent to be bound by the agreement is based on the condition noted earlier, i.e., the parties to the U.N. Fish Stocks Agreement must have intended the provisions to be a means of establishing not only obligations but also rights for Taiwan. Thus, when state parties to the U.N. Fish Stocks Agreement and the relevant RFMOs ask Taiwan to cooperate to conserve the straddling and highly migratory fish stocks in accordance with the agreement, they should also recognize Taiwan’s right to become a member of the RFMO concerned. As stipulated in paragraph 3 of Article 8 of the U.N. Fish Stocks Agreement, states and Taiwan (applying mutatis mutandi to other fishing entities) having a real interest in the high seas fisheries concerned, are eligible to become members of RFMOs that have the competence to establish conservation and management measures for highly migratory fish stocks. In addition, if Taiwan is bound by the agreement, it should also be entitled to the benefits of the Agreement, in particular, those concerning the allocation right of total allowable catch (TAC) decided by the relevant RFMO in the area where vessels flying the flag of Taiwan are harvesting the straddling and highly migratory fish stocks. In that regard, under paragraph 3 of Article 17 of the agreement, Taiwan should “enjoy benefits from participation in the fishery commensurate with” its commitment to comply with the conservation and management measures in respect of the straddling and highly migratory fish stocks established by the RFMOs concerned. Finally, if state parties to the U.N. Fish Stocks Agreement decide to take measures to deter fishing activities conducted by vessels flying the flag of Taiwan on the high seas on the ground that the fishing activities concerned undermine the effective implementation of 37 See Press Release, the Fisheries Administration of the Council of Agriculture, No. 137, December 24, 2001. 38 See Press Release, the Ministry of Foreign Affairs, April 19, 1996.

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the U.N. Fish Stocks Agreement, the measures taken must be consistent with the agreement and international law, which is explicitly regulated in Article 33(2) of the agreement.

IV. Taiwan’s Participation in the Four Selected RFMOs From Taiwan’s perspective, to secure equal status and full participation and to make sure Taiwan’s obligations commensurable with its rights are the two most important considerations for Taiwan’s participation in the RFMOs. Before declaring its desire to join an RFMO, Taiwan will consider: (1) whether its participatory rights are respected, in particular the right to allocation of TAC, set already or to be set by the RFMO concerned, and the right to participate in the RFMO’s decision-making process regarding the establishment of conservation and management measures; (2) whether it would it be able to take part in the work of the RFMOs with the same rights and obligations as other members of the RFMOs; and (3) by carrying what status and under what names when participating in the RFMO. One of the major obstacles to Taiwan’s participation in the RFMOs arises from the provisions stipulated in the convention or agreement that establishes a RFMO. Under Article 14 of the ICCAT Convention, for example, only members of the U.N. or any specialized agency of the U.N. are eligible to become member of the ICCAT.39 Since Taiwan is not a member of the U.N. or any specialized agency of the UN, it is excluded from obtaining membership in the ICCAT. Another obstacle that Taiwan has encountered is the provisions that require statehood for joining the organization. Under Article 18 of the CCSBT Convention, “[a]fter the entry into force of this Convention, any other State, whose vessels engage in fishing for southern bluefin tuna . . . may accede to it” (emphasis added).40 Since Taiwan’s statehood remains a pending issue in international relations, and since all members of the CCSBT do not maintain diplomatic relations with Taiwan, it is difficult for Taiwan to accede to the CCSBT. As a result, a number of special arrangements have been proposed and made to help engage Taiwan in the work of the RFMOs. These arrangements include the establishment of an “Extended Commission or Extended Scientific Committee,”41 the signing an agreement for the participation of fishing entities,”42 the creating of a status of “cooperating party”43 or “cooperating party/entity/fishing entity”44 or “the cooperating non-contracting party,”45 and so on. In addition, mainly be39 International Convention for the Conservation of Atlantic Tunas (TIAS 6767), 20 U.S.T. 2887 (1969), 673 UNTS 63. See also ICCAT’s Web site at: http://www.iccat.es/. 40 Convention for the Conservation of Southern Bluefin Tuna, signed at Canberra on May 10, 1993, entered into force May 20, 1994. Australia, New Zealand, and Japan are the three original members of the Commission established by the Convention. For the text, visit: http://www.ccsbt.org/ (last visited Feb. 18, 2004). 41 In the case of the CCSBT. 42 In the case of the WCPFC. 43 In the case of the CCSBT. 44 In the case of the ICCAT. 45 In the case of the IOTC.

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cause of the sensitive political questions involved and active and adamant opposition from China, Taiwan is forced not to use its official name, the Republic of China, and instead uses different names such as “Chinese Taipei,”46 or “fishing entity of Taiwan.”47 In this section, the current status regarding Taiwan’s participation in the WCPFC, CCSBT, ICCAT, and IATTC are examined. The obstacles to Taiwan’s participation in the IOTC will be discussed in Section V.

A. WCPFC The western and central Pacific Ocean is one of the very few ocean regions in the world that have not been subject to regulation by an international tuna organization in which coastal states and fishing states in the region are members. To remedy this situation, in April 1994, the distant-water fishing nations (DWFNs) and the South Pacific Islands nations convened the first session of the Multilateral High Level Conference on South Pacific Tuna Fisheries (MHLC) to jointly investigate the feasibility of establishing an organization for the sustainable management and development of regional tuna fisheries. In 1995, after the entry into force of the 1982 LOSC and the adoption of the U.N. Fish Stocks Agreement, the DWFNs and South Pacific Island nations entered into further discussions; and these led to the second session of the MHLC (renamed as the Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific), which was convened in 1997. From this and additional sessions emerged the WCPFC Convention and the Final Act of the MHLC, adopted on September 5, 2000. Taiwan has the second largest tuna fishing fleet operating in the western and central Pacific; and being one of the major DWFNs in the world, Taiwan was invited and participated actively in all sessions of the MHLC, except the first one. Taiwan attended the MHLC with the stated goal of signing any agreement that the MHLC might adopt. By signing the adopted agreement or convention and thus ratifying the instrument, Taiwan would become a member of the WCPFC, to be established after the entry into force of the agreement or convention, with the same rights and obligations as other members. In addition, while attending the MHLC, Taiwan intended to use the name “Taiwan/ROC” or “Taiwan,” but this was not accepted by the conference. As a result, Taiwan compromised by accepting the name “Chinese Taipei” for its attendance at the MHLC. Taiwan’s participation in the fisheries arrangement in the western and central Pacific was considered the most difficult issue of all that the MHLC addressed.48 Mainly in response to China’s action in raising political issues during the discussion in the conference, Ambassador Satya N. Nandan, chairman of the conference, urged all participants to avoid divisive political issues and to concentrate upon achieving the main objective, viz., “to agree on a regime for the

46

In the case of the WCPFC. In the case of the CCSBT. 48 Lodge, supra note 1, at 30. 47

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conservation and management of the highly migratory species in the central and western Pacific.”49 He further asked for restraint on all sides in the matter.50 The WCPFC Convention was adopted by 19 votes in favor, with two opposed (Japan and South Korea), and three abstentions (China, France, and Tong). Eleven participating countries (Cook Islands, Federate States of Micronesia, Fiji, Marshall Islands, New Zealand, Palau, Philippines, Samoa, Tuvalu, the U.S., and Vanuatu) signed the agreement on September 5, 2000. Taiwan signed on the same day the Arrangement for the Participation of Fishing Entities, which enables it to participate in the work of the commission created by the convention, including decision-making on matters stated in the convention.51 China opposed giving membership status to Taiwan and other “fishing entities” to which membership was extended. China also opposed the inclusion of the South China Sea into the catch area. In addition, China has concerns about rules that allow observers to board vessels. South Korea opposed the adoption of the convention because many outstanding issues had not been addressed by the convention.52 Japan voted against the adoption of the agreement based on the following grounds: (1) the convention excludes a number of states with a real interest in the fisheries of the area; (2) the boundaries of the convention area are not defined; (3) there is overlapping jurisdiction in terms of area and species with other already existing fisheries agreements; (4) the procedures established by the convention will not provide timely conservation decisions, and (5) the convention does not adequately take account of the different biological, socioeconomic and cultural natures of fisheries in the area north of 20 degree north.53 Before the Preparatory Conference for the Establishment of the WCPFC, held in Christchurch, New Zealand in April 2001, Japan submitted a proposal to discuss improvement of the convention, but it was rejected. As a result, Japan refused to attend the preparatory conference. Japan did not attend the second preparatory conference either, which was held in Madang, Papua New Guinea from February 25 to March 1, 2002. The third Preparatory Conference was held in Manila, Philippines from November 18 to 22, 2002, and the fourth in Nadi, Fiji Islands, May 5-9, 2003. Taiwan’s Ministry of Foreign Affairs and Council of Agriculture consider its participation in the WCPFC as having “quite positive implications for [Taiwan’s] bid to join other international fishing organizations and functional organizations.”54 However, it should be noted that Taiwan failed to accomplish its 49

Opening Remarks by the chairman, supra note 1. Id. 51 See Article 9(2) and Annex I (Fishing Entities) of the WCPFC Convention and the “Arrangement for the Participation of Fishing Entities.” 52 Pacific Nations Adopt Tuna Treaty, FISHERIES INFORMATION NEWSLETTER #94 (July-September 2000), available at: http://www.spc.int/coastfish/News/Fish_News/ 94/NIAR_1.htm (last visited Feb. 18, 2004). 53 See Japanese View on the Fisheries Convention for the Western and Central Pacific” in ECONOMIC REPORTS, Embassy of Japan, available at: http://www.nz.embjapan.go.jp/economic/fishconvention.htm (last visited Feb. 18, 2004). 54 The Current State of ROC Diplomacy, An Abridgment of the Report by Foreign Minister Dr. Hung-mao Tien to the Foreign and Overseas Chinese Affairs Committee, Legislative Yuan, September 27, 2000. 50

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goal regarding signing the WCPFC Convention and becoming a contracting party to it. Its demand for using the name of Taiwan/ROC, or Taiwan was not met either. The instrument Taiwan signed will become effective only after the entry into force of the WCPFC Convention. In addition, some Taiwanese scholars have questioned whether the conclusion of the MHLC, the adoption of the WCPFC Convention, and the signing of the Arrangement for Participation of Fishing Entities have indeed established a useful precedent or good model for Taiwan’s bid to participate in functional inter-government multilateral organizations and RFMOs. In any case, Taiwan has participated, and will participate actively in the Preparatory Conference for the Establishment of the WCPFC and the work of the commission after its establishment, probably in 2004.

B. CCSBT Taiwan is one of the major DWFNs that harvest Southern Bluefin Tuna (SBT). During the period of time between 1989 and 1996, Taiwan’s annual SBT total catches were in the order of between 959 tonnes and 1,610 tonnes.55 Since the establishment of the CCSBT in May 1994, Taiwan has been invited to attend meetings of the CCSBT as an observer in accordance with Article 14 of the CCSBT Convention and Rule 3 of its Rule of Procedures. Although Taiwan is not a member of the CCSBT, domestic measures have been taken to comply with the resolutions adopted by the Commission, which include imposing a voluntary catch limit, providing catch statistics, participating in scientific research on SBT, and participating in the CCSBT’s trade information scheme. Since 1994, Taiwan has declared its desire to become a full member of the CCSBT. However, in accordance with Article 18 of the CCSBT Convention, and because of the political issues involved, the three members of the CCSBT, namely Australia, New Zealand, and Japan were not in a position to have Taiwan accede to the CCSBT Convention and become a full member of the commission. In 1998, the CCSBT adopted the Action Plan concerning Promotion of Accession to, and Cooperation with, CCSBT by Non-Member States and Entities, in which the commission renewed its call for non-members fishing for SBT to honour their international obligations and cooperate in the conservation and management of SBT, to respect the competence of the Commission, and, inter alia, to “accede to the Convention or decide to apply the conservation and management measures currently adopted by the Commission with regard to southern bluefin tuna.”56 The Action Plan also indicated that no more than 2,550 tonnes of SBT should be taken by non-members that have acceded to the CCSBT Conven-

55 See Shui-kai Chang, et al., “Review of Taiwan SBT Fishery of 1999/2000,” a report submitted to the seventh annual meeting of the CCSBT, held in Sydney, Australia, April 18-21, 2001. 56 The Action Plan can be found in the Report of the Resumed Fourth Annual Meeting of the Commission for the Conservation of Southern Bluefin Tuna, Canberra, Australia, January 19-22, 1998, Attachment F.

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tion or decided to apply the Commission’s conservation and management measures.57 In recognition of the need to involve Taiwan in the conservation and management mechanism for SBT, the CCSBT and representatives from Taiwan have conducted intensive consultations since 1998. The CCSBT proposed a “cooperating party” status that allowed Taiwan to participate in the work of the commission. But Taiwan had problems accepting the proposal.58 In response, Taiwan indicated that if membership were not seriously considered by the CCSBT, it would be difficult to maintain full cooperation with the Commission regarding management arrangements.59 Accordingly, the CCSBT convened a special meeting in November 2000, at which the chair reported that the CCSBT had made a proposal to Taiwan setting out a mechanism to secure Taiwan’s early participation in the Commission. This proposal was believed to be “the most serious efforts by Commission Members to take account of Taiwan’s concerns”60 and provided for Taiwan’s participation on the same footing as existing members.61 This was followed by adopting the “Resolution to Establish an Extended Commission and an Extended Scientific Committee” at the seventh annual meeting of the CCSBT on April 20, 2001.62 The Extended Commission and Extended Scientific Committee were established in accordance with Articles 8.3(b) and 15.4 of the CCSBT Convention. Members of the Extended Commission and Extended Scientific Committee are comprised of “the Parties to the Convention and any entity or fishing entity, vessels flagged to which have caught SBT at any time in the previous three calendar years” (emphasis added).63 Mainly because the resolution is a decision made by the CCSBT in pursuant to Article 8.3(b) of the CCSBT Convention and therefore should be binding on the parties to the CCSBT Convention, and based on a letter issued by the CCSBT, assuring Taiwan that its participatory rights will be the same as other members of the Extended Commission, in particular, in decision-making of the Extended Commission related to cooperative work under the CCSBT Convention,64 Taiwan accepted the arrangement. Brian Macdonald, the 57

Id., para. 2. See Record of Discussions between the Commission and Representatives of Taiwan, Report of the Fifth Annual Meeting of the CCSBT, Second Part, May 10-13, 1999, Tokyo, Japan, Attachment G. 59 Agenda Item 6: Relationship with Non-members, id. 60 See Report of the Special Meeting of the CCSBT, Canberra, Australia, November 16-18, 2000, para. 13. 61 Id. 62 For the text of the resolution, see Report of the Seventh Annual Meeting of the Commission, April 18-21, 2001, Sydney, Australia, Attachment I. 63 Paragraph 1 of Resolution to Establish an Extended Commission and an Extended Scientific Committee, id. 64 The Executive Secretary of the CCSBT assured Taiwan’s Fisheries Administrator that “all Members of the Extended Commission that are not Members of the Commission are entitled to enjoy the same rights and obligations with the other Members of the Extended Commission in decision-making of the Extended Commission related to work under the Convention.” In addition, the Executive Secretary drew to the Administrator’s attention provisions of the Resolution to Establish An Extended Commission and An Extended Scientific Committee that provide a strong practical assurance of the rights of 58

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Executive Secretary of the CCSBT, accordingly, began the Exchange of Letters in early January 2002, inviting Taiwan to express its willingness to become a member of the Extended Commission. As far as the issue regarding what name would be used by Taiwan when participating in the Extended Commission, the CCSBT proposed the use of “Fishing Entity of Chinese Taipei,” which was not accepted by Taiwan and was later replaced by “Fishing Entity of Taiwan.” Taiwan became a member of the Extended Commission on August 30, 2002. Mainly because of the wording of Article 8.3(b), stating that “the Commission may, if necessary, decide upon other additional measures,” and the provision of Article 15(4), stipulating that the parties to the CCSBT “shall cooperate in taking appropriate action, consistent with international law and their respective domestic laws, to deter fishing activities for southern bluefin tuna by nationals, residents or vessels of any State or entity not party to this Convention where such activity could affect adversely the attainment of the objective of this Convention,” the resolution on the establishment of the Extended Commission and the Extended Scientific Committee was adopted in April 2001. In addition, mainly because China is not a member of the CCSBT and the CCSBT has used the name “Taiwan” since the establishment of the CCSBT in 1994, Taiwan’s preference for using the name “Fishing Entity of Taiwan,” instead of the name “Fishing Entity of Chinese Taipei,” as suggested by the Commission, was accepted. In addition, while Taiwan failed to persuade members of the CCSBT to offer it a quota of 1,450 tonnes of total SBT annual catch, Taiwan was able to obtain the allocation of quota of 1,140 tonnes, which is the same as the quota offered by the CCSBT to its new member, the Republic of Korea, which joined the Commission on October 17, 2001.

C. ICCAT Under Article 14 of the International Convention for the Conservation of Atlantic Tuna, membership in the U.N. or in any specialized agency of the U.N. is required to apply for membership in the commission (ICCAT). Since Taiwan is not a member of the U.N. and not a member of any specialized agency of the UN, it cannot accede to the ICCAT Convention. However, under Article 11(3), Taiwan is eligible to attend meetings of the commission and its subsidiary bodies by sending observers. Since 1972, Taiwan has been invited to send observers to attend the Commission’s annual and other relevant meetings. In 1994, the Resolution on Coordination with Non-Contracting Parties was adopted by the ICCAT. Paragraph 1 of the Resolution provides that The Executive Secretary of ICCAT shall contact all non-Contracting Parties known to be fishing in the Convention Area for species under the competence of the Convention to urge them to become Contracting Parties or “Cooperating all Members of the Extended Commission in decision-making. In particular, paragraph 4 of the resolution provides that decisions reported from the extended Commission to the commission (CCSBT) will become decisions of the commission unless the commission decides to the contrary.

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Yann-huei Song Parties.” A Cooperating Party shall be defined as a non-Contracting Party that does not hold membership in ICCAT as a Contracting Party but voluntarily fishes in conformity with the conservation decisions of ICCAT.65

In addition, cooperating parties may attend the meetings of ICCAT as observer.66 In 1997, another resolution entitled “Becoming a Cooperating Party, Entity or Fishing Entity” was adopted by the ICCAT at its 15th annual meeting. According to paragraph 1 of the resolution, each year, the executive secretary of ICCAT “shall contact all non-contracting parties, entities or fishing entities known to be fishing in the Convention area for species under ICCAT competence to urge each of them to become a Contracting Party to ICCAT or to attain status as a Cooperating Party, Entity or Fishing Entity.”67 In April 1998, Taiwan submitted its application for the status as a cooperating party/entity/fishing entity to the ICCAT, which was accepted by the commission at the 11th Special Meeting, held in November 1999. However, it was asked that the name “Taiwan,” which had been used from 1972 to 1996, to be replaced with “Chinese Taipei” at the 15th annual meeting of the commission, mainly because China became a member of the ICCAT in 1996. Under paragraph 1 of the 1997 ICCAT Resolution on Becoming a Cooperating Party, Entity or Fishing Entity, it is required to apply for a renewal of the Cooperating Party/Entity/Fishing Entity status. This created problems for Taiwan. Accordingly, Taiwan submitted a proposal at the Commission’s 12th Special Meeting, held in Marrakesh in 2000, asking for exemption from the requirement of renewing its cooperating party/entity/fishing entity status every year. China raised a “point of order” issue and asked that the proposal be deferred to the next meeting for further discussion.68 At the 17th annual meeting of the ICCAT, the proposal was discussed again and then approved. In addition, at the same meeting, Taiwan, bearing the status of cooperating party/entity/fishing entity, was assured the right to participate in the catch quota allocation scheme to be set up by the ICCAT in the future.69 While Taiwan is not eligible to become a contracting party to the ICCAT Convention and cannot become a full member of the Commission, it has been invited to participate in the work of the Commission since 1972. Taiwan’s participation in the ICCAT is made possible mainly because the ICCAT adopted two resolutions, in 1994 and 1997, respectively, which urge non-contracting parties to accede to the ICCAT Convention or become cooperating parties. This 65

See Compendium of Management Recommendations & Resolutions Adopted by ICCAT for the Conservation of Atlantic Tunas and Tuna-like Species, COMSCRS/01/10, October 2001, at 85. 66 Para. 3 of Resolution by ICCAT on Coordination with Non-Contracting Parties, id. 67 Para. 1 of Resolution by ICCAT on Becoming a Cooperating Party, Entity or Fishing Entity, supra note 65, at 104. 68 See Peter Ho, The Impact of the Resolutions Adopted at the ICCAT Meeting on Taiwan’s Tuna Fisheries, INTERNATIONAL FISHERIES INFORMATION, No. 98, January 2001, at 46 (in Chinese). 69 Taiwan Obtained Substantial Interests in the Atlantic Tuna Fisheries, NEW FISHERIES, No. 105: 5 (December 2001, at 18-19) (in Chinese).

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was done based on the recognition that the problem of ensuring sustainability of tuna and tuna-like resources in the Atlantic Ocean cannot be resolved properly unless all states, entities, or fishing entities fishing the highly migratory fish stocks work together cooperating through the commission. From the perspective of Taiwan, there is a need to push for upgrading its participating status from cooperating party/entity/fishing entity to contracting party, which would require an amendment to the ICCAT Convention, and is believed to be a big challenge to Taiwan in the future.

D. IATTC Approximately 40 to 50 vessels from Taiwan conduct tuna fishing activities in the Convention Area of the IATTC every year with an annual catch of 5,000 tons. Taiwan is not eligible to become a full member of the IATTC for political reasons; hence Taiwan has participated in the work of the IATTC since 1973 only as an observer.70 In its observer status, Taiwan has been cooperating with the commission in the implementation of conservation and management measures established by the IATTC. The IATTC established a working group at the 61st annual meeting of the IACCT, with the objective of revising its convention to allow the accession of the regional economic integration organizations, such as the European Union, and the participation of Taiwan. Taiwan expressed its desire to become a full member of the commission in 1998 and pushed for inclusion of “separate customs territories” in the definition of the term “Contracting Parties” in the new IAATC Convention. The 7th meeting of the Working Group took place in September 2001. The main item on the agenda was the discussion of the draft consolidated text. One of the main purposes of revising the convention is to allow the accession of the European Union, although there is not as yet total agreement amongst the parties as to how this is to be achieved. The modality for Taiwan’s participation in the new IATTC Convention was also discussed. At the 8th meeting of the Working Group, held in February 2002, several IATTC members expressed support or Taiwan’s participating in the IATTC in the status of “contracting party” or “member of the commission.” Mexico and Venezuela opposed the proposal because of adherence to the “One China Policy” by their respective governments. It seems that the Working Group on the IATTC Convention will have difficulty including “separate customs territories” in the definition of the term “Con70

Mainly because of China’s absence from the activities of the commission, Taiwan’s participation in the IATTC under the name “Taiwan” and display of its national flag in the meeting room faced no opposition from other members of the commission. This practice began to be challenged in February 2002, when China participated for the first time in the activities of the commission, bearing an observer status. China asked the IATTC to request that Taiwan use the name “Chinese Taipei.” A compromise was made, in which the name “Taiwan” and the national flag will be retained in the official meetings of the IATTC, but during the informal meetings of the delegation heads, no flag and no name-tag will be displayed.

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tracting Parties” in the new IAATC Convention. But it is suggested that the IATTC might follow the precedents for Taiwanese participation that were established in the WCPFC and ICCAT, as discussed above. The 70th meeting of the IATTC was held in Antigua, Guatemala from June 24-27, 2003, where Taiwan’s participation in the conservation and management works of IATTC and the name to be used by Taiwan was discussed.

V. Problems Arising from Taiwan’s Efforts to Participate in the Work of the IOTC The Indian Ocean Tuna Commission is different in two respects from the four selected RFMOs discussed. First, the IOTC (established in 1996) is one of the FAO’s regional fisheries bodies, whereas the WCPFC, CCSBT, ICCAT, and IATTC are not. Second, the ICCAT, IATTC, and CCSBT were established prior to adoption of the 1995 U.N. Fish Stocks Agreement; two of them were established long before the adoption of the 1982 LOSC. Mainly because of the close relationship between the IOTC and FAO, and thus between IOTC and the U.N. system, the requirements for becoming a member of the Commission, and the qualifications for obtaining observer status for the purpose of attending the meetings of the Commission and its subsidiary bodies, are much more rigid than the other non-FAO organizations. To consider the possibilities for solution of the consequent membership problem, it is worth considering the detailed language of Article 4 of the IOTC Agreement, which provides that: 1. Membership in the Commission shall be open to Members and Associate Members of FAO (a) that are: (i) coastal States or Associate Members situated wholly or partly within the Area; (ii) States or Associate Members whose vessels engage in fishing in the Area for stocks covered by this Agreement; or (iii) regional economic integration organizations of which any State referred to in subparagraphs (i), or (ii) above is a member and to which that State has transferred competence over matters within the purview of this Agreement; and (b) that accept this Agreement in accordance with the provisions of paragraph 1 of Article XVII. 2. The Commission may, by a two-thirds majority of its Members, admit to membership any other States that are not Members of FAO, but are Members of the United Nations, or of any of its Specialized Agencies or of the International Atomic Energy Agency, provided that such States: (a) are (i) coastal States situated wholly or partly within the Area; or (ii) States whose vessels engage in fishing in the Area for stocks covered by this Agreement; and

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(b) have submitted an application for membership and a declaration made in a formal instrument that they accept this Agreement as in force or the time of acceptance in accordance with paragraph 2 of Article XVII.71 As far as the provisions relating to observers are concerned, Article 7 of the IOTC Agreement stipulates that 2. States which, while not Members of the Commission nor Members or Associate Members of FAO, are Members of the United Nations, any of its Specialized Agencies or the International Atomic Energy Agency may, upon request and subject to the concurrence of the Commission through its Chairperson and to the provisions relating to the granting of observer status to nations adopted the Conference of FAO, be invited to attend sessions of the Commission as observers. 3. The Commission may invite intergovernmental or, or request, nongovernmental organizations having special competence in the field of activity of the Commission to attend such of its meetings as the Commission may specify.72 Given the character of the foregoing provisions, Taiwan has encountered difficulties participating in the work of the IOTC. While Taiwan has been able to participate in the WCPFC, CCSBT, ICCAT, and IATTC, either in the capacity of an observer, “cooperating party,” or “member of the Commission,” it is barred from becoming a member of the IOTC or obtaining observer status to attend its meetings. Taiwan has some 300 tuna long-liners operating in the area of competence of the IOTC, with an annual catch of 110,000 tons, accounting for 35 percent of the total catch by long-liners in the Indian Ocean. In recognition of Taiwan’s important Indian Ocean fishery operations, and the need to obtain relevant fishery statistical data from Taiwan for the purposes of tuna stock assessments, the IOTC asked Taiwan in 1998 to cooperate with the commission by accepting the conservation and management measures established by the commission. In December 1998, a resolution was adopted at the Third Session of the IOTC, instructing the chairman of the commission to send a letter to all noncontracting parties known to have vessels fishing in the area of competence of the IOTC for species covered by the IOTC agreement to urge them to become contracting parties, and also instructing the Secretary of the IOTC to provide copies of all relevant resolutions adopted by the IOTC to non-contracting parties.73 A letter was accordingly drafted at the Third Session of the IOTC, and sent to 21 non-contracting governments (including Taiwan), asking them “to cooperate with the Commission and exchange information on fishing activities

71

Agreement for the Establishment of the Indian Ocean Tuna Commission, Rome, November 25, 1993, Australian Treaty Series 1996, No. 20. For the text of the Agreement, visit IOTC’s Web site at: http://www.iotc.org (last visited Feb. 18, 2004). 72 Id. 73 Resolution on Cooperation with Non-Contracting Parties, in Report of the Third Session of the Indian Ocean Tuna Commission, Mahe, Seychelles, December 9-12, 1998, IOTC/S/03/98/R[E], Appendix M, at 42.

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relating to the stocks covered by the Agreement.”74 Only Bahrain responded, however, providing information on catches of tuna and tuna-like species. In December 1999, at the Fourth Session of the IOTC, the FAO Legal Adviser reported on the progress in the consultations with China concerning data from Taiwan, noting that China had consented to permit non-governmental organization (NGO) representing the fishing interests of Taiwan to participate in IOTC meetings.75 The session also adopted a resolution entitled “On the Status of Cooperating Non-Contracting Parties,” in which it was resolved, in accordance with Article 9(1) of the IOTC Agreement, that “[a]ny non-contracting party that voluntarily ensures that vessels flying its flag fish in a manner which is in conformity with the conservation measures adopted by IOTC be defined as a Non-Contracting Party.”76 The secretary of the IOTC will contact every year all non-contracting parties know to be fishing for species which fall within the mandate of the IOTC, in order to encourage them to become contracting parties of the IOTC or to accede to the status of “Cooperating Party.” In accordance with the resolution, non-contracting parties which continue to fish for tunas in the area of competence of the IOTC and do not become cooperating parties “will be informed that pursuing their fishing activities in contravention of the management measures of IOTC, including failure to respect the obligation to declare their catches, undermines the effect of these measures.”77 Significantly, included in the resolution was a threat of introducing concrete measures to inhibit the activities of vessels of non-contracting, non-cooperating parties. Sanctions might include preventing landings and transshipments of catches of vessels of noncontracting parties that were found to be fishing in a manner not in conformity with the conservation and management measures of the IOTC.78 Following the Fourth Session of the IOTC, on December 17, 1999, the IOTC Secretary-General visited Taiwan to request its cooperation and discuss the modality of Taiwan’s participation in the work of IOTC. The next month, Taiwan’s Fisheries Administrator formally applied for membership in IOTC, but unsuccessfully. The Secretary of the Commission replied that the application was unacceptable because Taiwan did not meet the criteria for membership in IOTC as defined in Article 4(1) or Article 4(2) of the IOTC agreement. However, the secretary indicated that the commission placed great importance on maintaining the highest possible level of cooperation with Taiwan to ensure the management of Indian Ocean tuna fisheries and was willing to make very possible effort to attain a situation where such cooperation was practical. Accordingly, scientists from Taiwan were invited to attend the working group meetings in their individual capacities. Taiwan also agreed to provide the IOTC with statistical data on tuna catches and fishing efforts for the period between 1995 and 1997. 74

Draft letter, id. See Report of the Fourth Session of the Indian Ocean Tuna Commission, Kyoto, Japan, December 13-16, 1999, para. 33, at 4. 76 Resolution 99/04 On the Status of Cooperating Non-Contracting Parties, see id., Appendix XI, at 47. 77 See para. 5, id. 78 See para. 6, id. 75

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In July 2001, the secretary of IOTC Secretariat visited Taiwan for the second time to discuss possible options for Taiwan’s participating in the work of the commission. There were three options suggested by the IOTC, namely, (1) the Overseas Fisheries Development Council of the Republic of China (OFDC) would represent Taiwan and attend the regular sessions of the IOTC in the capacity of an NGO observer, provided that the part of the title “of the Republic of China” be dropped; (2) Taiwan, in accordance with the resolution adopted by the IOTC in 1999, would apply to be a “Cooperating Non-Contracting Party” to the IOTC; or (3) Taiwan would hold its application for membership until the IOTC is no longer affiliated with FAO. For the first option, Taiwan was informed that China had already accepted this arrangement. But Taiwan objected to this proposal, mainly because by definition an NGO is not a sovereign state, and as such has no management control over Taiwan’s fishing vessels, For the second option, Taiwan was not sure if rights arising from becoming a “Cooperating Non-Contracting Party” would be commensurable with its obligations to implement the conservation and management measures established by the Commission. In particular, would Taiwan be entitled to the right to allocation of allowable catch after the TAC is set by the commission in the future? In addition, it was not clear whether Taiwan would be bound by commission decisions and resolutions. Nor was it clear whether Taiwan, as a cooperating noncontracting party, would be entitled the same rights as other contracting parties of the IOTC to apply the objection procedure, as provided in paragraph 5 of Article 9 of the IOTC agreement. Finally, the IOTC is not certain whether China would agree to grant Taiwan a status of “Cooperating Non-Contracting Party” to the IOTC. As far as the last option is concerned, it remains a subject to be discussed by the commission at the future meetings, which means it will take a longer for this option to become available to Taiwan. In December 2001, the Sixth Session of the IOTC was held in Victoria, Seychelles. Two representatives from Taiwan were invited to attend the meeting in the capacity of experts. Taiwan refused to be represented by the OFDC bearing an NGO observer status. Seven resolutions were adopted at the Sixth Session of the IOTC, which deal with the national observer programs for tuna fishing in the Indian Ocean (Resolution 01/01), control of fishing activities (Resolution ½), establishing a scheme to promote compliance by non-contracting party vessels with resolutions established by IOTC (Resolution 01/03), limitation of fishing efforts of non-members of IOTC whose vessels fish bigeye tuna (Resolution ¼), mandatory statistical requirements for IOTC members (Resolution 01/05), the IOTC bigeye statistical document programme (o1/06), and the support of the IPOA-IUU plan (Resolution 01/07).79 Three representatives from Taiwan were invited again to attend the Seventh Session of the IOTC in the capacity of expert. Before the meeting was held, Taiwan’s Fishery Administration submitted its application to the IOTC Secretariat for participating in the work of IOTC bearing a cooperating party status under the name “Fishing Entity of Taiwan.” The application, however, was not included in the meeting agenda for discussion mainly because of China’s strong opposition. Nine resolutions were adopted at the meeting, which deal with the establishment of an IOTC pro79

Id., Appendix IX—Resolution Adopted by the Sixth Session of IOTC, at 35-52.

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gramme of inspection (Resolution 02/01), the establishment of a vessel monitoring system (VMS) pilot programme (Resolution 02/02), terms of reference for the IOTC Compliance Committee (Resolution 02/03), the establishment of the Standing Committee on Administration and Finance (SCAF) (Resolution 02/04), the establishment of a list of vessels presumed to have carried out IUU fishing in the IOTC Area (Resolution 02/05), the establishment of an IOTC Record of Vessels over 24 meters authorized to operate in the IOTC Area (Resolution 02/06), recommendation on the implementation of the resolution concerning the IOTC Record of Vessels (Resolution 02/07), recommendation concerning the measures to prevent the laundering of catches by IUU large-scale tuna longline fishing vessels (Resolution 02/08), and the conservation of Bigeye and Yellowfin Tuna in the Indian Ocean (Resolution 02/09). Members of the IOTC and its non-contracting cooperating parties are bound by the resolutions adopted by the Commission. Since Taiwan is not a member, nor a non-contracting cooperating party of the IOTC, it is not bound by these resolutions. After the entry into force of the 1995 U.N. Fish Stocks Agreement, could the IOTC request that Taiwan accept the conservation and management measures adopted the commission by referring to the provisions stipulated in the 1995 U.N. Fish Stocks Agreement, in particular Article 8(3) and Article 17 (3)? Again, the answer is no. First of all, Taiwan is not a contracting party to the 1995 U.N. Fish Stocks Agreement. Secondly, it is difficult to establish that the conservation and management measures adopted by the IOTC have become rules of customary international law. In other words, under the customary international law concerning the pacta tertiis rule and Article 34 of the Vienna Convention on the Law of Treaties, which explicitly states that “[a] treaty does not create either obligations or rights for a third State without its consent,” Taiwan bears no legal obligations to accept and then implement the conservation and management measures established by the IOTC, given the fact that Taiwan is neither a member nor a cooperating non-contracting party of the IOTC. What could be done to help Taiwan become eligible to apply for membership in the IOTC? It is suggested here that Taiwan should persuade members of the IOTC to consider the option of amending paragraph 2 of Article 4 in accordance with Article 20 of the IOTC Agreement, provided that members of the IOTC are indeed serious about involving all non-contracting parties, in particular, Taiwan in the conservation and management regime established by the commission.80 80

Paragraph 1 of Article 20 of the agreement establishing the IOTC provides that the agreement “may be amended by a three-quarters majority of the Members of the Commission.” Any member of the commission or the director-general of the secretary of the Commission can propose to amend the agreement. However, it is required to report any amendment to the agreement to the Council of FAO which “may disallow an amendment which is clearly inconsistent with the objectives and purposes or the provisions of the Constitution of FAO.” If the amendment involves no new obligations for members of the commission, it should take effect for all members from the date of its adoption by the commission, subject to the reporting and checking procedure just mentioned above. If the amendment involves new obligations for members of the commission, it can come into force with respect to each member only upon its acceptance. The instruments of acceptance of amendments involving new obligations should be deposited

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The main obstacle to Taiwan’s participation in the work of the IOTC as a full member of the Commission is the criteria stipulated in Article 4, as quoted earlier.81 Owing to the fact that the 1995 U.N. Fish Stocks Agreement entered into force on December 11, 2001, and that both Taiwan and China became members of the WTO in January 2002, it is suggested that paragraph 2 of Article 4 of the IOTC Agreement can be amended as the following (with proposed new language italicized): The Commission may, by a two-thirds majority of its Members, admit to membership any other States or entities that are not Members of FAO, but are Members of the United Nations, or of any of its Specialized Agencies or of the International Atomic Energy Agency and the World Trade Organization provided that such States or entities: (a) are (i) coastal States or entities situated wholly or partly within the Area; or (ii) States or entities whose vessels engage in fishing in the Area for stocks covered by this Agreement; and (b) have submitted an application for membership and a declaration made in a formal instrument that they accept this Agreement as in force at the time of acceptance in accordance with paragraph 2 of Article XVII . This amendment can be justified by referring to the FAO’s and IOTC’s recognition that “the effectiveness of high seas management will . . . be significantly reduced if a major entity in a fishery does not participate in determining decisions and in turn is not bound by those decisions,”82 and that “the problem of ensuring . . . sustainability cannot be resolved properly unless all nations fishing these species work together cooperating through the Commission.”83 In addition, there exist a number of fishery instruments which make it possible for “other entities” and “fishing entities” to participate in the high seas conservation and management regime established by the RFMOs, as noted earlier in this paper. It should also be recalled that the 1995 U.N. Fish Stocks Agreement is one of the instruments adopted by member states of the United Nations that participated in the 1993-1995 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. If all of these points are with the director-general of the United Nations. The rights and obligations of any member of the Commission that has not accepted an amendment involving new obligations should continue to be governed by the provisions of the agreement establishing IOTC. Paragraphs 2-5 of the Agreement, supra note 71. 81 See text, supra note 71. 82 Papers presented at the Technical Consultation on High Seas Fisheries, Rome, 7September 15, 1992, FAO FISHERIES REPORT No. 484 Supplement, FIPL/R484 (SUPPL.), at 52. See also FAO’s Report of the Technical Consultation on High Seas Fishing and the Papers Presented at the Technical Consultation on High Seas Fishing, May 14, 1993, A/CONF.164/INF/2, reproduced in UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS: SELECTED DOCUMENTS 355 (Jean-Pierre Levy & Gunnar G. Schram, compilers, 1996). 83 See the Preamble of IOTC’s Resolution on the Status of Cooperation with NonContracting Parties (Resolution 99/04), supra note 75.

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accepted, it should meet the requirement provided in paragraph 3 of Article 20 of the IOTC Agreement, which requires the amendment to be consistent with the objectives and purposes or the provisions of the constitution of FAO. Although political issues will certainly be raised were such an amendment to be considered, it should be relevant that there are several precedents in which both China and Taiwan are participating in the operations of other RFMOs. Moreover, both Taiwan and China followed the same articles and procedures in their applications for WTO membership, and became members of the WTO. Both Taiwan and China are participating in the ICCAT, with Taiwan participating in the work of the commission bearing the status of “cooperating party/entity/fishing entity.” In addition, both Taiwan and China participated in the preparatory conferences for the establishment of the WCPFC in April 2001, February 2002, November 2002, and May 2003. If China can accept Taiwan’s membership in the WCPFC under nearly the same terms and conditions as are applied to other members, there should be no reason for China to object to a similar status for Taiwan in the work of the IOTC. It remains to be clarified whether or not the proposed amendment to the IOTC agreement would create new obligations for members of the Commission. If the answer is negative, and no new obligations are involved, then the proposed amendment should take effect from the date of its adoption by a three-quarters majority of the members of the Commission; this means that, at present, the proposed amendment can pass if 13 members vote in favor.84

VI. Concluding Remarks On December 10, 2002, the United Nations celebrated the twentieth anniversary of the opening for signature of the 1982 UNCLOS, which entered into force on November 16, 1994. The 1982 UNCLOS, hailed as the “constitution for the oceans” is one of the most important achievements of the United Nations in the codification and progressive development of international law. As of June 2003, 141 of the member states of the United Nations and the European Community are parties to the 1982 UNCLOS. To be sure, this “constitution for the oceans” has received practically universal acceptance and wide application. Still, it has been imperfect, at best, in the degree to which it has induced effective conservation and management of high-seas fisheries.85 It was in response to this troubling situation that, as the result of three years effort, the U.N. Fish Stocks Agreement was adopted on August 4, 1995, entering into force on December 11, 2001. The entry into force of the 1995 U.N. Fish Stocks Agreement, which is considered the “bill of rights for sustainable fisheries,” augmenting and in essential 84

It should be noted that, in addition to any members of the Commission, the Secretary of the IOTC, accordance with paragraph 2 of Article 20 of the IOTC Agreement, is also empowered to propose to members amendments to the Agreement. 85 Harry N. Scheiber, Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation—and Frustration, 20 VA ENVTL L. J. 119 (2001); see also GOVERNING HIGH SEAS FISHERIES: THE INTERPLAY OF GLOBAL AND REGIONAL REGIMES (Olav S. Stokke ed., 2001).

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respects implementing the general norms articulated in the 1982 UNCLOS, marks a new era in the development of a legal framework for conserving and managing high seas fisheries.86 However, the excitement of seeing the agreement enter into force is mixed with a warning that the majority of coastal states and distant-water fishing nations globally have not yet ratified the Agreement, thus portending obstacles to it effective implementation. The fact that the majority of members of the RFMOs have not yet become contracting parties to the 1995 U.N. Fish Stocks Agreement also creates a problem for accomplishing the goal of strengthening the role and function of the RFMOs managing fishing activities and conserving stocks on the high seas. For the sake of promoting responsible fishing practices on the high seas, and for the protection of the common heritage of the seas, it is essential that the U.N. Fish Stocks Agreement receive a widespread participation and application as has the 1982 UNCLOS. From the perspective of Taiwan, which is not eligible to become a contracting party to UNCLOS, the 1993 FAO Compliance Agreement, or the 1995 U.N. Fish Stocks Agreement, it is desirable that members of the international community should construct practical and reasonable way to involve Taiwan in the work of the RFMOs as they seek to manage high-seas resources—and, more generally, in the global legal framework that deals with fishery issues.87 The desirability of such an effort has been explicitly recognized by responsible global agencies, e.g., by a report of the FAO in 1933, stating: The treatment of non-contracting parties is an important and real issue that should be addressed in the context of high-seas fisheries management. Some nations or other entities operating in a fishery may opt not to participate in a high seas management body or they may be excluded from it (e.g., for political or other reasons). The effectiveness of high seas management will therefore be significantly reduced if a major entity in a fishery does not participate in determining decisions and in turn is not bound by those decisions. The exclusion of parties from management bodies for political or other reasons poses particular difficulties. Taiwan . . . is a major international fishing entity. Its high seas fishing capacity is extensive and likely to increase, especially in the Indian and South Pacific Oceans. However, due to political nonrecognition, Taiwan . . . does not participate fully in any fishery management bodies. Similarly, legal constraints prevent the EEC from participating in some fishery bodies [emphasis added]. The non-contracting parties problem must be addressed. This is because, despite efforts to manage high seas fisheries, attempts to achieve sustainable use may be thwarted by unregulated fishing by non-contracting parties. Such unregulated activity will erode benefits accruing from measures designed to promote rational exploitation.88

86

See text, supra note 7; see also, GOVERNING HIGH SEAS FISHERIES, supra note 85; Hayashi, supra note 29. 87 See also remarks on this point in Franckx’s contribution to this volume, Chapter 8, infra. 88 Papers presented at the Technical Consultation on High Seas Fisheries, Rome, 7September 15, 1992, FAO FISHERIES REPORT No. 484 Supplement, FIPL/R484 (SUPPL.), at 52. See also FAO’s Report of the Technical Consultation on High Seas Fishing and the

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The entry into force of the 1995 U.N. Fish Stocks Agreement, as stipulated in Article 1, answers the call to include “other entities” and “fishing entities” in the conservation and management regime for high seas fisheries resources. However, while “other entities” are eligible to become parties to international fishery instruments, for purely political reasons Taiwan is still being excluded from participating fully and equally in any RFMOs. More importantly, the legitimacy of Taiwan’s right to accede to the 1982 UNCLOS, the 1995 U.N. Fish Stocks Agreement, the Compliance Agreement, and those conventions or agreements that established the RFMOs such as are discussed above, has been denied by political considerations, not because Taiwan’s fishing enterprises lack “real interest” in the fisheries concerned. Although it can be argued that specific arrangements indeed have been made to help involve Taiwan in the work of RFMOs, as has been shown above, there is still a lack of parity between Taiwan’s rights and obligations regarding participation. It can be argued that Taiwan deserves full and equal participation in the RFMOs as a matter of right. But there is also the pragmatic consideration, standing independently of arguments about rights: If Taiwan is excluded from becoming party to the convention or agreement that established a particular RFMO, then it follows, under the Vienna Convention Article 34, and in accordance with customary international law, the pacta tertiis rule, that Taiwan is not bound by the compliance resolutions adopted by the RFMO. Accordingly, a difficult legal question arises when RFMOs whose decisionmaking processes exclude Taiwan from participation ask Taiwan nonetheless to abide by the conservation and management measures established through adoption of resolutions or decisions by those RFMOs. It is therefore suggested, in conclusion, that both the IOTC and the IATTC, when amending the agreements or conventions establishing these commissions, should take Taiwan’s unique situation into serious consideration for the sake of the paramount goal of achieving effective conservation and management of high seas resources.

Papers Presented at the Technical Consultation on High Seas Fishing, May 14, 1993, A/CONF.164/INF/2, reproduced in UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS, supra note 82, at 355.

CHAPTER 8

Multilateralism and Marine Issues in the Southeast Atlantic Erik Franckx

I. Introduction When addressing the issue of multilateralism and marine issues in the Southeast Atlantic,1 there appears to be no particular lack of study objects to focus upon in the form of regional fisheries organizations specifically related to the African continent.2 If considered choices have to be made between these different multilateral organizations, therefore, a number of distinctive features should be highlighted downgrading in some respect their interest for the present study. Some of these organizations, having a broad membership, clearly transcend the geographical area of the Southeast Atlantic, such as the Ministerial Conference on Fisheries Cooperation among African States bordering the Atlantic Ocean, creating the Regional Convention on Fisheries Cooperation among African 1 For present purposes, at least some area south of the Equator has to be involved in order to fit under the concept “South Atlantic.” 2 For a good general overview, see Antonio Tavares de Pinho, Les Etats d’Afrique de l’Ouest et la mise en oeuvre des dispositions de la convention des Nations unies sur le droit de la mer en matière de pêche, 102 PENANT: REVUE DE DROIT DES PAYS D’AFRIQUE 5-18, 156-181 (1992). See especially 177-81 concerning regional cooperation.

177 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 177-97.

© 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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States bordering the Atlantic Ocean.3 Other large scale organizations have their main field of operation north of the Equator, such as the Committee for the Eastern Central Atlantic Fisheries (hereinafter CECAF).4 Others are of a much smaller scale than the organizations mentioned so far, but even then they either have remained rather ineffective,5 like the Regional Fisheries Committee for the Gulf of Guinea,6 or even if fulfilling a modest positive role,7 like the Sub-regional Commission on Fisheries,8 do no longer fit the self-imposed geographical limitation of the present paper.9 An organization not really affected by any of these pitfalls is the one established by the recently adopted Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean.10 First of all, it covers best the area which forms the subject matter of the present study, namely the 3

This convention, signed in 1991, entered into force in 1995 and has its headquarters in Rabat, Morocco. For more details on this organization, with a membership of over 20, as well as a map depicting its area of operation, see www.fao.org/fi/body/rfb/AAFC/ aafc_home.htm. With the exception of South Africa, this convention covers the whole West African coastline. Organizations with an even broader field of operation, like the International Commission for the Conservation of Atlantic Tunas (hereinafter ICCAT), are not mentioned here for they do not relate specifically to the African continent, as put forward, supra note 2 and accompanying text. 4 This committee was created by the Food and Agriculture Organization (hereinafter FAO) at its forty-eighth session in June 1967. Its statutes were promulgated by the Director-General of FAO on 19 September 1967, as later amended by the FAO Council in November 1992. For more details on this organization, with a membership of over 30, as well as a map depicting its area of operation, see www.fao.org/fi/body/rfb/CECAF /cecaf_ home.htm. 5 Ken Roberts, Legal and Institutional Aspects of Fisheries in West Africa, 10 REVUE AFRICAINE DE DROIT INTERNATIONAL ET COMPARÉ 88, 117 (1998). 6 This committee was established by the Convention Concerning the Regional Development of Fisheries in the Gulf of Guinea, signed in Libreville on June 21, 1984. This convention has not yet entered into force. For more details on this organization, with a membership of less than five, as well as a map depicting its area of operation, see www.fao.org/fi/body/rfb/COREP/corep_home.htm. 7 B. N’Diaye & Antonio Tavares de Pinho, Une expérience arficaine de coopération halieutique: la commission sous-régionale des pêches, 8 ESPACES ET RESSOURCES MARITIMES 237(1994). 8 This commission was created by the Convention for the Establishment of a SubRegional Commission on Fisheries, signed on 29 March 1985. For more details on this commission, having a membership of 6 at present, as well as a map depicting its area of operation, see www.fao.org/fi/body/rfb/SRCF/ srcf_home.htm. 9 See supra note 1. 10 This convention [hereinafter SEAFO Convention], of which the text can be found on the Internet at www.mfmr.gov.na/seafo/seafotext.htm, was signed in Windhoek on April 20, 2001 by Angola, Iceland, Namibia, Norway, Republic of Korea, South Africa, the United Kingdom (on behalf of St. Helena and its dependencies, Tristan Da Cuhna and Ascension Island), the United States and the European Community. It has not yet entered into force. At the time of writing (Feb. 17, 2003), only Namibia had ratified the convention and the European Community had approved it. According to art. 27, SEAFO Convention requires a minimum of three instruments of ratification, acceptance or approval, and a 60-day period after the deposit of the third instrument, on the condition that at least one coastal state is included.

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Southeast Atlantic.11 It does not totally reach up to the Equator in the north, it is true, but this has to do with the fact that this organization wanted to minimize as much as possible any overlaps with other regional organizations, in casu CECAF.12 A few months before the signing of the convention Angola raised a last minute obstacle since it conditioned its support for the SEAFO Convention to a prior amendment of the provision relating to the convention area.13 This in turn threatened the convention as a whole since it was clear that Namibia and South Africa would not sign that document if Angola would not do so. The reason behind this proposed amendment was that Angola feared that it would prejudice its maritime claims if the convention would not include all waters in front of its coasts, including those facing Cabinda. But this implied automatically that new coastal states, heretofore not involved in the negotiations, would have to be invited to join the negotiating process at this very late stage, a risk that the other participants were apparently not willing to take at the eleventh hour. After a failed attempt to have FAO change the boundaries of the FAO Statistical Area 47, that way simultaneously changing the conventional area of CECAF14 as well as SEAFO, the solution proved to be that a resolution would be agreed upon committing the participants to consider an extension northwards of the boundary at a later stage, on the condition that the other new coastal states involved would cooperate and agree. This resolution forms at present an attachment to the Final Minute, as adopted by the conference. The SEAFO convention has at present nine signatories,15 while four more countries having an interest in the fisheries in the conventional area participated in the SEAFO process.16 This convention is moreover characterized by a very 11

According to the SEAFO Convention, art. 4, the convention area is determined as “all waters beyond areas of national jurisdiction in the area bounded by a line joining the following points along parallels of latitude and meridians of longitude: beginning at the outer limit of waters under national jurisdiction at a point 6G South, thence due west along the 6G South parallel to the meridian 10G West, thence due north along the 10G West meridian to the equator, thence due west along the equator to the meridian 20G West, thence due south along the 20G West meridian to a parallel 50G South, thence due east along the 50G South parallel to the meridian 30G East, thence due north along the 30G East meridian to the coast of the African continent.” 12 The conventional area as a matter of fact is based on FOA Statistical Area 47, with some minor deviations in order to include the high seas adjacent to the northern tip of the exclusive economic zone around Ascension island. See Andrew Jackson, The Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, 2001: An Introduction, 17 INT’L J. MARINE & COASTAL L. 33, 37 n.7 (2002). 13 See id. at 36-37; Are K. Sydnes, New Regional Fisheries Management Regimes: Establishing the South East Atlantic Fisheries Organisation, 25 MARINE POL’Y 353, 359 (2001). The next part of this paragraph is based on these accounts. 14 Since CECAF is a regional fisheries organization created by FAO (see supra note 4), this option must have appeared particularly attractive to the SEAFO negotiators. The only link of SEAFO with FAO is that the convention relies on the Director-General of FAO for depository functions. SEAFO Convention, art. 34. 15 See supra note 10. 16 Namely Japan, Poland, Russia and Ukraine. See Sydnes, supra note 13, at 353. Even though not all of them attended each and every meeting, they received all docu-

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open membership system, especially in comparison with other similar bodies.17 Each contracting party is for instance allowed to become a member of the regulatory body, the Commission.18 Membership to the agreement itself is open to coastal states of the region as well as all other states and regional economic integration organizations whose vessels fish in the convention area. No system of control exists to determine whether a particular applicant effectively belongs to the latter category or not.19 The only negative feature attached to SEAFO for present purposes is that the convention on which it is based has not yet entered into force.20 The fear has moreover been expressed that if fishing efforts and catches in the convention area do not increase, the convention might well remain dead letter.21 The fact that the SEAFO Convention was one of the first regional fisheries organizations established in accordance with the new international law on high seas fisheries22 nevertheless outweighs this particular shortcoming. Indeed, this particular combination of timing and substance, as will be seen next, makes this regional fishery organization function as an example for other such organizations, already existing or still to be created.

II. The New International Law of Fisheries on the High Seas It can hardly be denied that the United Nations Convention on the Law of the Sea23 has had a profound impact on the regime of high seas fisheries. 24 With the creation of exclusive economic zones,25 the fishing effort of many distant water ments and were always invited to the following meetings. See Jackson, supra note 12, at 36 n.5. 17 The SEAFO Convention has been said to “score extremely well on the membership and accession issue” in this respect. See Erik Franckx, Fisheries Enforcement— Related Legal and Institutional Issues: National, Subregional or Regional Perspectives, FAO Legislative Study No. 71 at 161 (2001). 18 SEAFO Convention, art. 6(1). 19 Id. at art. 26(1). 20 See supra note 10. 21 Sydnes, supra note 13, at 361. 22 As stressed by the latest report of the Secretary-General on the oceans and the law of the sea. See UNITED NATIONS, OCEANS AND THE LAW OF THE SEA: REPORT OF THE SECRETARY-GENERAL at 36, U.N. Doc. A/57/57 (2002)[hereinafter 2002 LOS Report of the Secretary-General]. 23 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, available at www.un.org/Depts/los/convention_agreements/texts/unclos/ closindx.htm (entered into force Nov. 16, 1994) [hereinafter 1982 Convention]. 24 See, e.g., FRANCISCO ORREGO VICUNA, THE CHANGING INTERNATIONAL LAW OF HIGH SEAS FISHERIES (1999); JOSÉ DE YTURRIAGA, THE INTERNATIONAL REGIME OF FISHERIES: FROM UNCLOS 1982 TO THE PRESENTIAL SEA (1997); and with a more neutral title, but nevertheless having the same general thrust, LE DROIT INTERNATIONAL DE LA PÊCHE MARITIME (Daniel Vignes, Rafael Casado Raigon, & Giuseppe Cataldi eds., 2000). 25 1982 Convention, arts. 55-75. It is a generally accepted fact that more than 90 percent of all commercially exploited fish stocks are to be found in this maritime zone. See also Christopher J. Carr and Harry N. Scheiber, Dealing with a Resource Crisis:

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fishing fleets, not willing or not able to negotiate access agreements in this newly created zone,26 turned to the few remaining resources on the high seas. Triggered by the fact that the global production of fish and shellfish from marine capture started for the first time to decline during the late 1980s, a conference on straddling fish stocks and highly migratory stocks was convened in 1993 to try to tackle this issue.27 The outcome was the so-called 1995 U.N. Fish Stocks Agreement.28 As indicated by its full title, only two stocks of fish are regulated by this agreement, namely the straddling and the highly migratory fish stocks. These stocks, which also spend part of their existence in areas under coastal state jurisdiction, are moreover only covered by the agreement in as far as they find themselves on the high seas.29 Much has already been written about the innovative nature of this agreement.30 Suffice it to say that even in the eyes of environmental organizations, Regulatory Regimes for Managing the World’s Marine Fisheries, 21 STAN. ENVTL. L.J. 45 (2002). 26 In a judgement of June 3, 1985, i.e., about a decade before the 1982 Convention entered into force (see supra note 23), the International Court of Justice [hereinafter ICJ] stated in an obiter dictum that the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by state practice to have become a part of customary law. See Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 I.C.J. 33 (June 3). 27 Moritaka Hayashi, The Straddling and Highly Migratory Fish Stocks Agreement, in DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW 55, 56-57 (Hey, Helen ed. 1999). 28 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, Sept. 8, 1995, U.N. Doc. A/CONF.164/37, 34 I.L.M. 1542 (entered into force Dec. 11, 2001) [hereinafter 1995 U.N. Fish Stocks Agreement]. This is not to say that this convention incorporates by itself this new international law of fisheries on the high seas. Many other hard and soft law documents have to be added if one attempts to be exhaustive. For a good overview, see e.g., 2002 LOS Report of the Secretary-General, supra note 22, at 33-42; William Edeson, Guest Lecture Delivered at the Vrije Universiteit Brussel (Dec. 10, 2002), available at www.vub.ac.be/ INTR/lectures2002.html. But because the 1995 U.N. Fish Stocks Agreement is the central document placing the emphasis, with respect to this new international law of fisheries on the high seas, on the future role of regional fisheries organizations—a central theme of the present paper—only this document needs to be mentioned here. 29 1995 U.N. Fish Stocks Agreement, art. 3(1). 30 Because of the novel character of some fundamental concepts and ideas introduced by this agreement, seemingly upsetting vested principles of international law such as the pacta tertiis rule or the exclusive competence of the flag state over vessels flying its flag on the high seas, it has been argued elsewhere by the present author that this does not pose any particular problem inter partes contractantes. See Erik Franckx, Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea, 8 TUL. J. INT’L & COMP. L. 49 (2000). See also Erik Franckx, Pacta Tertiis and 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 & Management of Straddling Fish Stocks & Highly Migratory Fish Stocks, 8 FAO LEGAL PAPERS ONLINE (June 2000), available at www.fao.org/Legal/prs-ol/paper-e.htm. This conclusion seems to be sustained by the reluctant attitude of states, especially distant water fishing nations, to

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this agreement “is the most progressive international instrument to date” and “represents a considerable advance in fisheries management and should serve as a model beyond its formal remit”.31 This latter point is very well illustrated by the SEAFO Convention. As already stated, one of the guiding principles adhered to by the drafters of this convention was the avoidance of overlaps with other international organizations, not only territorially32 but also substantively. That is why highly migratory species were excluded from the start.33 The latter stock was already covered by ICCAT.34 The exact relationship with the 1995 U.N. Fish Stocks Agreement becomes therefore a most interesting one. This agreement, which served as general blueprint during the drafting process of the SEAFO Convention,35 certainly covers straddling stocks to be found in the convention area,36 but does not apply to so-called discrete high seas stocks, i.e., stocks not entering waters under national jurisdiction at any stage of their become parties to this agreement. See e.g., Comment, Informal Meeting of States Parties to 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 Highly Migratory Fish Stocks, Oct. 9, 2002, U.N. Doc. ICSP/UNFSA/REP/INF.1 at 5, explicitly stating so and urging for a revision of certain parts of the agreement in order to secure its universality. The numerous references to be found in the two above-mentioned articles to the specialized literature give an idea of the general interest this particular agreement has generated. 31 Greenpeace, Private Fishing: Plundering West Africa (September 2001), available at archive.greenpeace.org/~oceans/reports/wafricapiratefish.pdf. 32 See supra note 12 and accompanying text. 33 It was already during the second meeting, held at Cape Town on May 19-21, 1998, that this decision was taken. See Final Minute of the Conference on the South East Atlantic Fisheries Organization for the South East Atlantic, April 20, 2001 (text kindly received from the FAO Legal Office on April 23, 2001). 34 See supra note 3. 35 The so-called “cut and paste” option, as described by the Chairman of these negotiations. See Andrew Jackson, Developments in the Southeast Atlantic, 1997-1999: Meetings of Coastal States and Other Interested Parties on a Fisheries Management Organization for the South East Atlantic (the SEAFO Process), in CURRENT FISHERIES ISSUES AND THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS 55, 6061(Myron Nordquist & John N. Moore eds., 2000), where this author however emphasizes that this technique was used with the necessary restraint during the SEAFO process. 36 It should be noted that most of the so-called high seas species cross the 200-mile limit at some stage of their life cycles and can therefore be considered, biologically, to be straddling stocks. Stressing this point, see Moritaka Hayashi, The Role of the United Nations in Managing the World's Fisheries, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 373, 374 (Gerald Blake, William Hildesley, Martin Pratt, Rebecca Ridley & Clive Schofield eds., 1995) and Moritaka Hayashi, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: An Analysis of the 1993 Session, 11 OCEAN Y.B. 20, 21-22 (1994), both referring to a study by the FAO, World Review of High Seas and Highly Migratory Fish Species and Straddling Stocks, FAO FISHERIES CIRCULAR 868 (1993), preliminary version. Beyond the field of application of the 1995 U.N. Fish Stocks Agreement, therefore, not many other living resources may in principle remain on the high seas. As stressed by LAURENT LUCCHINI & MICHEL VELCKEL, 2 DROIT DE LA MER, 690 (1996) and Djamchid Momtaz, L’Accord relatif à la conservation et la gestion des stocks de poissons chevauchants et grands migrateurs, 41 ANNUAIRE FRANÇAIS DE DROIT INTERNATIONAL 676, 681 (1995).

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biological cycle, which appear to exist in the conventional area and relate to the sea mounts of the Southeast Atlantic.37 A close analysis of the question whether the 1995 U.N. Fish Stocks Agreement applies to these discrete high seas stocks under the SEAFO system concludes that this is indeed the case,38 stressing that way the importance of the model function of the 1995 U.N. Fish Stocks Agreement already mentioned above.39

III. Specific Issues of Multilateralism Under the SEAFO Conventional System It is not the intention of the present paper to give an overview of the negotiations leading up to the SEAFO Convention, nor to give a general overview of its content, since this has already been done elsewhere. 40 Drawing on research done in the framework of a recent study for FAO,41 this paper rather intends to highlight some salient features of the SEAFO Convention by placing this new regional fisheries organization in the broader picture of a number of similar organizations, represented in Table 8.1.42 Of all the issues so raised, the issue of port state control will be given extra consideration, given the recent attention paid to this issue by FAO in order to try to combat illegal, unreported and unregulated (hereinafter IUU) fishing.43

37

Jackson, supra note 12, at 38. Jackson, supra note 35, at 56 and 60-62; Jackson, supra note 12, at 38 and 46-49, where he states: “The conclusion therefore appears to be that through the extensive application by SEAFO participants of provisions of the Fish Stocks Agreement to discrete high seas stocks, the SEAFO Convention demonstrates a willingness among at least some States to bind themselves to apply provisions of the Fish Stocks Agreement to all fishing on the high seas,” Id. at 47. 39 See supra note 31 and accompanying text. 40 As far as the former is concerned, see e.g., Sydnes, supra note 13, at 353-64. As far as the latter is concerned, see e.g., Jackson, supra note 35, at 55-67; Jackson, supra note 12, at 33-77. 41 Franckx, supra note 17. 42 The abbreviations to be found in that table will be used hereinafter. 43 Based on a legal paper prepared by Terje Lobach, Port State Control of Foreign Fishing Vessels, 29 FAO Legal Papers Online (May 2002), available at www.fao. org/Legal/prs-ol/paper-e.htm, FAO organized an expert consultation to review port state measures to combat IUU fishing. Under the chairmanship of Judge Mensah of the International Tribunal for the Law of the Sea, the present author served as one of the eight experts which were invited to participate in this meeting. See UNITED NATIONS, FOOD AND AGRICULTURAL ORGANIZATION, REPORT OF THE EXPERT CONSULTATION TO REVIEW PORT STATE MEASURES TO COMBAT ILLEGAL, UNREPORTED AND UNREGULATED FISHING, ROME, 4-6 NOVEMBER 2002, FAO Fisheries Report No. 692, FAO Doc. FIPL/R692(En)(2002)[hereinafter FAO Expert Consultation on IUU fishing]. 38

1966

International Commission for the Conservation of

1980 1978

North-East Atlantic Fisheries Commission (NEAFC)

Northwest Atlantic Fisheries Organization (NAFO)

multiple

highly migratory

multiple

multiple

highly migratory

highly migratory

highly migratory

multiple

multiple

SPECIES

Apr 20, 2001

Sept 5, 2000

Oct 24, 1978

Nov 18, 1980

Nov 25, 19935

May 14, 1966

July 10, 1979

n/a2

May 20, 1980

SIGNED

not in force

not in force

Jan 1, 1979

Mar 17, 1982

Mar 27, 1996

Mar 21, 19694

Aug 9, 1979

n/a

Apr 7, 1982

IN FORCE

Except for the EC, the texts of all these conventions and agreements are available on the “Internet Guide to International Fisheries Law” (), a publication edited by C. Hedley and to which the present author serves as Associate Advisor. For convenience, all references are made to this Internet source. The EC text is available at http://europa.eu.int/eur-lex/en/treaties/index.html. This table reflects the situation as of February 2003. 2 Even though the European Economic Community was established in 1957, the common fisheries policy only saw the light of day in 1983. 3 FFA provides members with scientific and management advice. All other RFOs directly establish management measures. 4 With protocols of 1984 and 1992. 5 Approved (not signed) by the FAO Conference during its 27th session. 6 The acronym MHLC, which is in common usage, refers to the Multilateral High Level Conference that initiated the establishment of the Convention. This organization is also known under the acronym WCPOFC, which stands for Western and Central Pacific Ocean Fisheries Commission.

1

italics = not yet in force

Part of Atlantic Ocean

2001

Southeast Atlantic Fisheries Organization

Key: bolded = FAO RFO

Part of Pacific Ocean

2000

Part of Atlantic Ocean

Part of Atlantic Ocean

Indian Ocean

Atlantic Ocean

Part of Pacific Ocean

Part of Atlantic Ocean

Southern Oceans

AREA

Multilateral High Level Conference (MHLC)

6

1993

Indian Ocean Tuna Commission (IOTC)

Atlantic Tunas (ICCAT)

1979

Forum Fisheries Agency (FFA)

3

European Community (EC)

1957

1980

Commission for the Conservation of Antarctic Marine

Living Resources (CCAMLR)

YEAR

NAME (ABBREVIATION)

Table 8.1. Classification of the Regional Fisheries Organisations (RFO) subject to the comparative analysis1

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A. Membership Not much needs to be added to the reference already made above to the very open membership system when compared to other regional fisheries organizations.44 The will to create a truly open organization representing not only the coastal states of the area, but also the distant water fishing nations active in the area—in line with the relevant provision of the 1995 U.N. Fish Stocks Agreement45—was already very much present in the minds of the founding fathers of the SEAFO Convention. This document in fact found its origin in a proposal made by Namibia, wanting to protect its orange roughy fishery, to South Africa in 1995.46 The next two years a series of informal consultations were held between these two countries and the other two coastal states in the region, namely Angola and the United Kingdom.47 This resulted in a “coastal state draft” which served as the basis for discussions during the first session of the SEAFO process to which the EC, Japan, Norway, Russia and the United States were invited.48 But since the participants were uncertain as to possible interest of other distant water fishing nations with an interest in the region, they turned to FAO for advise. On the basis of the information so received, other countries, like Iceland and Ukraine, and later also Poland and the Republic of Korea were invited to join the process.49 Even though the issue of real interest was discussed at great length during the SEAFO process, no definition was arrived at.50 The only reference in the convention to that notion is to be found in the

44

See supra notes 17-19 and accompanying text. U.N. Fish Stocks Agreement, art. 8(3) states in this respect: “States having a real interest in the fisheries concerned may become members of such organization or participants in such arrangements. The terms of participation in such organization or arrangement shall not preclude such States from membership or participation; nor shall they be applied in a manner which discriminates against any State or group of States having a real interest in the fisheries concerned.” For a analysis of this enigmatic notion of “real interest,” see Erik J. Molenaar, The Concept of “Real Interest” and Other Aspects of Cooperation through Regional Fisheries Management Mechanisms, 15 INT’L J. MARINE & COASTAL L. 475 (2000). 46 Sydnes, supra note 13, at 355. It is worth noting that it was the independence of Namibia which had rendered the International Commission for the Southeast Atlantic Fisheries, an organization described as a gathering of distant water fishing nations operating off the Namibian coast, inoperative. This has to be understood in the light of Namibia’s inability to claim an exclusive economic zone before that time. See Are K. Sydnes, Regional Fishery Organisations in Developing Regions: Adapting to the Changes in International Fisheries Law, 26 MARINE POL’Y 373, 374, 376 and 379 (2002). 47 Sydnes, supra note 13, at 355. The latter on behalf of its sovereignty over a number of islands in the convention area. See supra note 10. 48 Sydnes, note 13, at 355. 49 Jackson, supra note 35, at 58. 50 Jackson, supra note 12, at 39. 45

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preamble.51 A combined reading of Art. 25 and the definition of “fishing” to be found in Art. 1, leads to the conclusion that the SEAFO Convention contains no built-in control system in this respect and that, for instance, a pure scientific interest might suffice to become member of the convention, and likewise the Commission.52 This threshold, no matter how low it may seem, is nevertheless thought to be essential. ICCAT, for instance, does not require new members to be located in the convention area, nor to display any fishing activity therein.53 The membership problems of the International Whaling Commission can be referred to as a case in point here, as evidenced by the latest annual conference of this organization54 where the problem “vote-buying” formed one of the main issues on the agenda.55

B. Decision-Making Process56 Broadly speaking, three main categories of regional fisheries organizations can be distinguished in this respect, namely those requiring unanimity (rather the exception), some kind of majority voting (more classic regional fisheries organizations), or consensus (typical for more recently established regional fisheries organizations). In the main organ under the SEAFO Convention, i.e., the Commission, decisions relating to matters of substance are taken by consensus.57 Other issues merely require a simple majority, with no quorum being provided for.58 This system was the result of long negotiations, with at the center the opting-out procedure,59 and only found a solution at the penultimate

51

SEAFO Convention, Preamble, para. 9, states: “Desiring co-operation with the coastal States and with all other States and Organisations having a real interest in the fishery resources of the South East Atlantic Ocean to ensure compatible conservation and management measures.” 52 Jackson, supra note 12, at 39 n.12. The only requirement for a state to become a member is that is must have vessels fishing in the area or that have fished there during the four years preceding the adoption of the convention, i.e. the period during which the latter was being negotiated. The term fishing is given a rather broad definition in the article on the use of terms. 53 ICCAT, art. XIV(1). 54 Held in Shimonoseki, Japan, on May 20-24, 2002. 55 International Whaling Commission Annual Meeting 2002, International Fish Bulletin, available at www.intfish.net/iwc2002. 56 Unless otherwise indicated, this part is based on Franckx, supra note 17, at 151-55, where further references can be found. 57 SEAFO Convention, art. 17(1), also stating that the question of whether a matter is one of substance must be treated as a matter of substance. 58 Id. at art. 17(2). 59 Some authors have openly questioned the compatibility of such an opting-out clause with the 1995 U.N. Fish Stocks Agreement. See Peter Örebech, Ketill Sigurjonsson, & Ted McDorman, The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement, 13 INT’L J. MARINE & COASTAL L. 119, 125-26 (1998) (concluding that even though it may be compatible with the letter of the convention, it certainly runs counter its spirit).

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substantive session.60 The compromise solution finally reached early 2000 opted for the consensus procedure in principle, deleted the possibility to overrule objections, but at the same time included a lengthy article on implementation, containing a very intricate system of objections.61 The latter is said to stress the exceptional nature of the procedure, but nevertheless allows objections to be made, no matter how cumbersome the procedure. Only the future can tell whether these provisions will be readily relied upon by the parties, or whether the intermediate steps built into the system, such as the calling of a review meeting or the establishment of an ad hoc expert panel, will rather work at reaching consensus in the final end.62 But unlike the issue of membership, where no other regional fisheries organization under consideration could match the SEAFO conventional provisions, in this area the recent experience in the Western and Central Pacific seems to be even more advanced. Especially the fact that a conciliation procedure has been worked out in the MHLC system in case the chairman of the Commission feels that an objection could be forthcoming, gives the active search for consensus an extra dimension.63

C. Fishing Entities64 The central issue here is how one can involve Taiwan, possessing a major distant water fishing fleet, in this new international law of fisheries on the high seas. Since the latter can at present not become a party to any international agreement, this consequently also applies to the 1995 U.N. Fish Stocks Agreement. This is unfortunate, because this is the first time that a multilateral convention with global application explicitly referred to fishing entities.65 It must be admitted that this was but a first step, for the agreement, which does not allow these fishing entities to become a party to it,66 does impose obligations on 60

Sydnes, supra note 13, at 357. Some countries favored a consensus system where objections were strictly regulated and could be overruled by a majority, whereas others were more inclined towards a classic system of majority voting with opting-out procedure. 61 SEAFO Convention, art. 23. 62 Jackson, supra note 12, at 41. 63 MHLC, art. 20(4). This convention moreover provides a definition of consensus for the purposes of the conventional article on decision-making, namely “the absence of any formal objection made at the time the decision was taken.” Id. at art. 20(1). 64 Unless otherwise indicated, this part is based on Franckx, supra note 17, at 161-67, where further references can be found. 65 1995 U.N. Fish Stocks Agreement, art. 1(3) provides: “This Agreement applies mutatis mutandis to other fishing entities whose vessels fish on the high seas.” In the specialized literature, this term is usually linked to Taiwan . Stressing the novel character of this provision, see PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 674 (2002). See Chapter 7 in this Volume, The Regional Fishery Management Organizations and Ocean Law: The Perspective from Taiwan by Yann-huei Song. 66 1995 U.N. Fish Stocks Agreement.

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them.67 The MHLC has dared to take also the second step, that is to grant these entities also the right to participate in the decision-making process.68 Besides the imposition of obligations, in other words, also rights were granted. This did not entail that these entities were placed on the same footing as states, for their special status was regulated by means of a very carefully drafted annex. 69 The SEAFO negotiators apparently wanted to take this process even one step further, by originally providing in the article on the use of terms that a contracting party meant “any state, entity and regional economic integration organisation which has consented to be bound by this Convention, and for which the Convention is in force.”70 This would have placed entities at par with the other members of the convention. But after this one word “entity” was deleted from the definition of contracting party,71 a situation is created very similar to the one which exists under the 1995 U.N. Fish Stocks Agreement of imposing obligations under the article on non-parties to the agreement, while only granting benefits commensurate to their participation in the implementation of the conservation regulations and management measures decided by SEAFO.72 Since fishing entities cannot participate in the determination of the notion commensurate, this appears to be a discretionary power of SEAFO. Even though this change has been justified by the fact that “vessels from Taiwan were not among those identified as fishing for SEAFO stocks, so the question of specific provision for participation of fishing entities did not arise”,73 this nevertheless appears to constitute a missed opportunity to further develop the law in question. First of all, there was the uncertainty surrounding the knowledge of the exact fishing practices in the convention area.74 Secondly, given the open membership provision, one should have seriously considered the possibility that tomorrow Taiwan might well decide to fish in the area, if it had not already done so in the past. It has indeed proven extremely difficult for regional fishery organizations, if no clear rules are to be found in their constitutive documents, to solve this issue afterwards.75

67 Id. at art. 17(3). These entities will be requested to cooperate fully in the implementation of the conservation and management measures decided by a particular regional fishery organization. The quid pro quo involved is that they then shall enjoy benefits . . . commensurate with their commitment to comply with these measures. 68 MHLC, art. 9(2). 69 Id. at Annex I. 70 SEAFO Convention, art. 1(e), May 12, 2000. 71 SEAFO Convention, art. 1(e), today reads “‘Contracting Party’ means any State or regional economic integration organization which has consented to be bound by this Convention, and for which the Convention is in force.” 72 Id. at art. 22(4). This wording is identical to the one found in the 1995 U.N. Fish Stocks Agreement. See supra note 67. 73 Jackson, supra note 12, at 39 n.11. 74 See supra notes 48-49 and accompanying text. 75 Franckx, supra note 17, at 167, where the negative experience of IOTC in this respect is developed in some detail.

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D. Compliance and Enforcement, with Special Emphasis on Port State Control The compliance and enforcement provisions of the SEAFO Convention, as one author puts it, “became the ‘make-or-break’ of the SEAFO process”.76 All elements of an integrated compliance and enforcement system may have been agreed upon, but the practical details were generally left for a later stage in order not to slow down the adoption of the convention itself.77 This approach is reflected in the article on observation, inspection, compliance and enforcement, which bestow the Commission with the task of establishing a detailed system.78 The general principles which shall guide the Commission in this task, and which are included in this provision, are usually not revolutionary in comparison with other regional organizations.79 But much of course will depend on how the Commission will fulfill this particular task. The same is true with respect to port state control, another compliance and enforcement mechanism, even though a special article was attributed to it.80 For reasons mentioned above,81 a closer look will be taken at this issue and its status under general international law. There is sufficient support to be found for the proposition, taken as point of departure by T. Lobach in his recent study, that vessels of foreign states do not have a right to enter a port, but merely a privilege to do so.82 This appears to be a rule under general international law not directly tied to the 1982 Convention, since its existence predates the latter instrument.83 To grant access has been qualified as an act of sovereignty in the literature,84 a point of view confirmed by the ICJ.85 The only requirement attached to the exercise of this apparent discretionary power by the port state is that the latter may not discriminate amongst foreign ships. Following the “de minimis ...”-rule, a state can consequently also allow foreign vessels to enter only certain ports, while excluding them from others, again subject to the same non-discrimination condition. To 76

Sydnes, supra note 13, at 358. See also Jackson, supra note 12, at 43, who likewise calls it “one of the most difficult issues in the SEAFO negotiations.” 77 Sydnes, supra note 13, at 358. 78 SEAFO Convention, art. 16. 79 The Interim Arrangement obliges vessels to report movements and catches to the flag states, and only to the Secretariat if the contracting party in question so desires (Section 2, sub 7). The keeping of records is moreover placed under the article dealing with flag-state duties (SEAFO Convention, art. 14(3)(c)), rather than under the article dealing with the powers of the Commission. Other regional fisheries organizations have already made such a centralization in a regional register obligatory. See Franckx, supra note 17, at 171-73. A similar remark can be made with respect to vessel-monitoring systems. See id. at 173-78. 80 SEAFO Convention, art. 15. 81 See supra note 43 and accompanying text. 82 Lobach, supra note 43, at 9. 83 Vaughan Lowe, The Right of Entry into Maritime Ports in International Law, 14 SAN DIEGO L. REV. 597, 619-20 (1977). 84 D.P. O’CONNELL, 2 THE INTERNATIONAL LAW OF THE SEA 848 (1984). 85 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 14, 212 (June 27)[hereinafter Nicaragua Case].

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give an example relating to an area of special interest to present author, reference can be made to the former Soviet Union where commercial vessels were only allowed entry in a limited number of ports in the Arctic, listed in the Soviet Notices to Mariners.86 When M. Gorbachev referred to the possibility of opening up the Northern Sea Route to foreign shipping in his Murmansk speech of 1 October 1987,87 he must therefore have had this particular issue in mind. China, to take another example, equally allows foreign vessels access to only a limited number of ports designated by the Ministry of Communications.88 This aspect of the matter seems to have to be distinguished from a legal point of view from another—not less important—universally accepted international law premise, namely that once a ship voluntarily enters into port, it fully subjects itself to the laws and regulations of that particular state. The latter, as a consequence, can impose all kinds of requirements on foreign vessels, even if these requirements concern a strictly national interest. The prohibition laws of the United States, for instance, were evenly applied to national and foreign ships alike calling at an American port during those days.89 The limitation here appears that the laws and regulations must in principle relate to activities of a foreign vessel taking place while the latter is in port. To regulate activities of the vessel which took place elsewhere is more problematical as will be discussed in further detail below. Having stated these far-reaching principles, certain caveats have nevertheless to be taken into account. A distinction will be made here between the right of access to port on the one hand, and the application of laws and regulations of the port state on foreign vessels voluntarily in port on the other hand. 1. Access to port Practice apparently also indicates that many exceptions exist to the rule just mentioned about port access. First of all, treaties of Commerce, Friendship and Navigation often provide for a conventional right of mutual access to the ports of the countries involved. But also multilateral conventions can provide for such a right of access. Even though hardly universal in nature, the Convention and Statute on the International Regime of Maritime Ports, drafted under the auspices of the League of Nations, nevertheless obliges a non-negligible number of countries to grant ships of other contracting parties a right of access to its ports.90 The denial of a right of access might moreover also be contrary to contemporary international trade law in certain cases.91 Applied to fisheries, 86

See e.g., IZVESHCHENIIA MOREPLAVATELIAM (Notices to Mariners), Jan. 1, 1986, at 4, where six ports were listed open to foreign ships in the Arctic Ocean, with one of them being moreover closed from the month of September to December. 87 IZVESTIIA, Oct. 2, 1987, at 1, 3, col. 7. 88 JEANETTE GREENFIELD, CHINA’S PRACTICE IN THE LAW OF THE SEA 32 (1992). 89 MYRES MCDOUGAL & WILLIAM BURKE, THE PUBLIC ORDER OF THE OCEANS 156 (1962). 90 Convention and Statute on the International Regime of Maritime Ports, Dec. 9, 1923, 58 L.N.T.S. 285. It must be noted however that fishing vessels were explicitly excluded (art. 14). 91 Ted McDorman, Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention, 28 J. MAR. L.& COM. 305, 310-311 (1997).

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reference can be made to the 1989 dispute between the EC and Canada in order to illustrate the latter point. The latter country had closed its ports to EC fishing vessels for refusing to give economic benefits to Canadian fish products and competing with Canadian fish. The EC argued such attitude to be incompatible with the World Trade Organization (hereinafter WTO) rule that goods in transit are not to be unduly interfered with or discriminated against by the transit state.92 A similar dispute arose later on between the EU and Chile, whereby the latter country closed off its ports to certain EU fishing vessels that had been fishing for swordfish in international waters.93 The fact that the EC first requested the formation of a WTO panel once again emphasizes the questionable character of such measures under contemporary international trade law. Recent analyses of the question come to the conclusion that even though there is no general rule of international law requiring states to grant port access to foreign vessels, there is a presumption—but not a legal obligation—that ports are to be considered open unless indicated otherwise.94 This point of view seems to be reflected in the recent international legal definition given to the notion “Accès au port (droit d’-)”. After having duly stressed the conventional nature of this right, the definition continues: “A l’heure actuelle, la pratique semble admettre une sorte de présomption douverture aux navires marchands. Néanmoins, les Etats sont libres de fixer les conditions d’accès à leur port”. 95 Even more enigmatic is the conclusion reached by the standard work of R. Churchill & V. Lowe. Besides reaching the conclusion that “most States enjoy such rights under treaty”,96 these authors argue “that closures or conditions of access which are patently unreasonable or discriminatory might be held to amount to abus de droit, for which the coastal State might be internationally responsible even if there were no right of entry to the port”.97 It therefore becomes less obvious whether one can easily impose on states the obligation to outright close their ports for certain fishing vessels if these states have not expressly consented to such measure, given the fact that they might be under a general legal obligation to grant such access anyway. This makes the circle almost complete: Starting from the general rule that there is no right of access to ports under present-day international law, state practice indicates that most states nevertheless do enjoy such right today. But 92

Ted McDorman, Port State Control Agreements: Some Issues of International Law, 5 OCEAN & COASTAL L.J. 207, 220 (2000). 93 ITLOS: Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile-European Community) (Order on Constitution of Chamber), Order 2000/3 (Dec. 20, 2003), at present suspended because the parties reached a provisional arrangement in 2001. 94 Louise De La Fayette, Access to Ports in International Law, 1 INT’L J. MARINE & COASTAL L. 1, 22 (1996); Robert Goy, La liberté d’accès au port des navires de commerce en temps de paix, 7 ESPACES ET RESSOURCES MARITIMES 244, 278 (1993). 95 “At present, practice seems to allow a kind of presumption in favor of access of merchant vessels. Nevertheless, States are free to establish conditions of access to their port (translation by the author).” DICTIONNAIRE DE DROIT INTERNATIONAL PUBLIC 6 (J. Salmon ed., 2001). 96 ROBIN CHURCHILL & VAUGHAN LOWE, THE LAW OF THE SEA 64 (1999). 97 Id. at 63.

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even absent such a right, the port state may well risk to incur international legal responsibility if the closure were to be conducted in a manifestly unreasonable or discriminatory manner. The question therefore seems to be justified what really remains of the principle on which near unanimity seems to exist in the legal literature, namely that vessels have no right to enter foreign ports under international law? This question becomes even more pertinent if one considers that states, which in the past had been rather reluctant to grant port access to foreign vessels, today take a completely new approach to the issue. China for one, after having become a cartel member of WTO on 11 December 2001, is said to have “taken a fresh look at port access”.98 The evolution in Russia seems even more remarkable. Today one can read in their new Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation: “All foreign ships, except warships and other government ships used for non-commercial purposes, regardless of their intended use and form of ownership (hereinafter referred to as “foreign ships”), may call in the seaports opened for calls by foreign ships”.99 The only possible exception to this right of access to port in this Russian enactment is reciprocity: “In respect of foreign ships of States in which there are special restrictions on calls by similar ships of the Russian Federation in their seaports, the Government of the Russian Federation may establish counter-restrictions”.100 But even that is obviously not mandatory for the Russian Government. Such a system clearly represents no longer mere comity, or even a presumption in favor of port access, but rather constitutes the granting of an enforceable legal right to the world at large by an important maritime nation. The ICJ, in the above-mentioned Nicaragua Case, also specifically emphasized at different occasions that if a states enjoys a right of access to the ports of another state, this right of access may not be hindered: Not only through the laying of mines in port, as occurred in the case at hand,101 but probably also by a decision of a regional fisheries management organization, especially if the port state is not a party to that organization. It is therefore suggested that a clear distinction should be made between the right of access to port on the one hand, which appears to be an avenue wrought with legal difficulties as discussed above, and the application of the laws and regulations of the port state on foreign vessels voluntarily in port on the other. 2. Application of the laws and regulations of port states to foreign vessels voluntarily in port No doubt exists that vessels voluntarily in port are subject to the laws and regulations of the port state, since the latter has full sovereignty over its internal 98 Mark S. Hamilton, Negotiating Port Access: The Sino-U.S. Opportunity for Leadership in the Maritime Transport Services Industry, 3 ASIAN-PAC. L. & POL’Y J. 153, 180 (2002). 99 Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation, art. 6(1), July 17, 1998, reprinted in 46 LAW OF THE SEA BULLETIN 16, 18 (2002) [hereinafter Russian Act on Certain Maritime Zones]. 100 Id., at art. 6(2). 101 Nicaragua Case, supra note 85, ¶¶ 214, 253.

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waters.102 To revert once again to the recent Russian legislation: “The criminal, civil and administrative jurisdiction of the Russian Federation shall apply to foreign ships and passengers and crew members on board such ships while the ships are in the seaport”.103 This position is fully sustained by authoritative commentators.104 In port the authority of the port state trumps that of the flag state. Nevertheless, these same authors also stress that this primary competence of the port state, because inter alia of economic realities, is rarely exercised in daily practice. Only if the activity on board a ship affects the port state, the latter is inclined to interfere. Belgium learned this the hard way in the Wildenhus Case.105 The conclusion therefore seems to be justified, as remarked by Professor McDorman, that “Port state control, while clearly supportable by international law, interferes with the traditional expectations of visiting foreign vessels to be left alone while in port”.106 Moreover, he coherently argues that this power of the port state, even in theory, is not unlimited.107 In principle, customary international law restricts the coastal state to enforce national laws and regulations directly relating to the activities of a foreign vessel taking place while in port. Customary international law today also allows the port state to take action with respect to activities of that vessel which took place in its waters (territorial sea or exclusive economic zone) prior to entry.108 The condition here is that the national laws and regulations are in accordance with the 1982 Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels. Customary international law does not grant the port state such competence if the activity in question took place on the high seas or in waters of a third state without the port state being directly affected by such activity, unless the activity in question is governed by the universality principle, such as piracy or slave trade.109 It does not appear, however, that contemporary international law considers marine pollution or IUU fishing on the high seas as activities falling under the universality principle. Under treaty law, on the other hand, some remedy is provided in the 1982 Convention with respect to certain activities of foreign ships outside the territorial sea or exclusive economic zone of the port state under similar conditions as those just mentioned with respect to Art. 220 (1).110 But Art. 218 has not yet reached the status of customary international law, meaning that only the parties to the 1982 Convention can benefit from it.111

102

1982 Convention, art. 11. Russian Act on Certain Maritime Zones, supra note 99, at art. 6(3). 104 Churchill & Lowe, supra note 96, at 65. 105 Mali v. Keeper of the Common Jail, 120 U.S. 1 (1887). 106 McDorman, supra note 92, at 211. 107 Id., at 216. 108 1982 Convention, art. 220(1). 109 Tatjana Keselj, Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding, 30 OCEAN DEV. & INT’L L. 127, 136 (1999). 110 1982 Convention, art. 218. 111 McDorman, supra note 91, at 320. 103

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How to apply the above legal analysis to IUU fishing activities on the high seas? Since these activities have no relation to the behavior of a ship in port, enforcement action by the port state based on customary law appears difficult to justify.112 Unlike with respect to vessel-source pollution, the 1982 Convention does not contain a specific article concerning IUU fisheries similar to Art. 218. Such a provision did later find its way into the 1995 U.N. Fish Stocks Agreement, it is true, but not without difficulty.113 Beyond the shadow of a doubt, Art. 23 of the 1995 U.N. Fish Stocks Agreement does not form part of customary international law. It does therefore only bind the parties to that agreement. When compared to the number of parties to the 1982 Convention, it must be concluded that only a small group of countries is at present legally bound by that provision. It can nevertheless be added here that Art. 33 of the 1995 U.N. Fish Stocks Agreement, which specifically addresses the issue of non-parties and states that measures consistent with international law can be taken by state parties to deter fishing activities undermining the effective implementation of that agreement, has been said to possibly allow prohibition of landings in ports of catches taken on the high seas contrary to agreed conservation measures.114 Others, however, are more skeptical based on the resistance encountered in this respect in regional fisheries management organizations.115 A possible way out is to try to establish that the port state is directly affected by the IUU fishing beyond its maritime zones. Support for this approach can be found in the Appellate Body report of 22 October 2001 with respect to the Shrimp/Turtle case. If a sufficient nexus is found, the natural resources sought to be protected might well be located beyond the national jurisdiction of

112 With respect to IUU fishing activities in the territorial sea the port state has full competence based on the principle of sovereignty and the fact that such fishing is moreover explicitly considered to be prejudicial to the peace, good order or security of the coastal state (1982 Convention, art. 19(2)(i)). Concerning fishing activities in the exclusive economic zone of the port state, that same convention explicitly provides for the power to regulate the landing of all or any part of the catch fished by foreign vessels (1982 Convention, art. 62(3)(h)). As stressed by D.H. Anderson, The Regulation of Fishing and Related Activities in Exclusive Economic Zones, in THE EXCLUSIVE ECONOMIC ZONE AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982-2000: A FIRST ASSESSMENT OF STATE PRACTICE 31, 35-36 (Erik Franckx & Philippe Gauthier eds., 2002), this allows the state to check the catch of fish in its exclusive economic zone. See also Chapter 5 in this volume, Illegal, Unreported, and Unregulated (IUU) Fishing: Global and Regional Responses by Moritaka Hayashi. 113 Erik Franckx, Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea, supra note 30, at 69-70, and by the same author Pacta Tertiis and 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 & Management of Straddling Fish Stocks & Highly Migratory Fish Stocks, id. at 19-20. 114 D.H. Anderson, The Straddling Stocks Agreement of 1995—An Initial Assessment, 45 INT’L & COMP. L.Q. 463, 473 (1996); Orrego Vicuna, supra note 24, at 261-266. 115 See e.g., Ronald Barston, The Law of the Sea and Regional Fisheries Organizations, 14 INT’L J. MAR. & COASTAL L. 333, 352 (1999).

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the state in question.116 In this case, according to the same author, it is believed that the fact that the highly migratory resource in question also sojourned in the U.S. maritime zones proved to constitute sufficient nexus for the panel to allow the United States to impose trade-restrictive measures. 3. Conclusions on port state control It seems therefore safe to conclude that one should rather concentrate on the second alternative, rather than on the denial of port access.117 To consider both options, on equal footing, as possible actions to be considered based on the principle of full sovereignty of a state over its ports,118 does not seem to be fully justified for the above mentioned reasons. Practice seems to confirm this submission. The genesis of the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, as well as its later implementation by means of national legislation, illustrate the kind of difficulties involved.119 Even though the convention had initially contained mandatory provisions requiring parties to “deny” access, the final version merely provided a discretionary measure for parties to “restrict” access.120 Or as stated by Hewison in this respect: “Restricting the use of port servicing facilities would no doubt deter driftnet vessels from entering ports and would overcome any policy difficulties a coastal State may have over actually closing its ports to foreign vessels”.121 It is probably no coincidence that regional fisheries management organizations tend to follow a similar approach. This is the case for CCAMLR,122 ICCAT,123 NEAFC,124 NAFO,125 and MHLC.126 It should moreover be stressed that this competence is often further qualified by statements obliging the port state to exercise this competence in accordance with international law. SEAFO follows a similar course in this respect.127 Its article on port state duties and measures taken by a port state128 is modeled on the relative provision

116

Louise De La Fayette, United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia. WT/DS58/AB/RW, 96 AM. J. INT’L L. 685, 690 (2002). 117 This approach seems to be reflected in the Draft Memorandum of Understanding on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, under “Commitments,” as appended to the FAO Expert Consultation on IUU fishing, supra note 43, at 13, 13-14. 118 As apparently implied by David Balton, Recent Developments in International Law Related to Marine Conservation, SG056 ALI-ABA 169, 177 (2002). 119 Grant J. Hewison, The Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, 25 CASE W. RES. J. INT’L L. 449, 507-11 (1993). 120 Id. at notes 18 and 320. 121 Id. at 508. 122 Franckx, supra note 17, at 63. 123 Id. at 84. 124 Id. at 95. 125 Id. at 105. 126 Id. at 118-19. 127 Id. at 131-32. 128 SEAFO Convention, art. 15.

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of the 1995 U.N. Fish Stocks Agreement.129 It has been stressed that the SEAFO Convention uses much more mandatory language, since in several instances the word “may”, as it occurs in the 1995 U.N. Fish Stocks Agreement, was replaced by the word “shall”.130 At the same time it should be noted that though the 1995 U.N. Fish Stocks Agreement already contained a number qualifying references, requiring the different paragraphs to be “in accordance with international law”, the SEAFO Convention not only added more of those, but also crafted a new concluding paragraph stating once more: “All measures taken under this article shall be taken in accordance with international law”.131 One simply wonders what this provisions might still add to the many similar references already present in that article, if not to convey the idea to the state parties to apply this provision with utmost care.

IV. Conclusions The Southeast Atlantic region has played a pioneering role in the establishment of a regional fishery organization aiming at the conservation and management of the high seas living resources in the area. It does not really matter whether the SEAFO Convention was the first international fisheries organization established to implement the 1995 U.N. Fish Stocks Agreement in practice,132 or whether it rather followed the practice set elsewhere.133 It might probably be advisable to call them both the first concluded agreements to regionally implement the provisions of the Straddling Stocks Agreement, since it was adopted in 1995”.134 For they both will serve as examples for other regional fisheries organizations, either existing ones trying to reorganize themselves, or new ones still to be created. And each of them will do so in their own way. For, indeed, it has already been argued that the ideal example to be followed does not really exist in practice. As stated elsewhere by the present author: “To take the two most recent examples as point of reference: The MHLC certainly has the most progressive voting system but is handicapped by its closed character. The SEAFO on the other hand scores extremely well on the membership and accession issue, a little bit less on the voting procedures, but totally insufficient on the issue of so-called fishing entities . . . where the MHLC, once again, could well serve as example for other RFOs”.135 129 1995 U.N. Fish Stocks Agreement, art. 23. As mentioned in the 2002 LOS Report of the Secretary-General, supra note 22, at 36. 130 Jackson, supra note 12, at 44. 131 SEAFO Convention, art. 15(6). 132 As repeatedly stressed by Sydnes, supra note 13, at 353, 356-357, 360 and 361. 133 Violanda Botet, Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean, 41 VA. J. INT’L L. 787, 813 note 124 (2001), implying that the MHLC served as example for the SEAFO Convention. 134 J. Wiener et al., International Legal Developments in Review: 2001—Environmental Law, 36 INT’L LAW. 619, 639 (2002). See also supra note 22 and accompanying text for a similar approach taken by the Secretary-General of the United Nations in his latest yearly report on the oceans and the law of the sea. 135 Franckx, supra note 17, at 161.

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Worth emphasizing with respect to the SEAFO Convention is certainly the application inter partes of the novel principles contained in the 1995 U.N. Fish Stocks Agreement to discrete high seas fish stock. This constitutes an interesting development which others might consider a precedent to be followed in the future. Another interesting feature with respect to the SEAFO Convention is also that the negotiators to a certain extent acted pro-actively, i.e. at a time that no acute problem was in existence between the different players in the region. This is rather exceptional and in this particular case turned even out to be problematical to the extent that if the fishing effort does not increase in the near future this might well have a negative influence on the viability of this organization.136 And this finally brings us to the importance of the entry into force of the SEAFO Convention, which would certainly further enhance its over-all signal function. Ratification will moreover prove essential in order to assess the true nature of this instrument, for much still depends on how the Commission will finally fill in the rather broad framework established by the SEAFO Convention in further detail.

136

See supra note 21 and accompanying text.

Part 3. Technology and Sea-Bed Issues

CHAPTER 9

The UNESCO Convention on Underwater Cultural Heritage: A Spanish View Carlos Espósito & Cristina Fraile

The UNESCO Convention on the Protection of the Underwater Cultural Heritage was adopted on November 2, 2001.1 This new international treaty is intended “to ensure and strengthen the protection of underwater cultural heritage”2 for the benefit of humanity. It was generally accepted that the development of international law concerning underwater cultural heritage (“UCH”) through a treaty was needed. Indeed, the law regulating the field until now is fragmented and deficient and manifestly lacks the capacity to protect UCH efficiently from 1

Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, 41 I.L.M. 40 [hereinafter the UNESCO Convention], available at http://www.unesco.org/ culture/laws/underwater/html_eng/convention.shtml (last visited Sept. 25, 2002); see PATRICK J. O’KEEFE, SHIPWRECKED HERITAGE: A COMMENTARY ON THE UNESCO CONVENTION ON UNDERWATER CULTURAL HERITAGE (2002); Guido Carducci, New Developments in the Law of The Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 95 AM. J. INT’L L. 419 (2002) [an extended Italian version of this article may be found in 85 RIVISTA DI DIRITTO INTERNAZIONALE 53 (2002)]; Craig Forrest, A New International Regime for the Protection of Underwater Cultural Heritage, 51 INT’L & COMP. L.Q. 511 (2002). 2 UNESCO Convention, supra note 1, at art. 2(1). 201 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 201-23. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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damage or even looting. The first Part of this Chapter describes the context and origin of the UNESCO Convention. It briefly describes international law on the protection of UCH as it stands in the United Nations Convention on the Law of the Sea3 and provides a brief account of the negotiations of the UNESCO Convention, its participants, and the values and interests at stake. Part II contains a general analysis of the UNESCO Convention, with an emphasis on certain particularly controversial concepts, such as the definition of UCH, the status of State vessels, the relationship between UNCLOS and the UNESCO Convention, the regimes of jurisdiction and protection of UCH in the different maritime zones, and the prohibition of commercial activities. We conclude with an appreciation of the general exercise and its potential efficacy.

I. The International Legal Context of the UNESCO Convention Until the adoption of the UNESCO Convention international law regulating the protection of UCH was fragmented and deficient. There are many legal spheres involved: the law of the sea, salvage law and other admiralty laws,4 cultural heritage law,5 and other international and domestic laws.6 Although this Chapter emphasizes the aspects of the law of the sea related to the protection of UCH, it is also relevant that the protection of UCH includes geographical, archaeological and technical, and not only legal aspects. Indeed, the evolution of the protection of UCH was pushed by improvements in submarine technology over the last decades of the twentieth century.

A. The Regulation of UCH in UNCLOS UNCLOS has only two articles regulating the protection of UCH: articles 149 and 303.7 Article 303(1) establishes a general obligation of protection and co3

United Nations Convention on the Law of the Sea, Montego Bay, Dec. 10, 1982, entered into force Nov. 16, 1994, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 [hereinafter UNCLOS]. 4 See International Convention on Salvage, Apr. 28, 1989, IMO Doc. LEG/ CONF.7/27 (May 2, 1989). See infra Part II (discussing the issue of salvage in the UNESCO Convention). 5 See Hague Convention on the Protection of Cultural Heritage in the Event of Armed Conflict (1954), 294 U.N.T.S. 215; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), 10 I.L.M. 289; Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), 1037 U.N.T.S. 151. 6 See LEGAL PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: NATIONAL AND INTERNATIONAL PERSPECTIVES (Sarah Dromgoole, ed., 1999) (discussing domestic laws). 7 See generally ANASTASIA STRATI, THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE: AN EMERGING OBJECTIVE OF THE CONTEMPORARY LAW OF THE SEA (1995); Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea:

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operation with regard to the underwater cultural heritage, wherever the objects may be found in the sea. It provides that “States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose.”8 Although this principle in itself was a great innovation, its effectiveness demanded development of a system of implementation beyond the capacity of UNCLOS. Notwithstanding this shortcoming, the principle continues to be valid today and certainly is one of the fundamental tenets of the new UNESCO Convention.9 The other paragraphs of Article 303 and Article 149 regulate some jurisdictional aspects of the protection of UCH, such as jurisdiction over objects found in the contiguous zone10 and the Area,11 and establish without prejudice clauses regarding salvage law, practices and regulations on cultural exchanges,12 and “other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.”13 We will come back to the meaning of these provisions in the next Part of this Chapter. Here, it suffices to insist on the deficient and fragmented manner in which the UNCLOS regulated the protection of UCH.

B. The Negotiating Process, the Participants and their Interests The development of new technologies, combined with free access to archives and other historic sources, opened the way to the location, exploration and extraction of pieces of UCH. This submerged form of cultural heritage is particularly fragile and susceptible to damage, with resulting loss of historical, archaeological, and cultural value, from any activity directed at it without the necessary The Ninth Session (1980), 75 AM. J. INT’L L. 211 (1981); Bernard H. Oxman, Marine Archaeology and the International Law of the Sea, 12 COLUM.-VLA J.L. & ARTS 353; Jean-Paul Beurier, Pour un Droit international de l'archéologie sous-marine, 93 REVUE GÉNÉRAL DE DROIT INTERNATIONAL PUBLIQUE 45 (1989); Lucius Caflisch, Submarine Antiquities and the International Law of the Sea, NETH. Y.B. INT'L L. 3 (1982); Tullio Treves, Stato costiero e archeologia marina, 76 RIVISTA DI DIRITTO INTERNAZIONALE 98 (1993). 8 Emphasis added. 9 See Craig Forrest, supra note 1, at 514. 10 UNCLOS art. 303(2) (“In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the sea-bead in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article [customs, fiscal, immigration or sanitary laws regulations].”). 11 UNCLOS art. 149 (“All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.”). 12 UNCLOS, art. 303(3) (“Nothing in this article affects the rights of identifiable owners, the law of salvage and other rules of admiralty, or laws and practices with respect to cultural exchanges.”). 13 UNCLOS art. 303(4) (“This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.”).

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care and knowledge. These considerations, plus several episodes of looting, led some States in the early 1990’s at UNESCO in Paris to start negotiations aimed at protecting UCH from damage and looting. The need for new law in this field was also evidenced by the commercialization of artifacts recovered from sunken ships and the controversial decisions by some domestic tribunals granting rights of exploration and exploitation over shipwrecks situated well beyond their jurisdiction.14 It was a difficult negotiation both for substantive and procedural reasons. Indeed, as noted,15 the subject covered many overlapping spheres of law. The protection of cultural heritage was clearly under the mandate of UNESCO, but the law of the sea was not. This circumstance led some States to suggest that the negotiation had to be undertaken at the United Nations. However, this argument was made with a view toward dodging the rules of UNESCO, which grant any Member the right to request a vote on proposals at any time. Also, the technical issues raised masked political positions strongly defended by States. 16 The complications increased precisely because of the polarization of two main blocks of States during the negotiations of the UNESCO Convention: the coastal States, and the old and present maritime powers. The first group, a clear majority, included coastal states of Latin America, Caribbean, Africa (the Group of 77, sometimes referred to also as the Santo Domingo Group17), plus Canada and Australia; the second, so-called like-minded18 group, included the U.K., USA,19 Germany, Spain, Norway, The Netherlands, Russia, Sweden, Finland, France, and Japan. Italy,20 Portugal, and Greece had mixed positions determined by their shared objective of increasing the protection of UCH in their territorial seas and contiguous zones.

14 The most famous case is the R.M.S. Titanic, a ship which sank some 640 kilometers off the coast of Newfoundland. The shipwreck is not UCH under the UNESCO Convention; however, it clearly shows how far admiralty courts can go when granting rights to salvors. See R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999), reprinted in 38 I.L.M. 796. 15 See supra notes 4-6. 16 Of course, the views of archaeologists and private companies were advanced, with different weight, through national delegations. One may say that archaeologists were in favor of the maximun protection (i.e., by the creation of new zones of protection beyond the contiguous zone), while private companies supported a broad application of the laws of salvage and finds for UCH. 17 See infra note 29, and accompanying text. 18 This name proved to be a sort of irony while the negotiations advanced, and it became evident by the end of the negotiations that the members of group had very different positions on relevant issues regulated by the UNESCO Convention. This is evidenced by their final votes on the adoption of the UNESCO Convention. For the results of the voting procedure, see infra note 38 and the accompanying text. 19 The U.S. participated as an observer, since it was not a member of the UNESCO. However, the American delegation intervened actively during the whole negotiating process, either by themselves or through the cooperation of other delegations. 20 It must be said that Italy, while sharing some goals with the coastal States group, played a very important conciliatory role in several phases of the negotiation, particularly through the proposals of Professor Tullio Scovazzi.

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1. The Like-Minded Group Although the interests of individual States within the like-minded group differ greatly, its main arguments may be summarized as follows: N The defense of the rights and interests of flag States vis à vis the claims of the coastal States, the majority of which were deemed extravagant by the like-minded group. Both groups based their positions in a divergent interpretation of the pertinent articles of UNCLOS. N The need to establish a clear link between the new Convention and UNCLOS. The like-minded States considered that the UNESCO Convention had to be drafted in full conformity with UNCLOS.21 N The defense of consensus instead of the use of normal UNESCO voting procedures during the negotiations. As a clear minority, the likeminded group needed the rule of consensus to advance their positions. However, UNESCO procedures provide for voting, and the threat of a request to vote from the coastal States group was ever present. Although it should be noted that the coastal States group also needed the consensus rule up to some point, because they were fully aware of the futility of a Pyrrhic victory. 2. The Coastal States Group The coastal States group also included diverse views. The strong presence of the Latin American countries is logical, since they have numerous and significant pieces of UCH in their coastal waters, and most of them have extensive coasts. Canada and Australia had a similar position. The presence of Portugal within the group was not unequivocal, because it had few things in common with the rest of the group, and perhaps even more in common with the like-minded group. However, the Portuguese delegation, at least until the last meeting of experts, maintained a position based mainly on archaeological considerations instead of purely legal or political ones. The main arguments presented by the coastal States group can be summarized as follows: N A particular interest in avoiding any special treatment to State vessels in the Convention. They would have excluded the concept from the future international instrument. Similarly, they rejected any express mention of sovereign immunity of State vessels. N The UNESCO Convention was not to be limited by UNCLOS. The latter was only a starting point to develop a new legal regime for the protection of UCH. N The recognition of broad powers to coastal States regarding the protection of UCH in their maritime zones, including the EEZ and the continental shelf. N Scrupulous adherence to the procedural rules of UNESCO, which provide for the right to request a vote at any time by any member of the Organization.

21

See infra Part II.

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As for the Spanish position during the negotiations, as already said, Spain initially joined the like-minded group of States due to its position as a maritime power with UCH located far from its coasts, mainly in proximity to Latin American coasts. These facts led Spain to defend a strong regime of protection for UCH, wherever they were situated in the sea. However, as the negotiations evolved, Spain gradually moved away from some positions of the like-minded group, mainly because the Spanish delegation was prepared to support the adoption of a universal convention, even at the cost of compromising some of its views. This shift in part reflects Spain’s belief that it could complement the Convention with bilateral or regional agreements in order to improve the protection of UCH. In the view of the Spanish negotiators, the purpose of these possible agreements was not to claim the ownership of artifacts recovered from shipwrecks, but to cooperate with the coastal State in their recovery, preservation and public exhibition. Concerning jurisdiction, although Spain preferred not to recognize new powers in coastal States beyond those granted by UNCLOS,22 it was prepared to acknowledge a primary coastal state coordinating function in zones under their jurisdiction. In parallel, Spain fought for the recognition of certain specific rights to those States which could prove a cultural, historical or archaeological link with the shipwreck. Last, but not least, Spain firmly supported the inclusion of a provision containing an express recognition of special rights for flag States over State vessels, such as previous consent to begin activities directed at UCH, and a right to be consulted and informed of those activities.23 3. The Negotiations In 1993 the Executive Council of the UNESCO invited its Director General to elaborate a new instrument for the protection of UCH. Early meetings took place 22

In one of the early documents on UCH, Doc. 28 C/39, adopted by the General Conference of the UNESCO on 15 Oct. 1995, there was a curious Spanish proposal to establish a 100 miles zone of protection for UCH. Apparently, this was a proposal originated in the Ministry of Culture, and was not negotiated with other Ministries, such as Foreign Affairs and Fisheries. By the first UNESCO meeting on the UCH, the Spanish position was rectified, and it was clear that Spain rejected the recognition of any maritime zone other than those established by the UNCLOS. Having said that, we have to say also that there is a formal contradiction in the Spanish legal framework for the regulation national heritage in the sea, because the Law 16/85, of June 26, 1985, provides for a maximalist thesis of jurisdiction. Indeed, it requires the authorization of Spanish authorities on any UCH protection not only within the territorial sea and contiguous zone, but in all Spanish jurisdictional zones. We have not found any practice related to this provision. However, we would argue that, although this provision may at some point be enforced by administrative authorities, it would be declared invalid by judicial courts. The reason is simple: according to the Spanish legal system, international law has primacy over domestic law, and the quoted provision could be interpreted as a violation of UNCLOS. The latter argument will be compelling after the entry into force of the UNESCO Convention. See generally, Esther Zarza Álvarez, Spain, in Dromgoole (ed.), see supra note 1, at 143; see also Valentín Bou and Romualdo Bermejo, L’Espagne et le Droit de la Mer, in THE LAW OF THE SEA: THE EUROPEAN UNION AND ITS MEMBERS 449 (Tullio Treves, ed., 1997). 23 See infra Part II.

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at UNESCO in Paris from May 22 to 24, 1996.24 In those first meetings it was proposed to take the Buenos Aires Draft Convention on the Protection of UCH25 as a basis for the negotiation of a universal convention. Resolution 21 of the 29th Conference invited the Director General of the UNESCO to elaborate a proposal for the Convention.26 The First Meeting of governmental experts took place from June 29 to July 2, 1998.27 The experts began discussion of a project of articles based in the Buenos Aires Proposed Articles and prepared by the UNESCO and the United Nations Division of Ocean Affairs and the Law of the Sea (DOALOS), with the cooperation of the International Maritime Organization (IMO). The main interest groups and different governmental positions were already visible at this meeting. The principal controversial issues of the draft were also apparent: the definition of UCH, the relationship of the text to UNCLOS and the ICOMOS Charter on the Protection and Management of the UCH,28 the inclusion of warships or State vessels within the scope of the Convention, and the regime for each of the maritime zones as defined by UNCLOS. Beginning with this meeting, the Latin American countries, led by Chile and Argentina, spoke with one voice. They had convened a meeting in Santo Domingo on June 14-17, 1998, named “Comisión Técnica sobre Patrimonio Subacuático,” where they arrived at a common position. Their standpoints were later expressed in the so-called Santo Domingo Declaration, from which the following line is key: “The underwater natural resources pertain to the State where they have been found and constitute the heritage of all persons.”29 The Second Meeting of governmental experts occurred from April 19 to 24, 1999.30 The coastal States Group defended its position, which some other States was against the law of the sea, and therefore could not constitute its progressive development. Spain joined the latter opinion, and its two main points during the negotiations were the recognition of sovereign immunities of state vessels and 24 See U.N. Docs. 28 C/39 and 28 C/39 Add, approved by the General Conference on October 15 and 31, 1995, respectively; see also U.N. Res. 28 C/3.13, adopted by the General Conference of the UNESCO on Nov. 1995. 25 The International Law Association adopted this Draft Convention in the its plenary session of Buenos Aires in 1994. The ILA Draft Convention was then transmitted to the UNESCO. For commentary, see Patrick O’Keefe and James Nafziger, The Draft Convention on the Protection of the Underwater Cultural Heritage, 25 OCEAN DEV. & INT’L L. 391 (1994); Janet Blake, The Protection of Underwater Cultural Heritage, 45 INT’L & COMP. L.Q. 819 (1996). 26 U.N. Doc. 29C/Resolution 21. 27 See Report Doc.CLT-98/CONF. 202/7. 28 International Council for Monuments and Sites (ICOMOS) is an international NGO set up in Varsovia in 1965, after the adoption of the International Charter for the Conservation and Restoration of Historic and Artistic Monuments and Sites (the Venice Charter). The International Charter on the protection and Management of the UCH, adopted the General Assembly of the ICOMOS during its meeting in Sofia on October 59, 1996, contains the rules for proper archaeological behavior with regard to activities directed at UCH. See infra Part II. 29 “Los recursos naturales subacuáticos pertenecen al Estado donde han sido encontrados y constituyen el patrimonio de todos los hombres”. 30 See Report Doc. CLT-99/CONF. 204.

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the denial of new rights to coastal States other than those admitted in UNCLOS. Spain rejected a mere archaeological understanding of UCH and, consequently, studied a middle way to approach the two extreme positions. Thus, in concert with other States, such as Italy and Portugal, it proposed both the recognition of coastal state rights in internal waters and the EEZ with the express authorization of the flag State, and the establishment of the principle of cooperation.31 The Second Meeting made considerable advances in the adoption of technical rules applicable to UCH, already called “the Annex” at this stage. The Annex contains archaeological rules especially adapted from the ICOMOS Charter to the marine environment. The uncontroversial consensus on the wording of these rules reflected the harmony of views among the scientific community – in sharp contrast with the difficulties encountered in drafting the provisions of the Convention itself. Already at this stage, some delegations began to suggest that the negotiations should move to another forum.32 The Third Meeting of governmental experts took place from July 3 to 7, 2000.33 The division of opinions between the so-called like-minded States and the coastal States remained intact. Fearing a serious disruption to the negotiations, some delegations convened informal groups to foster the negotiating process immediately before the Third and Fourth meetings. Thus, the like-minded group met in London, and then again in Paris a few weeks before the formal meetings, with the participation of Argentina and Canada. The Latin American and other members of the coastal States group also met informally before the official meetings of experts. In the meantime, on his own initiative, Mr. Lund, coordinator of the negotiations, organized a series of meetings and working groups.34 The Fourth Meeting of governmental experts convened from March 26 to April 7, 2001, however, due to the lack of agreement, had to be reconvened from July 2 to 7, 2001. The Convention was adopted at the last session of the second part of the Fourth Meeting. In conformity with the rules of the UNESCO,35 and at the request of Russia, the draft was submitted to a vote, and was adopted with 31

See infra Part II. Indeed, the U.S. delegation tried to move the negotiations to other forum, because it believed that the UNESCO was not technically and professionally prepared to host the negotiations. Besides, the U.S. delegation may have encountered inconveniences stemming from its condition of “observer” during the negotiations—although one must say that it was much more than a mere observer. Norway, discontent with the evolution of the negotiations, also tried to take the negotiations out of the UNESCO and take it to the United Nations. Obviously, none of these initiatives succeeded. 33 See Report Doc. CLT-2000/CONF. 201/7. 34 The first group was in charge of definitions, zones of jurisdiction, sovereign immunities, regional agreements and scope of application. The second was responsible for the contents of articles 8 to 17. The third group analyzed the archaeological rules, and the fourth studied the final clauses. 35 See Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the Terms of Article IV, ¶ 4, of the Constitution of the UNESCO, adopted by the General Conference at its 5th Session (5 C/Resolutions 133-34), and amended at its 7th Session (7 C/Resolutions, at 109), 17th (17 C/Resolutions, at 114) and 25th (25 C/Resolutions, at 194) sessions, available at http://unesdoc.unesco.org/images/0012/001255/125590e.pdf (last visited Sept. 25, 2002). 32

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49 votes in favor (Canada, Japan, Australia, the Group of 77, Portugal, Spain, Italy, Ireland, Belgium, Austria, Denmark and Finland), 8 abstentions (Sweden, The Netherlands, Germany, France, Greece, the United Kingdom, Chile and Hungary), and 4 votes against (Norway, Russia, Turkey and Venezuela).36 The reasons for the abstentions and contrary votes are varied: some countries rejected the provisions bearing on the EEZ and State vessels as going too far or not recognizing sufficient rights in coastal states, while others voted against the articles because of bilateral problems with their neighbors. On October 30, 2001, the Culture Commission recommended37 the adoption of the draft by the UNESCO General Conference, which adopted the UNESCO Convention on November 2, 2001,38 with 87 votes in favor, 4 against, and 15 abstentions (Germany, Colombia, France, Greece, Guinea-Bissau, Iceland, Israel, The Netherlands, Paraguay, United Kingdom, Check Republic, Sweden and Swiss). In accordance with UNESCO procedures, copies in the six official languages were signed on November 6, 2001 by the President of the General Conference, Mr. Ahmad Jalali, and by the Director General of the UNESCO, Mr. Koichiro Matsuura. From that moment, the UNESCO Convention is open for State’s ratification, acceptance, approval or adherence.

II. The Substantive Law of the UNESCO Convention The Preamble of the UNESCO Convention states the importance of UCH as “an integral part of the cultural heritage of humanity” and describes the threats caused by the lack of its appropriate regulation. It also establishes that the object and purpose of the Convention is the protection and preservation of the UCH, and declares that “responsibility therefore rests with all States.”

A. The Definition of UCH in the UNESCO Convention Article 1 defines the terms and, more fundamentally, the concepts used in the UNESCO Convention. The definition of UCH is of a fundamental importance for the whole text and was the focus of arduous discussions. The Article provides that UCH “means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.” The definition makes an anthropological reference (all traces of human existence) and assumes that heritage may have a very broad nature (cultural, historical or archaeological). It establishes two limitations: first, a geographical one because the heritage must be underwater; second, a temporal one because it must have been there at least for

36

As noted above, the U.S. participated actively in the negotiations, but could not vote because it was not a member of the UNESCO. Non-members may, however, adhere to the UNESCO Convention as provided by its Article 26. 37 U.N. Doc. 31C/Resolutions, XV, ¶ D. 38 U.N. Doc. 31C/24.

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100 years.39 Some experts proposed the inclusion of a criterion of significance by the addition of the words “archeologically and historically significance” after UCH. This was intended to narrow application of the Convention and make it effective and practicable.40 However, the proposal was rejected by the majority of delegations as an ineffective criterion. They argued that the great advantage of the 100 years limit is its objective character compared to such other criteria as archaeological significance. Besides, the lack of a significance criterion in the Convention does not preclude the existence of national or international register systems which may help to administer The wide scope of the definition is further exemplified in the same article, which specifies that UCH may appear as: (i) sites, structures, buildings, artifacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character. The definition does not include pipelines and cables placed on the seabed. Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage.

B. Activities Covered The UNESCO Convention only covers activities directed at UCH. However, it does refer to activities incidentally affecting UCH, such as fishing or mining activities. These concepts are defined in paragraphs 6 and 7 of the UNESCO Convention as follows: 6. “Activities directed at underwater cultural heritage” means activities having underwater cultural heritage as their primary object and which may, directly or indirectly, physically disturb or otherwise damage underwater cultural heritage. 7. “Activities incidentally affecting underwater cultural heritage” means activities which, despite not having underwater cultural heritage as their primary object or one of their objects, may physically disturb or otherwise damage underwater cultural heritage. The relevance of the latter may be great, and therefore Article 5 provides that States Parties “shall use the best practicable means at its disposal to prevent or mitigate any adverse effects” arising from activities incidentally affecting UCH under their jurisdiction.

39

Some proposed to expand to “at least 100 years plus 100 years old” the time criterion for UCH. 40 The U.S. and the U.K. defended the introduction of this criterion. For a scholarly critique, see David Bederman, The UNESCO Draft Convention on Underwater Cultural Heritage: A Critique and Counter-Proposal, 30 J. MAR. L. & COM. 331, 332-334 (1999) (affirming that, without a criterion of significance, “the concept falsely equates age with historical significance.”).

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C. Geographical Scope The UNESCO Convention regulates UCH located in the sea. However, there are two qualifications. Article 28 provides for the possibility of expanding the application of the Rules contained in the Annex to inland waters not of a maritime character. The proposal came originally from States concerned with the protection of UCH located in rivers, such as the Danube. Article 29 provides for the possibility that States Parties may limit the geographical application of the UNESCO Convention to specific parts of their territory, internal waters, archipelagic waters or territorial sea. Any declaration with this aim shall state a specific purpose and should not be deemed perpetual. Indeed, each State must make reasonable efforts to enable application of the Convention to all its territory and withdraw these declarations as soon as possible. This exception was introduced to solve the problems of Federal States, which do not have the power to impose the provisions of the UNESCO Convention on maritime areas that are subject to the jurisdiction of the federal government.

D. State Vessels A crucial issue during the negotiation was the definition of State vessels and aircraft and the determination of the legal regime applicable to them. Initially the basic concept was provided by UNCLOS Article 29, according to which a warship is “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” UNCLOS accepts the existence of a wider concept of State vessels which are mentioned in several provisions, but not thoroughly defined by them. Consistent with this approach, UNCLOS Article 32 provides that “nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.” The wider concept of State vessel was clearly more convenient for the Spanish position due to the fact that most of its sunken galleons, which took part in the Flota de Indias, would not fall within the concept of warship as provided by Article 29 of UNCLOS. On the contrary, they could easily be categorized as other government ships operated for non-commercial purposes. Despite the fact that other States of the like-minded group were satisfied with the narrower concept of warship,41 the group initially opted for the widest possible concept in order to accommodate the interests of all maritime powers. While sovereign immunity of warships is generally accepted—e.g., in UNCLOS Article 32—there is no consensus as to whether the rule applies to State vessels that have been underwater for more than 100 years.42 Whereas Spain, the 41

This was the case of the U.S., whose sunken fleet consists mainly of twentieth century warships. 42 Cf. David J. Bederman, Rethinking the Legal Status of Sunken Warships, 31 OCEAN DEV. & INT’L L. 97 (2000).

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United Kingdom or the United States were of the view that immunity remains irrespective of when and where the sinking took place, other States, including some members of the like-minded group, had more difficulty in accepting this broader view and argued that international law does not clearly establish that immunity continues after sinking without regard to time and place. The latter States, mainly Sweden and Finland, were therefore reluctant to accept the legal regime advanced by those supportive of absolute and immutable immunity for State vessels, which would require the flag State’s consent for any activity directed at UCH meeting the criteria of State vessel and would confer on the flag State the right to participate in those activities. On the contrary, those reluctant States were rather inclined to recognize greater powers to coastal States, especially when the shipwreck was to be found in their territorial sea. On the opposite side, the Group of 77 refused to include in the UNESCO Convention a provision expressly recognizing the immunity of State vessels or to establish a privileged regime that would ignore their rights not only over their territorial seas but also in their contiguous zones and EEZ. This question was linked, as we will see later, to the thesis defended by the Group of 77 with regard to the legal regimes applicable to the different maritime zones: let us recall that the Group of 77 supported an expansive interpretation of UNCLOS in order to provide coastal States with a wide range of powers over UCH beyond their territorial seas.43 Many possible alternative definitions of the legal regimes governing State vessels and aircraft were discussed throughout the negotiations. The challenge was to balance two legitimate rights: the rights of the coastal State over the maritime zones under its jurisdiction ands the rights of the flag State over its State vessels. Taking into account the majority rejection of inclusion of a sovereign immunity clause, the drafters had to devise a regime which left out the question of sovereign immunity of State vessels without prejudging its general validity. Proposals ranged from the initial texts of Spain and the U.K. requiring an express consent of flag States wherever the shipwreck rests, to the attempts to simply exclude any mention to State vessels in the Convention. The trend, however, ran to the detriment of the flag State’s powers and favored the position of coastal States with some qualifications of their rights depending on the situation of the shipwreck. This trend did not satisfy either the like-minded States or the Group of 77. At this stage, the Spanish position on State vessels was in an awkward condition. The United States did not really need the inclusion of State vessels in the Convention, since the concept of warships was sufficient to cover its interests, and at some point the American delegates showed sympathy for the exclusion of the concept, which in their view was preferable to a regime that was not entirely up to their expectations. Ironically, inclusion of a safeguard clause on immunity 43

For Latin American States, the issue was also that of the true origin of the allegedly Spanish shipwrecks located in their present territorial seas. In this connection, the debates were full of references to the fact that most of the galleons were under the authority of the Viceroys and not the Crowns of Castille and Aragon. Thus, some Latin American republics claimed the ownership of both the galleons and their cargoes. This topic is also related to the concept of verifiable link, which is mentioned later in connection with the jurisdiction regimes applicable to maritime zones.

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for State vessels would have amounted to a withdrawal to the initial positions of the Group of 77. Such a solution would have seriously harmed Spanish interests. Spain preferred a reasonably privileged regime without prejudice to the flag State’s rights, even without an express recognition of sovereign immunity. Therefore, the Spanish delegation opted for an intermediate position, together with Italy and Portugal, and finally succeeded in maintaining a provision on warships and State vessels with the support of the Group of 77. As a consequence, the initial positions of both groups moved towards a common understanding that resulted in a special regime for State vessels with different requirements depending on the maritime zone concerned. The outcome of these difficult negotiations is reflected, on the one hand, in the definition contained in Article 1(8), and, on the other hand, in the regime established for each maritime zone, as well as the non prejudice clauses contained in Articles 2(8) and 2(11). According to Article 1(8), State vessels and aircraft means “warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for government noncommercial purposes, that are identified as such and that meet the definition of underwater cultural heritage.” Apart from meeting the criteria put forward by Article 1(8), State vessels must also comply with the general requirements applicable to UCH regarding location and age as provided by Article 1(1)(a) of the UNESCO Convention. This means that State vessels that are not underwater or have not been there long enough are not considered as UCH and therefore do not fall within the scope of the UNESCO Convention but are rather governed by general international law, including UNCLOS. As regards the non-prejudice clauses, they are contained in Article 2, entitled “Objectives and general principles.”44 The first one states that “nothing in this Convention shall be interpreted as modifying the rules of international law and State practice pertaining to sovereign immunities, nor any State’s rights with respect to its State vessels and aircraft.” The second provides that “No act or activity undertaken on the basis of this Convention shall constitute grounds for claiming, contending or disputing any claim to national sovereignty or jurisdiction.”

E. The Relationship between the UNESCO Convention and UNCLOS At this point, it is important to establish the relationship between UNCLOS and the UNESCO Convention. UNCLOS represents the first integrated normative approach to the law of the sea, and it is also accurate to describe it as a carefully constructed balance of rights and interests. The area covered by the law of the sea is, however, a wide one, and since the adoption of UNCLOS, several in44 We previously said that Article 2 mentions the principle of the protection and preservation of underwater cultural heritage, in particular through cooperation among the States Parties. It also refers to the prohibition of the commercial exploitation of UCH, the respect for marine cemeteries, and the encouragement of public awareness, appreciation, and protection of the heritage except where such access is incompatible with its protection and management. We comment on some of these principles in the following pages.

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struments have been negotiated and adopted in order to supplement and develop its provisions. The most interesting examples of this normative development are the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 198245 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 of Straddling Fish Stocks and Highly Migratory Fish Stocks.46 In this sense, the UNESCO Convention may be seen as yet another example of this ongoing process. Inevitably, references to UNCLOS in the UNESCO Convention are present all through the text and were seriously taken into account during the negotiations. The relationship between the two legal instruments was a controversial issue during the negotiations. On the one hand, the coastal States conceived UNCLOS as only a point of departure in terms of the rights and obligations of the coastal States with regard to the protection of UCH, as evidence of “the evolution of the law of the sea.” On the other hand, the major maritime powers group strongly supported the need for a clear and unequivocal link to UNCLOS, which was perceived as a limit that these countries were not willing to trespass. For the latter, the UNESCO Convention was to be drafted “in full conformity with the relevant provisions of the UNCLOS.”47 The UNESCO Convention contains a provision which attempts to accommodate the above mentioned positions. Article 3 regulates the relationship between the UNESCO Convention and the UNCLOS: Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under international law, including the United Nations Convention on the Law of the Sea. This Convention shall be interpreted and applied in the context of and in a manner consistent with international law, including the United Nations Convention on the Law of the Sea.

The text takes account of both the position of the so-called like-minded group and the coastal states group. Indeed, the first group defended the inclusion of a non-prejudice clause and the principle of interpretation in conformity with UNCLOS; the second group maintained that the reference should not be solely to UNCLOS but also to general international law. However, this wording was not acceptable to many countries of the like-minded group, such as the U.K. and Norway, who wanted to delete the words “international law, including,” which they regarded as weakening the link to UNCLOS with far reaching implications.

45

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, Dec. 10, 1982, July 28, 1994, entered into force July 28, 1996, U.N. Doc. A/RES/48/263, reprinted in 33 I.L.M. 1309 (1994). 46 Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea, Dec. 10, 1982, relating to Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks, Dec. 4, 1995, entered into force Dec. 11, 2001, U.N. Doc. A/CONF.164/37, reprinted in 34 I.L.M. 1543 (1995). 47 G.A. Res. A/RES/55/7, ¶ 36 (May 2, 2001); G.A. Res. A/RES/54/31, ¶ 30 (Jan. 18, 2000); G.A. Res. A/RES/53/32, ¶ 20 (Jan. 6, 1999).

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These States consented to the final draft as a compromise solution in order to have an express reference to UNCLOS.

F. Prohibition of Commercial Exploitation of UCH and Exclusion of the Laws of Salvage One of the important principles of the UNESCO Convention is the prohibition of commercial activities in connection with UCH. Its Preamble expresses deep concerns raised “by the increasing commercial exploitation of underwater cultural heritage, and in particular by certain activities aimed at the sale, acquisition or barter of underwater cultural heritage.” And Article 2(7) clearly states that “Underwater cultural heritage shall not be commercially exploited.” The wording of these texts reflects the concerns of the archaeological community, which is convinced of the damage done by commercial exploitation to UCH. Yet, the interests of other communities in favor of UCH recovery and commercialization, such as treasure salvors, were not totally excluded from the provisions of the Convention. Indeed, both Rule 2 of the Annex and Article 4 of the Convention reflect a compromise between the two controversial views. Rule 2 of the Annex starts by stating that the commercial exploitation of UCH is “fundamentally incompatible with protection and proper management of UCH.” It also provides that UCH “shall not be traded, sold, bought or bartered as commercial goods.” So the concept of commercial exploitation, as O’Keefe clearly explains, is characterized by the idea of “exchange.”48 This means that activities such as organizing exhibitions, and selling photographs and films do not violate the rule.49 In spite of its chapeau, Rule 2 has been qualified as follows: This Rule cannot be interpreted as preventing: (a) the provision of professional archaeological services or necessary services incidental thereto whose nature and purpose are in full conformity with this Convention and are subject to the authorization of the competent authorities; (b) the deposition of underwater cultural heritage, recovered in the course of a research project in conformity with this Convention, provided such deposition does not prejudice the scientific or cultural interest or integrity of the recovered material or result in its irretrievable dispersal; is in accordance with the provisions of Rules 33 and 34; and is subject to the authorization of the competent authorities.

As Forrest remarks, Rule 2(a) “reflects the difficulty of divorcing the provision of commercial services during an excavation from the justification of an excavation.”50 After all, archeologists provide a professional service, and this is not prohibited by the Convention as long as the services are in conformity with its provisions and rules. Rule 2(b) is less clear, since the concept of “deposition” 48

O’Keefe, supra note 1, at 158. O’Keefe gives the example of the exhibitions by the RMS Titanic Inc. Id. 50 Forrest, supra note 1, at 540. 49

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is not defined. O’Keefe says that it “would seem to mean placing [the recovered UCH] into the care of some body whether natural or legal.”51 Salvage law52 received a similar treatment. Article 4 excludes the application of the laws of salvage and finds to UCH.53 However, salvage may be authorized by competent authorities if it is conducted in full conformity with the Convention, and “ensures that any recovery of the underwater cultural heritage achieves its maximum protection.” The provision tries to combine the interests of those States which were absolutely against the application of the law of salvage and finds to UCH with the concerns of those States which were in favor to apply them if conducted with the proper methodology.

G. Bilateral, Regional or other Multilateral Agreements Article 6 provides a legal framework for the development of the law established by the UNESCO Convention through bilateral, regional or other multilateral agreements. The agreements may go farther than the UNESCO Convention in the protection of UCH, but must be in full conformity with its provisions. A further reference to UNCLOS in this context was proposed by the like-minded States, but finally not included in the text. A controversial issue was whether these agreements were to be open to third-party States or not. Article 6 provides that the agreements may be joined by “States with a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned.” However, this Article only provides that States with a verifiable link may be invited to join, and not that there is a right to join such agreements. In any case, the UNESCO Convention does not affect agreements concluded before its adoption.

H. Jurisdiction and Regimes of Protection Applicable to Maritime Zones One of the most difficult issues throughout the negotiations was the design of a legal regime for each of the maritime zones as defined by UNCLOS. The regime had to find a proper balance between the rights of coastal States and other inter51

O’Keefe, supra note 1, at 160. The necessity to regulate this matter was somehow difficult for non common law countries. Indeed, as Tullio Scovazzi points out, “the concepts of ‘the law of salvage and other rules of admiralty,’ despite their immemorial tradition, are today typical of a few common law systems but are complete strangers to other domestic legal systems.” See Scovazzi, The Evolution of International Law of the Sea: New Issues, New Challenges, 286 RECUEIL DES COURS DE L’ACADEMIE DE DROIT INTERNATIONAL 39, 211 (2000). However, as cases such as R.M.S. Titanic demonstrate, the effect of national judicial decisions on salvage law may have important consequences on UCH. See supra note 14. 53 For criticism of this exclusion, see Bederman, supra note 39, at 344. For a justification of the preclusion of salvage in relation to UCH, see, e.g., Paul Fletcher-Tomenius, Patrick O’Keefe and Michael Williams, Salvor in Possession: Friend or Foe to Marine Archaeology?, 9 INT’L J. CULTURAL PROP. 263 (2000). 52

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ested States over UCH. The rules applicable to the EEZ and the continental shelf proved to be very hard to deal with; indeed, while the group of like-minded States maintained a strict respect for the provisions of UNCLOS, the coastal States group always thought of it as a point of departure from which to expand their rights.54 In fact, the latter argued that the starting point for an effective regime of protection of UCH was drawn by analogy UNCLOS Article 77, which recognizes coastal States sovereign rights for the exploration and exploitation of natural resources on the continental shelf. In addition, this group of States relied on the general duty to protect objects of an archaeological and historical nature provided for in UNCLOS Article 303(1).55 The drafting proposals focused their efforts in the creation of a system of international cooperation based in the widest possible sharing of information and the concession of the privileged status of coordinators to coastal States. The like-minded group tried to limit the role of the coordinating State in favor of interested States, i.e. States with a historical, cultural or archaeological link with a concrete piece of UCH. For the coastal State group, a verifiable link could not narrow the regulatory competence of the coordinating State. In the following lines we depict the jurisdictional regime of the UNESCO Convention for each maritime zone. Domestic law of coastal States governs archaeological research in internal waters, archipelagic waters and the territorial sea. The right to authorize and regulate activities directed at UCH in these zones is only limited by two restrictions. First, coastal States shall apply the rules of the Annex 56 to any activity directed at UCH in their internal waters, archipelagic waters and territorial sea. Second, coastal States have to provide information on discoveries of State vessels and aircraft to States with a verifiable link. The third paragraph of Article 7 provides that Within their archipelagic waters and territorial sea, in the exercise of their sovereignty and in recognition of general practice among States, States Parties, with a view to cooperating on the best methods of protecting State vessels and aircraft, should inform the flag State Party to this Convention and, if applicable, other States with a verifiable link, especially a cultural, historical or archaeological link, with respect to the discovery of such identifiable State vessels and aircraft.

The duty to inform is not regulated as an unambiguous legal obligation, since the text says that the sovereign State should inform the flag State, instead of shall inform. It was precisely this formula, clearly harmful for the rights of flag States over State vessels and aircraft, which inclined some States of the like-minded group to reject, or abstain from, the adoption of the UNESCO Convention. However, it was hard to get a stricter version of the obligation to inform 54 See supra notes 44-48, and accompanying text (discussing the relationship between UNCLOS and the UNESCO Convention). 55 Already in 1995, Professor Strati wrote that “overall, it will be more difficult for third States to oppose the expansion of coastal jurisdiction over archaeological objects in the EEZ.” See Strati, supra note 1, at 269. 56 See infra notes 64, and accompanying text.

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in this case, not only because the like-minded group was a minority, but also because the zones are under the sovereignty of coastal States, and the rights of flag States over shipwrecks of more than 100 years is not clearly established in international law.57 As regards jurisdiction in the Contiguous Zone, one should recall that Article 303(2) establishes a legal presumption: it states that the removal of UCH from the sea-bed in the contiguous zone is to be considered an infringement of customs, fiscal, immigration or sanitary laws regulations. In accordance with this presumption, says article 8 of the UNESCO Convention, “States Parties may regulate and authorize activities directed at underwater cultural heritage within their contiguous zone.” The Rules of the Annex shall be applied to the activities mentioned. The applicable regime to the EEZ and the continental shelf is regulated in articles 9 and 10 of the UNESCO Convention. The former establishes a complex mechanism of information and notification based on the general obligation to protect UCH found in these zones. It prescribes that States shall require their nationals (including ships flying their flags) to report to them any discovery or activity directed at UCH. If the discovery or activity occurs in the continental shelf or EEZ of other States, they shall report to those States or to their own State, which “shall ensure the rapid and effective transmission of such reports to all other States Parties.”58 The same obligation to notify is also provided for in reference to the Director General of the UNESCO, who shall make available the information to all the States Parties of the Convention. The last paragraph of article 9 completes the regime with a provision by which any State Party may declare its interest in being consulted on the best way to protect UCH located in the EEZ or continental shelf of other States Parties. That interest shall be based on a verifiable link to the UCH involved. Article 10 is the key to the regime of jurisdiction in the EEZ and the continental shelf. It grants coastal States the right to prohibit or authorize any activity directed at UCH located in the above mentioned zones to prevent interference with its sovereign rights or jurisdiction as provided for by international law, including the United Nations Convention on the Law of the Sea. Coastal States are under an obligation to consult on the best way to protect UCH with all the States Parties which have declared an interest in accordance with Article 9(5) of the UNESCO Convention. The coastal State shall coordinate the consultations, unless it expressly declines to be the coordinating State; in the latter case, the States which have declared an interest in the UCH concerned shall appoint a 57 Cf. Sea Hunt Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 22 F.Supp.2d 521 (1998) (discussing ownership of the Juno and La Galga, two Spanish galleons sunk in 1802 and 1750, respectively). See Mariano Aznar Gómez, La reclamación española sobre los galeones hundidos frente a las costas de los Estados Unidos de América: El caso de la Galga y la Juno, 52 REVISTA ESPAÑOLA DE DERECHO INTERNACIONAL 247 (2000); Luisa Vierucci, Le statut juridique de navires de guerre ayant coulé dans des aux étrangères: les cas des fregates espagnoles Juno et La Galga retrouvées au large des côtes des États-Unis, REVUE GÉNÉRAL DE DROIT INTERNATIONAL PUBLIC 706 (2001). 58 States shall declare the manner in which these reports will be transmitted on depositing its instrument of ratification, acceptance, approval or accession.

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coordinating State. Whether coastal or not, the coordinating State has the power to “take all practicable measures, and issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting.” Besides, the coordinating State is also responsible for the implementation of the measures of protection agreed with the rest of States Parties. It also has the administrative power to issue any necessary authorization and undertake any necessary preliminary research in order to protect UCH. All these acts must be performed “on behalf of the States Parties as a whole and not in its own interest.” The regime has special consideration for State vessels and aircraft. Indeed, article 10(7) provides that Subject to the provisions of paragraphs 2 and 4 of this Article, no activity directed at State vessels and aircraft shall be conducted without the agreement of the flag State and the collaboration of the Coordinating State.

In the EEZ and the continental shelf, therefore, the jurisdictional regime recognizes greater rights of flag States, since their agreement is necessary to conduct any activities directed at State vessels. However, the paragraph also contains a safeguard, which may limit substantially the rights of flag States. Indeed, as already said, paragraphs 2 and 4 of article 10 grant coastal States the rights to take measures to protect UCH, and issue any necessary authorizations, in consultation with interested States, and also adopt urgent actions before those consultations. So the respect for the rights of flag States will depend largely on the cooperation of the coastal State, or the coordinating State, if other than the coastal State. The jurisdictional regime applicable to activities directed at UCH in the Area59 is regulated in articles 11 and 12. Article 11 designs a system of reporting and notification. It recalls the general responsibility of States Parties to protect UCH in the Area in conformity with the UNESCO Convention and Article 149 UNCLOS.60 From this responsibility stems an obligation for the nationals and vessels flying the flag of States Parties to report to them discoveries and activities directed at UCH in the Area. The information shall be transmitted to the Director-General of the UNESCO and the Secretary-General of the International Sea Bed Authority (ISBA), and then transmitted by the former to all the States Parties of the UNESCO Convention. Within the zone, States Parties may also declare an interest in the UCH concerned if they can prove a verifiable link to it. The declaration is to be transmitted to the Director-General of the UNESCO. In accordance with UNCLOS Article 149, Article 11(3) expressly refers to a duty to pay due regard to “the preferential rights of States of cultural, historical or archaeological origin.”

59

UNCLOS art. 1(1) defines the Area as “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” UNESCO Convention art. 1(5) reproduces that definition. 60 See supra note 11.

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The regime of protection of UCH in the Area is based in a series of consultations among the States Parties which have declared an interest in the UCH concerned. The Director-General of the UNESCO must invite States Parties to these consultations and must also invite the States Parties to elect a coordinating State. The ISBA is called to participate in the consultations as well. The regime permits any State Party to adopt the necessary measures to avoid any immediate danger to UCH located in the Area, even before the completion of consultations. The coordinating State shall implement any measures of protection as agreed in the consultations, as well as issue any necessary authorization or conduct any needed preliminary research. The performance of these activities shall be on behalf of all States Parties and “for the benefit of humanity as a whole.” As regards the regime for State vessels, paragraph 7 of Article 12 clearly states, without any qualification, that consent of the flag State is required to undertake or authorize activities directed at these vessels and aircraft in the Area. The reporting scheme described above does not apply to “warships and other government ships or military aircraft with sovereign immunity, operated for non-commercial purposes, undertaking their normal mode of operations, and not engaged in activities directed at underwater cultural heritage.”61 However, States Parties should make every effort to comply with Articles 9 to 12 whenever possible.

I. Domestic Implementation Articles 14 to 17 of the UNESCO Convention establish a series of obligations for States Parties in relation to the measures on the protection of UCH to be prescribed by domestic legislation. States Parties are under the obligation to take adequate measures to fight the illicit exportation or recovery of UCH in their territories. States Parties shall take measures to prohibit the use of their territory in support of activities directed at UCH which are not in conformity with the UNESCO Convention, and take all practicable measures to avoid the engagement of their nationals and vessels in these activities. These measures of implementation shall be accompanied by appropriate sanctions for their violation. The nature of the sanctions (criminal, administrative or civil) is left to each State Party to decide. These obligations shall be complemented with the duty to take domestic measures providing for the seizure of UCH recovered in violation of the UNESCO Convention. The Director-General and any other State with a verifiable link to the UCH concerned shall be notified of seizures. Also, States Parties shall make every effort to stabilize the UCH captured, and ensure that its disposition is for the public benefit.

61

UNESCO Convention art. 13.

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J. Public Awareness and Training in Underwater Archaeology A fundamental tool employed to ensure an effective regime of protection of UCH is education. Indeed, the UNESCO Convention requires that each State Party undertake all practical measures “raise public awareness” in relation to the meaning and importance of UCH and its protection. It also provides for the cooperation on training in underwater archaeology and the conservation of UCH. Article 21 also speaks of cooperation in the transfer of technology in relation to UCH, but adds a cryptic condition for this particular case: it shall be done “on agreed terms.”

K. International Cooperation States Parties have the obligation to cooperate in the protection of UCH. This general obligation is one of the basic tenets of the UNESCO Convention, but it was previously stated in Article 303 of UNCLOS. The UNESCO Convention makes several references to the principle of international cooperation. Indeed, it is mentioned in its Preamble,62 and it appears among the principles stated in Article 2. In addition, the UNESCO Convention dedicates a whole article to the duty to cooperate in the protection and management of UCH, including “the investigation, excavation, documentation, conservation, study and presentation of such heritage.” Sharing information is also mentioned as one of the areas where States Parties are called to cooperate, however, this shall be done “to the extent compatible with their national legislation, be kept confidential and reserved to competent authorities of States Parties as long as the disclosure of such information might endanger or otherwise put at risk the preservation of such underwater cultural heritage.” Lastly, States Parties have the duty to take all practicable measures to publicize the information on UCH, whether excavated and recovered in accordance with or contrary to the UNESCO Convention.

L. Institutional Arrangements The UNESCO Convention establishes an institutional structure for implementation of its provisions. On the one hand, States Parties are under the obligation to appoint national authorities to deal with UCH matters or reinforce those already in charge of them. The relevant data relating to national competent authorities shall be communicated to the Director-General of the UNESCO. As regards the functions of these authorities, Article 22 mentions “the establishment, maintenance and conservation, presentation and management of underwater cultural heritage, as well as research and education.”

62 “Believing that cooperation among States, international organizations, scientific institutions, professional organizations, archaeologists, divers, other interested parties and the public at large is essential for the protection of underwater cultural heritage.”

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On the other hand, the UNESCO Convention provides for a Meeting of the Parties, which shall be convened by the Director-General within one year of the entry into force of the Convention and then at least once every two years. The Meeting of States Parties has the power to adopt its rules of procedure, and decide on its functions and responsibilities. It may also establish a Scientific and Technical Advisory Body to “appropriately assist the Meeting of the States Parties in questions of a scientific or technical nature regarding the implementation of the Rules.” Finally, the UNESCO Convention determines that the Director-General is to be responsible for the functions of the Secretariat of the Convention.

M. Settlement of Disputes The UNESCO Convention has a detailed provision on settlement of disputes. Article 25 permits any kind of peaceful means of dispute settlement to solve differences concerning the interpretation or application of the Convention, such as negotiation in good faith, mediation by UNESCO, and so on. However, the most important aspect of the norm is that it reproduces the dispute settlement system of UNCLOS. Indeed, paragraph 3 of the above mentioned Article says that If mediation is not undertaken or if there is no settlement by mediation, the provisions relating to the settlement of disputes set out in Part XV of the United Nations Convention on the Law of the Sea apply mutatis mutandis to any dispute between States Parties to this Convention concerning the interpretation or application of this Convention, whether or not they are also Parties to the United Nations Convention on the Law of the Sea.

The declarations of States Parties to UNCLOS under UNCLOS Article 287 are applicable to the settlement of disputes under the UNESCO Convention unless otherwise declared. States which are not Parties to UNCLOS may also choose a procedure under Article 287 by a written declaration for the purposes of settlement of disputes arising from the application or interpretation of the UNESCO Convention.

N. The Rules of the Annex The Rules of the Annex form an integral part of the UNESCO Convention. Therefore, it is appropriate to describe them briefly.63 The Rules, which stem from the ICOMOS Charter,64 are intended to regulate the activities directed at UCH from the perspective of submarine archaeology. The first Part of the Rules establishes the general principles for activities directed at UCH. These principles include: the preference for in situ preservation 63 64

See O’Keefe, supra note 1, at 155-90. See supra note 28.

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of UCH, the prohibition of commercial exploitation of UCH, the use of nondestructive techniques and methods to perform the activities, the avoidance of unnecessary disturbance of human remains or venerated sites, the proper recording of relevant information, the promotion of public access to UCH, and international cooperation. The following Parts of the Annex regulate various aspects of the implementation of activities directed at UCH. Any such activity requires presentation of a project proposal consistent with the requirements of the Rules. Such a proposal must contain an assessment of its impact on UCH and the surrounding natural environment, the assurance of adequate funding, and an appropriate schedule of activities. The project is to be directed and controlled by a qualified underwater archaeologist with appropriate scientific competence. In addition, UCH conservation, management, and documentation programs are needed, as well as the preparation of safety and environmental policies. The Rules of the Annex also include requirements for interim and final reports, as well as for the proper archiving and dissemination of the documents concerning the activities directed at UCH and their results.

III. Conclusion Some provisions of the UNESCO Convention can certainly be improved.65 Overall, however, the Convention reflects a compromise which should be evaluated in the context of the difficulties present during its negotiation. Indeed, the interests and values at stake were truly in conflict and the majorities were imbalanced. Thus, the mere fact of having adopted a potentially universal Convention for the protection of UCH is a respectable achievement. Nevertheless, universal participation is yet to be seen. Although the UNESCO Convention only needs twenty instruments of ratification, acceptance, approval or accession to enter into force, it is too early to anticipate the number of States which will express their consent to be bound by the Convention. Moreover, even with a substantial participation, the effectiveness of the UNESCO Convention will also depend on many other important factors. Leaving aside other matters, one should underscore the need for a clear determination to implement the principle of international cooperation among the future States Parties in the realization of the object and purpose of the UNESCO Convention: the protection of UCH for the benefit of humanity.

65

See, e.g., the objections of the U.S. Delegation, reproduced in Sean D. Murphy (ed.), Contemporary Practice of the United States, 96 AM. J. INT’L L. 468 (2002).

CHAPTER 10

Historic Time Capsules or Environmental Time Bombs? Legal & Policy Issues Regarding the Risk of Major Oil Spills from Historic Shipwrecks John G. White

I. Introduction Shipwrecks capture our collective imagination—they symbolize poignant moments in our history, the awesome power of nature, or the horrible forces of war. Their discovery can offer glimpses at “time capsules” that can help further our understanding of culture and history.1 For centuries, most ships that met an early demise at sea were left alone in their watery graves, considered lost in the deep forever. Rapid advances in underwater technology have changed that reality. Today, over ninety-six percent of the ocean floor is now accessible to those with the right equipment, support and finances.2 As a result, commercial salvors are discovering and salvaging long1

In fact, there may be more “history” underwater waiting to be discovered than what exists in all of the museums in the world today. Robert D. Peltz, Salvaging Historic Wrecks, 25 MAR. L. 1, 113 (2000). 2 Modern day underwater explorers have access to state-of-the-art robotics, unmanned underwater submersibles, fiber optics, satellite imagery, and advanced video 225 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 225-56. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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lost wrecks at a record pace.3 Under traditional salvage law, these salvors stand to gain ownership or financial stakes in valuable wrecks.4 In response to this trend, many archaeologists, museums, and governments have led a movement to protect the “underwater cultural heritage” (“UCH”) from what they perceive as wholesale looting and desecration by salvors. 5 The UCH movement represents a major shift from traditional maritime law principles—the reliance on salvage law and economic incentives is being challenged, and in some cases replaced, by a new cultural and historic preservation mandate.6 Underlying the drive to find old shipwrecks is an assumption that wrecks are in fact desirable to discover, salvage, and study because they are “time capsules” from a long-lost era, contain hidden treasures, or provide unparalleled recreational opportunities. An emerging development, however, challenges this technology. Lyndel V. Prott, Legal Principles for Protecting the Underwater Cultural Heritage, UNESCO, at http://www.unesco.org/csi/pub/source/alex7.htm (last visited Mar. 8, 2002); Lee Nessel, Salvage Operators Fight Government Control of Sites, Dive Report at http://www.imacdigest.com/skindive.html (Jan./Feb. 2000); Edward O’Hara, Maritime and Fluvial Cultural Heritage, Report to the Committee on Culture and Education (Doc. 8867), Council of Europe, available at http://stars.coe.fr/doc00/ EDOC8867.htm (Oct. 12, 2000); National Park Service, Submerged Cultural Resources Unit, at http://www.nps.gov/scru.home.html (last modified Apr. 7, 1999) [hereinafter SCRU]; J. Ashley Roach, Sunken Warships and Military Aircraft, Naval Historical Center, available at http://www.history.navy.mil/branches/org12-7j.htm (May 25, 2001); John Paul Jones, The United States Supreme Court and Treasure Salvage: Issues Remaining After Brother Jonathan, 30 J. MAR. L. & COM. 205, 213 (1999). 3 Pay Clyne, Protection of Underwater Cultural Heritage—Role of the Commercial Salvor, at http://www.imacdigest.com/protect.html (last visited Mar. 13, 2002); Shipwrecks: Myths and Reality, at http://www.imacdigest.com/shipwrecks.html (last visited Mar. 13, 2002) [hereinafter Myths]. 4 See, e.g., Nessel, supra note 2; Peter Hess, The International Convention on the Underwater Cultural Heritage—A Critique, at http://www.imacdigest.com/unesco.html (May 14, 1998); David J. Bederman, Historic Salvage and the Law of the Sea, 30 U. MIAMI INTER-AM. L. REV. 99, 102 (1998). 5 Underwater Cultural Heritage refers to “all traces of human existence” that have cultural, historic, or archaeological character which have been totally underwater for a certain period (typically fifty or one-hundred years). See e.g., Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, art. 1, available at http://www.unesco.org/culture/legalprotection/water/html_eng/convention.shtml [hereinafter UCH Convention]; Terence P. McQuown, An Archaeological Argument for the Inapplicability of Admiralty Law in the Disposition of Historic Shipwrecks, 26 WM. MITCHELL L. REV. 289, 301 (2000); Chris Fordney, Shipwrecks: Salvage or Sanctity?, National Parks Conservation Association, available at http://www.npca.org/magazine/ 2001_issues/march_april/shipwrecks.asp (Mar./Apr. 2001); Ole Varmer, The Case Against the “Salvage” of the Cultural Heritage, 30 MAR. L. & COM. 279, 301 (1999). 6 See, e.g., The Institute of Marine Archaeological Conservation Special Report— Peter Hess’ Report to the Maritime Law Association on UNESCO’s International Convention on Underwater Cultural Heritage, at http://www.imacdigest.com/intervue.html (Apr. 19-24, 1999)[hereinafter Hess Report]; Varmer, supra note 5; Edward Brown, Legal Loopholes, UNESCO Sources, No. 87, Feb. 1997; LEGAL PROTECTION OF THE UNDERWATER CULTURAL HERITAGE, NATIONAL AND INTERNATIONAL PERSPECTIVES (Sarah Droomgale ed., 1999).

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assumption. The passage of time and the forces of nature have conspired to turn many “time capsules” into potential environmental time bombs. For example, some ships that sank during the period from World War II through the 1950s went down with large amounts of petroleum products on board, either as fuel or cargo. During that era, pollution regulations did not require the removal of the petroleum products from the wrecks, and the technology needed to find and recover the wrecks simply did not exist. Today, thanks to decades of deterioration, some of these wrecks now threaten the coastal environment.7 The best measure of this threat is an actual, significant oil spill from an old shipwreck. In early 2002, after a decade of searching, the U.S. Coast Guard (“Coast Guard”), with support from other federal and state agencies, identified the wreck of the S.S. Jacob Luckenbach8 as the source of the “San Mateo Mystery Spill.”9 This spill has killed thousands of seabirds off the California coast, and has cost taxpayers well over 20 million dollars in natural resource damages, high-tech search equipment, and oil removal operations.10 The Jacob Luckenbach incident is a wake-up call for government agencies, resource managers, and the maritime industry. While agencies charged with protecting the marine environment have dealt with pollution from older abandoned and derelict vessels for years, these efforts have focused on small recreational vessels and barges abandoned in inland waterways.11 Shipwrecks on the ocean 7

For example, off the coast of Norway there are over thirty-five “environmentally dangerous” old shipwrecks. In a policy statement on sunken U.S. warships, then President Clinton warned that many Navy wrecks contain fuel oil and other hazardous liquids that could pose “serious threats” to the marine environment. War Wrecks Pose Threat of Pollution, LLOYD’S LIST, Nov. 4, 1994, at 7; Bente Myhre Haast, Norway’s Oil Spill Preparedness: No Ship in the Night, Ministry of Foreign Affairs, at http://odin.dep.no/odin/ engelsk/…t/032005-990442/index-dok000-b-f-a.html (Dec. 1996); President’s Statement on United States Policy for the Protection of Sunken Warships, 37 WEEKLY COMP. PRES. DOC. 195 (Jan. 22, 2001) [hereinafter Clinton Statement]. 8 Part II discusses the Jacob Luckenbach in more detail. 9 Unified Command News Release, San Mateo Mystery Oil Spill, at http://www.dfg. ca.gov/ospr/sanmateobird_incident8.htm (Jan. 18, 2002); Unified Command News Release, San Mateo Mystery Oil Spill—Oiled Seabirds Mystery Solved, at http://spills.incidentnews.gov/incidentnews/FMPr?-db=reports&-sortfield=EntryDate&-sortorder=.html (Feb. 8, 2002) [hereinafter News Release]. 10 Jane Kay, Source of Oil May Be Shipwreck, S.F. CHRON., Feb. 5, 2002, at A15; John M. Glionna, Clues to Decade-Old Oil-Spill Puzzle May Lie on Ocean Floor off San Francisco, SEATTLE TIMES, Feb. 1, 2002, available at http://seattletimes.newsource…/ nationworld/134398468_oiltanker31.html. Agencies estimate that over 1900 sea birds were injured (with an 86 percent mortality rate) during the most recent round of spills from the Luckenbach. These agencies are testing samples from bird feathers collected as early as 1978 to determine the extent of the potential damage caused by the Luckenbach. Greg Elliot, Rocks & Wrecks, The S.S. Jacob Luckenbach—A Ghost Story, CALIFORNIA COAST & OCEAN, Vol. 18, No. 2, Summer 2002, available at http://www.coastalconservancy.ca.gov/ coast&ocean/summer2002/pages/five.htm. 11 The Coast Guard and state officials have removed hundreds of small abandoned vessels from the San Francisco Bay Area. See Press Release, Rep. Stark Introduces Bill to Cleanup Waterways, available at http://www.house.gov/stark/documents/emptyboatspress.html (Sept. 25, 1997); Report on Abandoned Vessels Program, Office of Inspector General, Audit Report Number MA-1999-092, Apr. 28, 1999 [hereinafter OIG Report].

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floor, some containing staggering amounts of oil, have been largely overlooked as sources of pollution. This Chapter addresses the legal and policy issues involved in managing the pollution threat from potentially historic shipwrecks.12 It tests the premise that there is an inherent tension between environmental response operations (designed to remove oil from a wreck) and historic preservation goals (designed to preserve a wreck in-situ) by addressing the following issues. (1) Liability for Pollution Response Costs & Damages N What environmental protection laws and standards apply to old shipwrecks? N Who “owns” these wrecks, and who is responsible for pollution response costs and environmental damage? (2) Historic Preservation N What makes a wreck historic? N Does the historic preservation mandate interfere with the environmental protection mandate? Can the two goals be reconciled? N Do existing policies and procedures governing the protection of historic properties during oil spill response operations adequately protect historic shipwrecks? (3) Addressing the Problem—Legislation or Policies N Who should manage historic wrecks that may spill oil? What are the key management goals? N Should government agencies embark on an aggressive campaign to identify risky wrecks and remove the oil? N If so, who should (and can) pay? N Is the existing legal and policy infrastructure adequate? Part II of this Chapter tells the story of three shipwrecks—each wreck has at least some claim to historic significance, and each is a potential environmental time bomb. Part III discusses applicable laws, regulations, treaties, and policies, while Part IV applies these authorities to the three “case study” wrecks described in Part II. Finally, Part V offers some general recommendations.

II. The Tale of Three Ships This Part tells the story of three ships—a warship, an oil tanker, and a freighter. These ships had little in common when they sailed the high seas; however, today, their wrecks each have at least some claim to historical significance, and they are all environmental time bombs. 12

This paper focuses on environmental response and UCH issues. The original version of this paper also addressed wreck removal laws and policies (including developments relating to the International Maritime Organization’s draft wreck removal convention).

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A. The U.S.S. Arizona The U.S.S. Arizona needs little introduction.13 She is one of the most famous and symbolic ships in the history of the United States. The wreck of the Arizona is a national shrine, imbued with “an almost religious significance.”14 In recognition of the wreck’s special status, the government established the U.S.S. Arizona Memorial in the mid-1960s, and designated it a National Historic Monument in 1989.15 In the mid-1980s, site managers became concerned about the wreck’s future and confronted a number of tough issues regarding preservation, artifact recovery, and oil pollution.16 Small amounts of oil have routinely leaked from the wreck for years.17 Confronted with the continuing deterioration of the wreck, however, the risk of a catastrophic discharge became a real, although not imminent, concern.18

B. The S/S Montebello On the morning of December 23, 1941, the 440-foot tank ship Montebello,19 loaded with over three million gallons of Santa Maria crude, departed from the port of San Luis, California enroute Vancouver, British Columbia.20 Just six

13

At 8:10 a.m. on December 7, 1941, the Arizona was hit by an 800 kilogram bomb dropped by a Japanese bomber during the attack on Pearl Harbor. The battleship sank shortly thereafter, taking with her over eleven hundred sailors and marines. Submerged Cultural Resources Study: USS Arizona and Pearl Harbor National Historic Landmark, National Park Service (Daniel J. Lenihan, ed.), available at http://www.nps.gov/ usar/scrs/scrs.htm (last update Apr. 27, 2001) [hereinafter The Arizona Study]; U.S.S. Arizona, A Brief History, The University of Arizona Library, at http://www.library. arizona.edu/images/USS_Arizona/history/history.html (last visited Mar. 31, 2002). 14 Id. 15 Id. The National Park Service has managed the wreck site since 1980. 16 Id. The U.S.S. Arizona was refueled shortly before the attack, and probably had about 500,000 gallons of fuel oil on board when it sank. Matthew A. Russell, USS Arizona—Preserving an American Icon, ARCHAEOLOGY TODAY, available at http://www. archaeologytoday.net/web%20articles/050801-pearlharborweb.htm (May 8, 2001). 17 Id. 18 Id. These concerns prompted the NPS’s Submerged Cultural Resources Unit to initiate a long-term study of the wreck. Part of the study addressed how much oil was on board and whether the oil could be removed using non-invasive and non-destructive techniques. To date, studies have concluded that although the hull is not in imminent danger of breaking up, the potential for a large spill at some point in the future does exist. Russell, supra note 16. 19 The Montebello was owned by Union Oil—known as Unocal 76 today. UNOCAL, A History of Unocal—More than a Century of Spirit, at http://www.unocal. com/aboutucl/history/ (last visited Mar. 26, 2002); John Robinson, Press Release, Oil Filled Tanker Found on Sea Floor Near Sanctuary, at http://www.mbnms.nos.noaa. gov/Intro/ press_releases/961129.txt (Nov. 29, 1996). 20 Robinson, supra note 19.

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miles off the coast near Cambria, California, the Montebello was sunk by the Imperial Japanese submarine I-21.21 The attack on the Montebello made front-page news the following morning, but the fate of the tanker quickly slipped into obscurity.22 Decades later, in 1996, the Central Coast Maritime Museum Association conducted an expedition to locate and study the wreck.23 Divers found the tanker in 900 feet of water, approximately six miles offshore and a mile south of the Monterey Bay National Marine Sanctuary.24 Thanks to the very cold water at 900 feet, the wreck is in relatively good condition, showing little sign of hull deterioration.25 Shortly after the discovery of the wreck, experts agreed that while it did not pose an imminent environmental threat, the risk of a catastrophic spill in the future is real.26

C. The S/S Jacob Luckenbach On the evening of July 14, 1953, the S/S Jacob Luckenbach, a 468-foot U.S.flag freight ship owned by Luckenbach Lines, departed San Francisco enroute Yokohama, Japan with a cargo of miscellaneous freight.27 As the Luckenbach 21 Fortunately, all thirty-eight members of the crew survived the attack. Id.; Don Knapp, Divers Locate WWII Tanker Sunk by Japanese, CNN.com, at http://www.cnn.com.earth.9611/29/sunken.tanker.htm (Nov. 29, 1996); Patrick H. Donovan, Oil Logistics in the Pacific War: In and After Pearl Harbor (2001) (unpublished Research Report, Air Command and Staff College), available at http://research.au. af.mil/papers/student/ay2001/acsc/01-206.pdf (describing why the Japanese West Coast offensive was short-lived and not terribly successful); Donald Young, West Coast War Zone, at http://columbiad.com/worldwarii/articles/1998/0798_text.html (Jul. 1998) (recounting the story of the Japanese submarine attacks off the West Coast from Dec. 18-24, 1941). 22 Christopher Weir, Crude Awakening, OUTSIDE MAGAZINE ONLINE, at http:// www.outsidemag.com/magazine/0997/9709dispdeep.html (Sept. 1997); Jim Lamb, Oil Leak Fears Over Tanker Sunk in 1941: Torpedoed ‘Montebello’ Found Off California, LLOYD’S LIST, Dec. 2, 1996, at 2; Robinson, supra note 19. 23 See e.g., Robinson, supra note 19. The National Oceanic and Atmospheric Administration (“NOAA”) provided much of the funding for the expedition; the West Coast & Polar Regions Undersea Research Center (“WCPRU”) also contributed. 24 Id.; Weir, supra note 22; U.S. Wreck Poses Threat to Marine Sanctuary, LLOYD’S LIST, Dec. 2, 1996, at 2. 25 Descriptions of the wreck paint an eerie picture; its sits on the bottom as if she was at dock, with eight of her ten oil storage tanks in “good” condition and full of oil. Id.; Knapp, supra note 21. 26 Jack Hunter, Report of Cruise to Conduct a Manned Submersible Reconnaissance of the Torpedoed Oil Tanker SS Montebello, available at http://www.wcnurc.uag .edu:8000/96hunt.htm (last visited Feb. 8, 2002). 27 Channel Islands National Marine Sanctuary Shipwreck Database, Jacob Luckenbach, at http://www.cinms.nos.noaa.gov/bridge/dbase/gfnms/jacobluckenbach.html (last visited Mar. 9, 2002)[hereinafter Shipwreck Database]. The Jacob Luckenbach was owned by Luckenbach Lines, a company that went out of business in the early 1970s. Jacob Luckenbach History, CINMS Shipwreck Database, at http://www.cinms.nos. noaa.gov/shipwreck/dbase/gfmsn/jluckenbach1.html (last visited Apr. 17, 2002) [herein-

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settled into a westerly course, she collided with the S/S Hawaiian Pilot approximately seventeen miles southwest of the Golden Gate Bridge (an area that is today part of the Gulf of the Farallones National Marine Sanctuary) and sank in less than thirty minutes.28 After the collision, the Jacob Luckenbach slipped into oblivion until its “discovery” late in 2001.29 In 1992, and again in 1997, 1999 and 2001, a series of “mystery” oil spills hit a 220-mile stretch of the California coast from Monterey north to Point Reyes, killing thousands of seabirds.30 Initially, pollution response agencies suspected that either natural seepage or illegal discharges from passing ships caused the spills.31 It was only after a costly, decade-long search that the Coast Guard and other agencies eventually pinpointed the Luckenbach as the source.32 The Coast Guard recently completed an operation to remove most of the oil from the Luckenbach. The operation was complex, hazardous, and expensive, but appears to have succeeded in removing the oil without inflicting serious

after History]; Tia O’Brien, Freighter Fuel Killed Thousands of Seabirds, S. J. MERCURY NEWS, Mar. 16, 2002, at 1 (noting that the ship had a fuel oil capacity of 599,000 gallons). 28 S/S Jacob Luckenbach Home Page, at http://www.incidentnews.gov/incidents /incident_9.htm (last visited Apr. 19, 2002) [hereinafter Home Page]; People and Places, LLOYD’S LIST, Feb. 27, 2002, at 7. The Hawaiian Pilot was owned and operated by Matson, one of today’s leading U.S. domestic ocean carriers. Matson, Corporate Background, at http://www.matson.com/about.html (Apr. 4, 2002). At the time of the collision, both ships were insured by the American Hull Insurance Syndicate. History, supra note 27. All thirty-six crew members survived the incident. The Coast Guard casualty investigation concluded that the masters of both vessels were at fault. U.S. Coast Guard, Marine Board of Investigation; collision between freight vessels S.S. Hawaiian Pilot and S.S. Jacob Luckenbach, 7 miles WSW of San Francisco Light Vessel, 14 July 1953, Jan. 22, 1954, available at http://www.uscg.mil.hq/g-m/moa/boards/hawaiianpilot.pdf [hereinafter Marine Board]. 29 Jane Kay, Old Shipwreck Called Culprit in Oil Spills—Freighter that Sank 49 Years Ago Must be Sealed or Brought Up, SFGate.com, at http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/2002/02/09/ MN73797.DTL (Feb. 9, 2002); Home Page, supra note 28. In fact, the wreck was not listed in the shipwreck database maintained by the National Marine Sanctuary Program. News Release, supra note 9. 30 Id.; News Release, supra note 9. Bird recovery and rescue costs soared into the millions of dollars. The Governor of California said the spills “depleted California's offshore bird populations.” Kay, supra note 29. The true extent of the environmental damage may not be known for years. See Elliott, supra note 10. 31 Glionna, supra note 10; Oiled Birds & Tarballs at Pt. Reyes, at http://www. uscg.mil/d11/msosf/dprtmnets/mer/ptreyes.htm (last visited Mar. 8, 2002)(documenting the Coast Guard’s aggressive on-scene sampling of vessel cargo and bunker fuel by Coast Guard units from Alaska to Hawaii). 32 Glionna, supra note 10; News Release, supra note 9; History, supra note 27. The breakthrough came last December, when researchers stumbled across the records of the Jacob Luckenbach casualty, and the Coast Guard received a tip from recreational divers who spotted an oil slick in the vicinity of the wreck. Oil “fingerprinting” eventually confirmed a match between the oil in the wreck and the series of mystery spills.

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damage to the wreck site.33 The Luckenbach incident is an excellent case study to explore issues surrounding liability, historic preservation, and environmental response.

III. The Legal Framework—Oil Pollution Response & Liability and the Underwater Cultural Heritage Within the United States, no single body of law or policy governs historic shipwrecks that threaten the marine environment. Instead, a maze of laws, treaties, regulations, and administrative agency policies conspire to create a complex legal landscape. This Part provides a brief survey of the relevant authorities relating to environmental issues and the Underwater Cultural Heritage (“UCH”).34

A. Oil Pollution Response & Liability in the United States The principal authority for pollution response and polluter liability for cleanup costs and natural resources damages resulting from oil spills is section 311 of the Federal Water Pollution Control Act (“FWPCA”),35 as amended by the Oil Pollution Act of 1990 (“OPA 90”).36 In short, the FWPCA and OPA 90 direct the Coast Guard, as the Federal On-Scene Coordinator (“OSC”), to prepare for and manage the response to discharges of oil in coastal waters.37 1. The Coast Guard’s Role Under the Oil Pollution Act of 1990. OPA 90 prohibits the discharge38 of oil “into or upon the navigable waters39 of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone…or which may affect natural resources belonging to, appertaining 33

Kay, supra note 29; Coast Guard Press Release, Progress on S.S. Jacob Luckenbach Oil Recovery Project, Aug. 1, 2002, available at http://spills.incidentnews.gov. 34 The primary focus is on U.S. federal law; although international law and California law are touched upon where applicable. 35 Otherwise known as the Clean Water Act. 36 33 U.S.C. § 1321, et seq. (FWPCA); 33 U.S.C. § 2701, et seq. (OPA 90). 37 The responsibilities of the OSC are set forth in 33 U.S.C. § 1321(d) and (j) and in the National Oil and Hazardous Substances Contingency Plan, 40 C.F.R. § 300 (2002) [hereinafter NCP]. 38 Per 33 U.S.C. § 1321(a)(2), discharge includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping of oil. 39 Navigable waters includes the territorial sea. 40 C.F.R. § 300.5 (2002). Although the U.S. “extended” its territorial sea to twelve miles in 1988, the Proclamation did not amend existing federal laws. The territorial sea for the purposes of OPA 90 is three miles. The same holds true for the contiguous zone, which remains at twelve miles under OPA 90. 33 U.S.C. § 2701(35); Extension of the U.S. Contiguous Zone, at http://www. hklaw.com/maritimedev.asp?Subject=continuing (last visited Mar. 19, 2002); Dennis L. Bryant, The U.S. Territorial Sea and Other Limits in the Water, at http://www.hklaw. com/OtherPublication.asp?Article=81 (Nov. 14, 1997); Presidential Proclamation 7219, Contiguous Zone of the United States, 64 Fed. Reg. 48702 (Sept. 8, 1999).

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to, or under the exclusive management authority of the United States.”40 To carry out this broad prohibition, OPA 90 directs the Coast Guard to ensure the effective and immediate removal41 of a discharge of oil and the mitigation or prevention of a substantial threat of a discharge into or on the navigable waters, the contiguous zone, and the Exclusive Economic Zone (“EEZ”).42 This authority includes the power to remove or arrange for the removal of oil or the substantial threat of a discharge; direct or monitor all federal, state, and private actions to remove a discharge; and remove or destroy a vessel discharging or threatening to discharge.43 The authority is discretionary in most cases; however, OPA 90 requires the OSC to respond to a discharge that poses a substantial threat to the public health or welfare.44 These authorities, combined with a comprehensive planning and preparedness regime, provide the OSC with expansive powers to prepare for and respond to the threat of oil pollution in the marine environment.45 2. Scope of Liability The hallmark of the OPA 90 regime is that the polluter or “responsible party”46 is strictly liable for removal costs and damages that result from an actual or threatened discharge of oil.47 Despite this strict liability approach, OPA 90 does provide a few defenses to liability. For example, a vessel owner will not be held

40

33 U.S.C. § 1321(b)(3). Removal refers to containment and removal of oil from the water and shorelines or other actions that may be necessary to prevent, minimize, or mitigate damage to the public health or welfare, including fish, shellfish, wildlife, public and private property, shorelines and beaches. 33 U.S.C. § 1321(a)(8). 42 33 U.S.C. § 1321(c)(1)(A); U.S. Coast Guard Marine Safety Manual, Vol IX, Chap. 5 (Response), COMDTINST M16000.14 [hereinafter MSM]. 43 33 U.S.C. § 1321(c)(1)(B); MSM, supra note 42. 44 33 U.S.C. § 1471 et seq. The Intervention on the High Seas Act supplements these powers, applying to vessels seaward of the territorial sea that pose grave, imminent dangers to the U.S. coastline. 33 U.S.C. § 1472. 45 These powers are consistent with articles 192 and 194 of the United Nations Convention on the Law of the Sea. The United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, entered into force 16 November 1994; reprinted in 21 I.L.M. 1261 [hereinafter UNCLOS]. Planning programs include developing Area Contingency Plans, which identify sensitive environments and cultural resources in coastal regions, prioritize risks, identify available response resources, and outline roles and responsibilities in the event of a pollution incident. 33 U.S.C. § 1321(j). 46 For vessels, the responsible party is any person who owns, operates or charters the vessel. 33 U.S.C. § 2701(32); Marva Jo Wyatt, Financing the Clean-Up: Cargo Owner Liabilities for Vessel Spills, 7 U.S.F. MAR. L.J. 353 (1995). 47 33 U.S.C. §§ 2702(a), 2702(b)(1) & (2), 2704. Damages include damages to natural resources, property, subsistence use, revenues, profits and public services. 33 U.S.C. § 1321(f); U.S. v. Bois D’Arc Operating Corp., Civil Action No. 98-157, 1999 U.S. Dist. LEXIS 3199 (E.D. La., Mar. 9, 1999). This “polluter pays” policy has evolved into a “general principle of international environmental law.” International Convention on Oil Pollution Preparedness, Response and Cooperation, Nov. 30, 1990, available at http://sedac.ciesin.org/pidb/texts/ oil.pollution.prepardness.1990.html. 41

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liable for an oil spill that was caused by “act of war.”48 In addition, if a discharge was caused “solely by an act or omission of a third party,” the vessel operator may recover costs from that third party.49 Furthermore, OPA 90 does not apply to discharges from “public vessels.”50 Abandoning a vessel is not an exception to liability.51 3. The Legal Requirements at Work—Expectations, Process, & Funding The underlying expectation of the legal framework described above is that when an oil spill occurs, a responsible party will initiate immediate containment and removal actions, and will notify the appropriate authorities.52 The normal role of the OSC is thus one of oversight and monitoring.53 Sometimes, however, the responsible party is unwilling or unable to initiate appropriate response actions, or cannot be identified or located. In those situations, the OSC initiates response actions and has access to the Oil Spill Liability Trust Fund (“OSLTF”) to fund response costs and reimburse claimants for damages.54 The system works best once oil hits the water. It tends not to work so well, however, where there is a threat of pollution but no responsible party that is willing or able to step forward 48 33 U.S.C. § 2703(a)(2). The “act of war” exception is recognized at the international level as well. See International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969, Nov. 29, 1969, art. III(2)(a), available at http://sedac.ciesen. org/entri/texts/civil.liability.oil.pollution.damage.1969.html [hereinafter CLC]. 49 33 U.S.C. §§ 2703(a)(3),1321(g), 2702(d). 50 33 U.S.C. § 2702(c)(2). A public vessel is any vessel owned or chartered and operated by the United States, by a state or political subdivision thereof, or by any foreign nation engaged in non-commercial activity. 33 U.S.C. § 2701(29); 40 C.F.R. § 300.5 (2002). 51 Abandonment is discussed in more detail infra. For an abandoned vessel, the person who would have been the responsibility party before abandonment (typically the owner) is the responsible party for any spill from the abandoned vessel, even if the spill occurs years after the abandonment. 33 U.S.C. § 2701(32)(F); see U.S. v. Bois D’Arc Operating Corp., Civil Action No. 98-157, 1999 U.S. Dist. LEXIS 3199 (E.D.La. Mar. 9, 1999). 52 NOAA, Societal Responses—Managing Spills of Oil and Chemical Materials, at http://state-of-coast.noaa.gov/bulletins/html/hms_15/national.html (last visited Mar. 15, 2002). 53 The Coast Guard often takes immediate actions to control the source and contain the discharge while efforts are made to identify and contact the responsible party. MSM, supra note 42, § 5.C.1.c. 54 33 U.S.C. §§ 1321(s), 1486, 2702, 2714. If the OSC believes that a response can be expedited or made more efficient, he or she may take partial or total control of removal activities if: (1) the polluter’s identity is not known; (2) the polluter’s removal efforts are inadequate; and (3) assuming control would prevent a discharge or alleviate substantial threat. MSM, supra note 42. The OSLTF is funded primarily by taxes on crude oil at U.S. refineries, fines, penalties, and interest. It is the principal source of funding for mystery spills, spills caused solely by an act of war, and spills where cost and damages exceed the statutory limits on liability. For more information, see U.S. Coast Guard, Natural Resource Damage Claims Division, National Pollution Funds Center, at http://www.uscg.mil/hq/npfc/nrd.htm (last visited Feb. 8, 2002); Oil Spill Liability Trust Fund, Guidance and Information for Use During an Oil Spill, National Pollution Funds Center, at http://www.uscg.mil/hq/npfc/media.htm (last visited Feb. 8, 2002).

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and initiate actions.55 In this sense, OPA 90 promotes a response-based, reactive approach by an OSC.56

B. The Underwater Cultural Heritage (“UCH”) & Preservation of Historic Shipwrecks While the protection of UCH in the U.S. and internationally is not a new phenomenon—the U.S.S. Arizona Memorial and the U.S.S. Monitor Sanctuary have been around for years—the legal and policy issues remain relatively new and untested.57 The push to protect UCH has gained significant momentum in response to salvage technology that enables private salvors to access thousands of wrecks worldwide.58 A passionate debate between UCH advocates and commercial salvage interests has ensued. While the debate has produced some positive results, a review of existing laws and policies reveals a patchwork of authorities

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See OIG Report, supra note 11. California’s Lempert-Keene-Seastrand Oil Spill Prevention and Response Act takes a similar approach to OPA 90 and the OSLTF. Under California law, a responsible party is absolutely liable for oil spilled in marine waters. It requires the responsible party to take immediate actions to contain, clean up, and remove oil from the environment. A responsible party is liable for all costs of response, cleanup, removal, and treatment, ranging from monitoring costs to economic losses and wildlife rehabilitation—there are no express limits of liability. CAL. GOV’T CODE § 8670 et seq. In addition, while California law states that a responsible party is not liable for damages when a spill is caused by an act of war, the statute indicates that the responsible party would still be liable for any removal costs incurred by the state or local government. CAL. GOV’T CODE §8670.56.5(b). This distinction is unlikely to make a practical difference. If an act of war causes a spill, the Coast Guard would probably take the lead and would access the OSLTF to fund response efforts. The state could seek reimbursement from the OSLTF for response-related costs. It is also interesting to note that California law does not explicitly exempt public vessels from liability for oil spills. However, CAL. GOV’T CODE § 8670.3(m) claims jurisdiction over the federal government only “to the extent permitted by law.” It is generally understood that the sovereign immunity of the federal government would prevent state enforcement actions against government vessels. Environment News Service, U.S. Military Under Attack on Environmental Grounds, at http://ens.lycos.com. ens/jun2001.2001L-06-25-03.html (Jun. 25, 2001). 57 Prott, supra note 2. 58 See e.g., SCRU, supra note 2. In the territorial waters of the U.S. alone, there are over 50,000 shipwrecks, an estimated five to ten percent of which are historically significant. There are over three million shipwrecks worldwide. Peter Tomlinson, “Full Fathom Five”: Legal Hurdles to Treasure, 42 EMORY L.J. 1099, 1100 (1993); Legislative History, Abandoned Shipwreck Act of 1987, 1988 U.S.C.C.A.N. 365, H.R. Rep. No. 100514(I), 100th Congress, 2d Session 1 (1988) [hereinafter Legislative History]; McQuown, supra note 5, at n.5; Reuters, U.N. Convention Set to Protect Sunken Treasures, Environmental News Network, at http://www.enn.com/news/wire-stories/2001/10/103001/ reu_treasures_45407.asp (Oct. 30, 2001). 56

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that lack consistency, uniform standards, and clear directives as applied to old wrecks.59 1. Salvage Law The debate finds it roots in the ancient doctrine of salvage, under which salvors can secure claims against vessel owners or wrecks.60 Marine archaeologists argue, among other points, that new laws and policies must restrain commercial salvage activities at historic sites because such activities put wreck sites in peril and disrupt the delicate equilibrium that these sites have reached.61 Their solution is to manage historic wrecks “out[side] of admiralty law” and expand government title to underwater cultural resources.62

59 Stephen Paul Coolbaugh, Raiders of the Lost . . . Sub? The Potential for Private Claims of Ownership to Military Shipwrecks in International Waters—the Case of Japanese Submarine I-52, 49 BUFFALO L. REV. 929, 931 (2001). 60 A salvor can secure a claim against the vessel owner if he: (1) renders his services voluntarily; (2) is successful in salvaging at least some of the property; and (3) the property was in “marine peril.” McQuown, supra note 5, at 294, Peltz, supra note 1, at 41; Christopher R. Bryant, The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle over Salvaging Historic Shipwrecks, 65 ALB. L. REV. 97, 102-105. In the classic case of The Sabine, the Supreme Court described salvage as “the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.” 101 U.S. 384 (1879). Salvage law operates on the assumption that the owner of the vessel or cargo has not divested herself of ownership. Jupiter Wreck, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel, 691 F. Supp. 1377, 1388 (S.D. Fla. 1998); Thompson M. Mayes, Protection of Historic Shipwrecks—Outline of Legal Issues, SD02 ALI-ABA 795 (Oct. 19, 1998). Sean R. Nicholson, Mutiny as to the Bounty: International Law’s Failing Preservation Efforts Regarding Shipwrecks and Their Artifacts Located in International Waters, 66 UMKC L. REV. 135, 147 (1997). Thus, if a wreck is abandoned, a court will probably apply the law of finds and vest title in the wreck to the finder. Lawrence J. Kahn, Sunken Treasures: Conflicts Between Historic Preservation Law and the Maritime Law of Finds, 7 TUL. ENVTL. L.J. 595, 606 (1994); National Park Service, Final Guidelines: Abandoned Shipwreck Act, 55 Fed. Reg. 50116 (Dec. 4, 1990)[hereinafter NPS Guidelines]. 61 According to UCH advocates, salvors “rip archaeological resources” from the surrounding context, robbing the artifacts of scientific significance and selling artifacts to investors. McQuown, supra note 5, at 292; Bryant, supra note 60, at 109; Sue Williams, Underwater Heritage: A Treasure Trove to Protect, UNESCO Sources, No. 87, Feb. 1997; Varmer, supra note 5, at 280. 62 Id. Archaeologist also view the federal admiralty courts as a “refuge” for the salvage industry, arguing courts are ill-suited for managing public resources and nonmonetary interests. Varmer, supra note 5, at 286; Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 565 (1995); Droomgale, supra note 6. Archaeologists want to leave wrecks “in-situ” to enable historical and archaeological study. UNESCO’s Ratification, Protection, or Destruction, Transcript of BBC Broadcast, moderated by Fredrick Lowe, including Lyndel Prott, UNESCO’s Director of Cultural Heritage and IMAC’s Publisher, Pat Clyne, available at http://www.imacdigest.com/unesco11-01.html (last visited Mar. 13, 2002).

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Many commercial salvors see the UCH movement as an attack on tradition and their livelihood.63 In support of their practices, salvors point out that (1) private entities discover the vast majority of shipwrecks; (2) many shipwrecks must be surveyed as soon as possible before they succumb to the forces of nature; (3) emerging “ethical codes” require salvage companies to conduct operations in a manner consistent with historic preservation principles; and (4) new technologies enable salvors to conduct operations that are consistent with the in-situ preservation approach advocated by archaeologists.64 2. The Legal Landscape—From UNCLOS to the UCH Convention The first coordinated effort to protect historic wrecks took place late in the UNCLOS III drafting process.65 The result was the limited recognition of UCH principles through a broad and vague mandate to preserve the UCH for “the benefit of mankind as a whole.”66 Despite its shortcomings, UNCLOS provided an impetus for national laws and international treaties that provide more expansive and explicit protections for UCH.67 a. U.S. Legislation There are several U.S. laws that provide varying degrees of protection for historic shipwrecks. This section focus on three laws and related programs: the 63

Underwater exploration is one of the few areas of maritime commerce that promises vibrant future growth in the U.S. Hess Report, supra note 6; Howard M. McCormack, The Problems and Pitfalls of Underwater Salvage, LLOYD’S LIST, May 24, 1995, at 8; Bederman, supra note 4, at 102. 64 Myths, supra note 3; Nicholson, supra note 60, at 164; Bryant, supra note 60, at 111, n.135 (stressing that qualified marine archaeologists have yet to discover a single shipwreck site in North American waters because of lack of time and funding, and referencing standards adopted by Pro Sea); Hess, supra note 4 (slowing or stopping legitimate access to wrecks will guarantee looting by unscrupulous individuals); Tomlinson, supra note 58, at 1147 (arguing that the tide of public policy in favor of historic preservation may deprive even the most well-intentioned salvor of a forum, with the ironic result being the discovery of fewer historic shipwrecks); J. Ashley Roach, Shipwrecks: Reconciling Salvage and Underwater Archaeology, Ocean Policy Opportunities, at http://prosea.org/artclesnews/exploration/SHIPWRECKS_RECONCILING_SALVAGE. html (Jan. 10, 1998); Peltz, supra note 1, at 115 (describing a new kind of museum where people can view wrecks that remain underwater thanks to high-tech video systems). 65 Bederman, supra note 4, at 105. 66 UNCLOS, supra note 45, arts. 149, 303. Article 149 calls for the preservation of archaeological resources in the Area—meaning the sea bed and ocean floor beyond the limits of national jurisdiction. Article 303 places a duty on states “to protect objects of an archaeological and historical nature found at sea. . . . ” This article enabled coastal states to exert jurisdiction over UCH to the 24-mile contiguous zone; however, UNCLOS preserved salvage law and other rules of admiralty. Nicholson, supra note 60, at 154; O’Hara, supra note 2 (noting that UNCLOS provides little protection for UCH); Carlos Esposito, Remarks at the Conference “Bringing New Law to Ocean Waters,” U.C. Berkeley, Boalt Hall School of Law, Apr. 5-6, 2002. 67 Id. Beginning in the mid-1980s, a number of coastal states began to claim rights and title to wrecks located off their coasts. Bederman, supra note 4, at 112; Droomgale, supra note 6.

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Abandoned Shipwreck Act (“ASA”) of 1987, the National Historic Preservation Act of 1966, and the National Marine Sanctuaries Act.68 (1) The Abandoned Shipwreck Act The ASA gives states the authority to manage historic shipwrecks located on state submerged lands69 to promote historic preservation, environmental protection, and recreational exploration.70 State authority extends to abandoned71 shipwrecks that are (1) embedded in the submerged lands within a state’s territorial waters; (2) embedded in coralline formations that are protected by the state or found in the state’s territorial waters; or (3) are located on submerged lands within a state’s territorial waters and are included or are eligible for inclusion in the National Register for Historic Places.72 The Act does not explicitly address the interface between historic preservation values and environmental response operations; however, the legislative history suggests an intent not to interfere with salvage operations that are consistent with the “protection of historic values and environmental integrity” of wrecks and the surrounding environment.73 Thus, it appears that the ASA would not impede environmental response operations so long as responders address applicable historical preservation issues. 74 68

43 U.S.C. § 2101 et seq. (ASA); 16 U.S.C. § 470 et seq. (National Historic Preservation Act); 16 U.S.C. § 1431 et seq. (National Marine Sanctuaries Act). 69 State submerged lands are defined by the Submerged Lands Act of 1953; for most states, the limit is three miles offshore. 43 U.S.C. § 1312. 70 43 U.S.C. §§ 2102(b), 2103(a). 71 Abandonment is the critical threshold requirement under the ASA. The Supreme Court recently pronounced that abandonment under the ASA “conforms with its meaning under admiralty law.” California v. Deep Sea Research, Inc., 523 U.S. 491 (1998). Under traditional admiralty law principles, an owner abandons a vessel when he affirmatively renounces title to the vessel or when circumstances give rise to an inference of abandonment. See e.g., Sea Hunt, Inc. v. Unidentified, Shipwrecked Vessel or Vessels, 22 F.3d 634 (4th Cir. 2000); Katsaris v. United States, 684 F.2d 758, 762 (11th Cir. 1982); Deep Sea Research, Inc. v. The Brother Jonathan, 102 F.3d 379 (9th Cir. 1996); Moyer v. The Wrecked & Abandoned Vessel, Known as the Andrea Doria, 836 F. Supp. 1099 (D.N.J. 1993)(noting that the insurer had passed on several offers of salvage, and inaction on the part of insurer in the face of independent salvage operations indicates abandonment). 72 43 U.S.C. § 2105(a), 2105(c). Technically, the ASA grants title in the wrecks to the federal government, and then automatically transfers title to the applicable states. Title is not transferred if a wreck is on the public lands of the U.S. or on tribal lands. 43 U.S.C. § 2105(d). The ASA mandates that the laws of salvage and finds shall not apply to wrecks that qualify for state title. 43 U.S.C. § 2106(a); Tomlinson, supra note 58, at 1115. Congress stated that the laws of salvage and finds were not well-suited to the preservation of historic shipwrecks because the wrecks are not in “marine peril” and states should have title to the wrecks, eliminating the assumption under finds law that the wrecks have no owner. Legislative History, supra note 58. The Act does, however, preserve the applicability of salvage and finds law to historic wrecks located outside of state submerged lands. McQuown, supra note 5, at n.71; Peltz, supra note 1, at 59. 73 Legislative History, supra note 58. 74 California has its own law on historic shipwrecks under which it asserts title to all abandoned shipwrecks on state submerged lands “for the benefit of the people of the state.” The statute includes a presumption of historical significance for any wreck that has been underwater for more than fifty years. This fifty-year presumption makes the statute

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(2) The National Register of Historic Places The National Register of Historic Places (“the Register”), established under the National Historic Preservation Act of 1966 (“NHPA”), is probably the most important avenue for protecting the historic wrecks discussed in this paper.75 A shipwreck is eligible for listing on the Register if it (1) is associated with events that have made a “significant contribution to the broad patterns of our history;” (2) is associated with the lives of persons significant in our past; (3) embodies distinctive characteristics of a type, period, or method of construction; or (4) yields or will likely yield information important to history.76 In addition, a wreck that meets one of the four criteria describe above must retain integrity of “location, design, setting, materials, workmanship, feeling, and association” to achieve historic status.77 To be eligible for listing, a wreck must be over fifty years old.78 While the Register has been used to protect hundreds of shipwrecks, the National Park Service concedes that its application to shipwrecks is not welldefined or understood, resulting in “uneven and contradictory treatment” by

arguably broader than the ASA. Consequently, many commentators suggest that the ASA preempts California law to the extent that is applies to wrecks that do not meet the requirements of the ASA. This argument finds support in the legislative history for the ASA, which indicates a frustration with inconsistent state laws regarding ownership and responsibility for historic shipwrecks in state waters. In addition, in the Brother Jonathan case, the district court held that the California statute was preempted by the ASA to the extent that it asserted state title to shipwrecks that are not covered by the ASA. The Supreme Court declined to address the preemption issue on appeal, so question remain. CAL. PUB. RES. CODE § 6313; Peltz, supra note 1, at 94, n.718; Legislative History, supra note 58; Deep Sea Research, Inc. v. The Brother Jonathan, 883 F. Supp. 1343 (N.D. Ca. 1995); California v. Deep Sea Research, Inc., 523 U.S. 491 (1998). 75 16 U.S.C. § 470, et seq. The Register includes about 74,000 districts, sites, buildings, structures, and objects that are significant in American history and culture. National Park Service, National Register Information System, at http://www.cr.nps.gov/nr/research/nris.html (last visited Apr. 16, 2002). The Register is not only a criterion for eligibility for state title under the ASA, but it is also an independent ground for protecting wrecks that are outside of state waters. See, e.g., News Release, MMS Ensures Nation’s Historic Shipwrecks are Protected as Archaeologists Share in U-Boat Discovery, Minerals Management Service, at http://www.gomr.mms.gov/hompg/whatsnew/newsreal/ 010615.html (Jun. 15, 2001) (describing how MMS uses the Register to protect wrecks discovered on the Outer Continental Shelf) [hereinafter MMS Release]. 76 36 C.F.R. § 60.60.4 (2002); National Park Service, National Register of Historic Places—Listing Property, Criteria for Listing, at http://www.cr.nps.gov/nr/listing.htm (last updated Nov. 1, 2001)[hereinafter Register Guidelines]; James P. Delgado, National Register Bulletin: Nominating Historic Vessels and Shipwrecks to the National Register, 1992, available at http://www.cr.nps.gov/nr/publications/bulletins/vsintro.htm (last visited Apr. 28, 2002). 77 Delgado, supra note 76. Other possible considerations include whether the wreck is (1) the sole, best, or good representative of a specific vessel type; (2) whether it is associated with a significant design or builder; or (3) if it was involved in important maritime trade, naval, recreational, government, or commercial activities. 78 Register Guidelines, supra note 76 (noting that exceptions are sometimes made to the fifty year rule).

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historians and archaeologists.79 It is thus not very surprising that existing guidelines do not address the intersection of historic preservation and environmental response operations. Despite its shortcomings, the Register is an important preservation tool and appears to provide flexible criteria for determining historical significance.80 A wreck’s eligibility for or actual listing on the Register has important consequences for environmental response operations. Under § 106 of the NHPA, when a federal agency undertakes, directs, and funds a project or activity that may substantially alter, demolish, or otherwise impact a listed or eligible property, the agency must consider the impact of the project on the property and consult with the Advisory Council on Historic Preservation (“ACHP”).81 To streamline the consultation process, the ACHP has a “programmatic agreement” procedure to enable agencies to reach agreements with the ACHP in advance.82 Because the Coast Guard often directs and funds (via the OSLTF) response operations, an OSC’s decisions may be subject to the § 106 review process if the operations potentially affect historic properties. The National Response Team (“NRT”)83 recognized this possibility in 1995 and formed its Ad Hoc Committee on Cultural Resources to develop guidance regarding § 106 and federally-led oil spill response operations.84 The Committee developed a Programmatic Agreement (“NCP Programmatic Agreement”) that clarifies the roles and responsibili-

79 Id. The major problem is it is difficult to satisfy the Register's documentation requirements because the location of many wrecks makes them difficult to document properly. 80 See id. The Register is the primary authority that requires the U.S. Navy to protect and preserve hundreds of Navy shipwrecks and historic properties. Department of the Navy, Policy Regarding Custody and Management of Sunken Naval Vessels and Aircraft Wreck Sites, Naval Historical Center, at http://www.history.navy.mil/faqs/faq28-1.htm (Jul. 20, 2000); Donald G. Shomette, The U.S. Navy Shipwreck Inventory Project in the State of Maryland, Naval Historical Center, at http://www.history.navy.mil/ branches/org12-7a.htm (May 25, 2001); Chief of Naval Operations Instruction 5090.1A (establishes Navy policy under the NHPA). 81 16 U.S.C. § 470f; 36 C.F.R. §§ 60.2, 800.16(y); Donna J. Seifert, National Register Bulletin, Defining Boundaries for National Register Properties, at http://www.cr.nps. gov/nr/publications/bulletins/boundaries (last visited Apr. 27, 2002). The concept of federal direction and funding appear broad—it applies to work done under government contract or projects only partially directed or funded by a government agency. The Advisory Council on Historic Preservation is an independent federal agency. See http://www. achp.gov. 82 36 C.F.R. § 800.14(b), § 60.2 (2002). The project agency must consider the ACHP’s comments in its decision making process; however, program decisions ultimately “rest with the agency implementing the undertaking.” 83 The NRT is made up of sixteen federal agencies with responsibilities and expertise in emergency responses to pollution incidents. National Response Team 2002 Brochure, at http://www.nrt.org/epa/nrt/home.nsf/resource/publication/$file/2002NRTbrochure.pdf (2002). 84 Background on the Formation of the NRT Ad Hoc Committee on Cultural Resources and the Development of the Programmatic Agreement, available at http://www. achp.gov/NCP-PA-background.html (last updated Apr. 26, 2002).

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ties of an OSC during a response and provides “some measure of protection” if an OSC’s actions are challenged under the NHPA.85 The NCP Programmatic Agreement applies to response operations where the standard case-specific § 106 process is not reasonably practicable, and provides an alternative mechanism to ensure responders consider the impact of operations on historic properties.86 It establishes an interagency “expert” network to ensure that OSCs have access to historic preservation expertise during preincident planning and response operations.87 One shortcoming of the agreement is that it appears to focus on land-based historic resources. It does not specifically address historic shipwrecks, and most of its procedures focus on situations where oil may contaminate an historic or archaeological site. To apply the Agreement to an historic shipwreck that is the source of pollution, an OSC may need the advice of different players and a different underlying support network given the problems of access and information availability inherent in shipwreck sites.88 But at least the existing Programmatic Agreement provides a starting point. (3) The National Marine Sanctuary Program The National Marine Sanctuary program provides yet another mechanism to protect historic shipwrecks. Under the National Marine Sanctuaries Act, the federal government may set aside discreet marine areas of special significance, otherwise known as marine sanctuaries.89 Comprehensive sanctuary regulations address liability for the destruction, loss of, or injury to sanctuary resources, including historical and cultural resources.90 In addition, the government has established certain sanctuaries for the express purpose of preserving and protecting historic shipwrecks, including the Monitor National Marine Sanctuary and the Thunder Bay National Marine Sanctuary.91 While sanctuary regulations can 85

Id. Programmatic Agreement on Protection of Historic Properties During Emergency Response Under the National Oil and Hazardous Substances Pollution Contingency Plan, available at http://www.achp.gov/NCP-PA.html (last updated Apr. 26, 2002) [hereinafter NCP PA]. 87 Id. Planning directives include identifying historic properties, developing a list of historic preservation experts, and devising response strategies to protect historic properties—and incorporating this information into applicable Area Contingency Plans. Operational directives address physical destruction, damage, or alteration of all or part of an historic property, including (1) placement of physical barriers; (2) establishing camps for response personnel and storage areas for response equipment; and (3) preventing oil from coming in direct physical contact with historic properties. 88 See Delgado, supra note 76. 89 16 U.S.C. § 1431 et seq.; 15 C.F.R. § 922 (2002). 90 Id.; The National Marine Sanctuary Program Regulations, at http://www.sanctuaries.nos.noaa.gov/natprogram/npregulation/npregulation.html (last visited Apr. 27, 2002). 91 NOAA, Monitor National Marine Sanctuary, at http://monitor.nos.noaa.gov (last updated Oct. 31, 2000); NOAA, Thunder Bay National Marine Sanctuary and Underwater Preserve, at http://glerl.noaa.gov/glsr/thuderbay/ (describing the 13th National Marine Sanctuary, devoted to the protection of over 116 historically significant shipwrecks in “Shipwreck Alley” in the Great Lakes). Other sanctuaries, including the Monterey Bay 86

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provide effective protection for wrecks, their applicability is obviously limited to wrecks located within sanctuary boundaries. b. International Developments & the UCH Convention There are a number of bilateral and multilateral agreements and standards addressing shipwrecks of historic or cultural significance. Many focus on specific wreck sites.92 These initiatives set the stage for the recent Convention on the Protection of the Underwater Cultural Heritage (“UCH Convention”).93 Its goal is to improve the effectiveness of measures at the international, regional, and national levels for the preservation in-situ or, if necessary for scientific or protective purposes, the careful recovery of UCH.94 The UCH Convention’s principle command is that states should always consider in-situ preservation as the first option when dealing with historic wrecks, but the Convention acknowledges a role for responsible, non-intrusive access when necessary to observe and document wrecks for the public good.95 Although the UCH Convention is an important development, it is not a factor for the historic shipwrecks discussed in this paper because the Convention applies only to “all traces of human existence” having cultural, historical, or archaeological character which have been underwater for at least one-hundred years.96 Thus, it will not apply to wrecks such as the Montebello for another thirty to forty years.97 It is therefore not surprising that the Convention stops National Marine Sanctuary, the Channel Islands National Marine Sanctuary, and the Gulf of the Farallones National Marine Sanctuary, track and manage historic wrecks as well. Channel Islands National Marine Sanctuary, at http://www.cinms.nos.noaa.gov/cultres. stm (last visited Apr. 28, 2002); Gulf of the Farallones National Marine Sanctuary, at http://www.gfnms.nos.noaa.gov/ (last visited Apr. 28, 2002); Monterey Bay National Marine Sanctuary, at http://www.mbnms.nos.noaa.gov (last visited Apr. 28, 2002). 91 CAL. PUB. RES. CODE § 6313. 92 For example, Estonia, Finland, and Sweden have agreed to measures protecting the wreck of the Estonia, which sank in 1994. The United States and France have an agreement regarding the protection of the C.S.S. Alabama, which sank off the French coast in 1864. O’Hara, supra note 2, at 4.4. In 1996, the International Council of Museums and Sites (“ICOMOS”) adopted its International Charter of the Protection and Management of the Underwater Cultural Heritage, which set forth principles to prevent the unnecessary disturbance of venerated sites. The ICOMOS Charter on the Protection and Management of Underwater Cultural Heritage, available at http://www.prosea. org/articles-news/unesco/criteria_archaeology_heritage_management.html (Oct. 9, 1996). 93 The UCH Convention was developed under the auspices of the United Nations Educational, Scientific and Cultural Organization (“UNESCO”). It was adopted on Nov. 2, 2001, by the Plenary Session of the 31st General Conference, and will enter into force three months after the deposit of the 20th instrument of ratification, acceptance, approval, or accession. UCH Convention, supra note 5. 94 Id. 95 UCH Convention, supra note 5, arts. 2, 7-10; annex, rule 1. The Convention requires states to apply the terms of the Convention in their internal waters, territorial seas, and contiguous zones, and mandates a broader responsibility for nations to protect UCH in their EEZs, Continental Shelves, and in the Area. 96 Id., at art. 1. 97 The Convention does not, however, preclude a state from enacting legislation or entering into treaties to protect wrecks that are less than one hundred-years old. UCH

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short of addressing the environmental threat posed by historic shipwrecks, leaving it up to domestic legislation or specific international agreements to address these issues.98 3. The Special Case of Warships & Other Government Vessels The wrecks of warships and other government vessels merit separate discussion because the ownership and historic preservation rules and policies that apply to them are unique.99 It is a general principle of customary international law that wrecks of warships and other state-owned vessels remain under the control of the sovereign flag-state and are entitled to sovereign immunity wherever in the world they happen to be located.100 In the U.S., the federal government retains title to U.S. ships for an indefinite period unless it abandons or transfers title as directed or authorized by Congress.101 Convention, supra note 5, art. 6; UNESCO, Report by the Director General on Action Taken Concerning the Desirability of Preparing an International Instrument for the Protection of the Underwater Cultural Heritage, General Conference, 29th Session, Aug. 5, 1997 [hereinafter Director General Report]; UNESCO, Final Report of the First Meeting of Governmental Experts on the Draft Convention on the Underwater Cultural Heritage, at http://www.unesco.org/culture/laws/underwater/ html_eng/report13.shtml (last updated Jan. 3, 2001). Proponents of the threshold argue that the century mark is a common cutoff point in many legal systems, and ensures that the Convention will not interfere with modern salvage operations. Others point out, however, that the one hundred-year mark was simply the product of compromise and reflects significant disagreement over appropriate time-based thresholds. Director General Report, supra note 97; McQuown, supra note 5, at 323-24; Bederman, supra note 4 (discussing earlier proposals such as 25 years from the discovery of capable salvage technology, or 50 years from the last assertion of interest by an owner). 98 The National Register criteria, described supra, is one example. In addition, Canada has designated the wreck of the Edmund Fitzgerald as a historical site, forbidding the removal or artifacts from the wreck site. The Edmund Fitzgerald was a 729’ ore carrier that sank in Lake Superior during a horrific storm on Nov. 10, 1975. Ravi Neel Kasbaker, Lasting Record of Tragedy on Great Lakes, LLOYD’S LIST, Apr. 4, 1997, at 5; Alan Daniels, Wreck’s Brass Bell Recovered, LLOYD’S LIST, Jul. 12, 1995, at 3. 99 For example, the UCH Convention does not apply to relatively modern warships-because of the one-hundred year threshold, and the language in Article 2, stating that the Convention does not “modify rules of international law and state practices regarding sovereign immunity of state vessels. UCH Convention, supra note 5, art. 2. 100 O’Hara, supra note 2. Roach, supra note 64. Title to a government vessel is lost only by capture or surrender during battle before sinking, by international agreement, or by an express act of abandonment, gift, or sale by the sovereign in accordance with relevant principles of customary international law and the law of the flag state. Robert S. Neyland, Sovereign Immunity and the Management of United States Naval Shipwrecks, Naval Historical Center, at http://www.history.navy.mil/branches/org12-7h.htm (May 25, 2001); NPS Guidelines, supra note 60; Jerry E. Walker, A Contemporary Standard for Determining Title to Sunken Warships: A Tale of Two Vessels and Two Nations, 12 U.S.F. MAR. L.J. 311, 312 (1999); United States v. Steinmetz, 763 F. Supp. 1293 (D.N.J. 1991)(holding that a sunken Confederate warship is the property of the U.S. government); Hatteras, Inc. v. the U.S.S. Hatteras and the United States of America, 698 F.2d 1215 (5th Cir. 1982). 101 Id.; U.S. CONST. art. IV, § 3, cl. 2; 10 U.S.C. §§ 7305-07 (listing procedures for striking a vessel from the Naval Register); 40 U.S.C. § 484(j)(listing procedures for trans-

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Based on these general rules, a coastal state does not acquire any right of ownership to a sunken warship of another nation simply because the wreck is located on land or seabed over which it exercises sovereignty.102 While the flag state retains ownership to these wrecks, access to the wreck sites does fall under coastal state control in accordance with international law.103 For example, the sovereign immunity status of a wreck does not affect the right of a coastal, territorial sovereign to engage in legitimate operations, including the removal of navigational obstructions and the prevention of damage to the marine environment, provided that it provides proper notice to the flag state.104 State practice indicates that the coastal state bears the costs of responding to such navigational and environmental threats.105 To help formalize these customary rules and state practice, some nations have entered into agreements to protect warships and other state-owned wrecks.106

IV. The Three Wrecks Revisited—Analysis of Legal & Policy Issues in Context A. The U.S.S. Arizona 1. Ownership & Pollution Response Liability In terms of oil spill liability, the wreck of the U.S.S. Arizona poses a relatively simple case. The U.S. Navy owns the wreck, and the National Park Service manages the wreck site.107 Because the U.S.S. Arizona is a “public vessel” entitled to sovereign immunity, the wreck is exempt from OPA 90’s liability re-

ferring title in ships operated by the Maritime Administration); Clinton Statement, supra note 7. 102 Roach, supra note 64; Clinton Statement, supra note 7 (stating that the United States will protect its vessels whether they are located in U.S. waters, waters of a foreign nation, or in international waters). 103 Roach, supra note 64 (noting that it is the general policy of most nations to honor requests from flag states to visit and pay their respects to sunken warships). 104 Id. 105 See discussion of the Blucher operation, infra n.114. 106 In 1995, France, Germany, Japan, Russia, the United Kingdom, Northern Ireland, and the United States issued a joint statement acknowledging flag state property rights over state shipwrecks and prohibiting salvage or attempted salvage of such wrecks without the express permission of the flag state. 1995 Joint Statement on Sunken State Vessels and Aircraft, Cable to American Embassies Bonn, London, Tokyo, Paris, and Moscow, Unclassified Naval Message dated Sept. 1995, on file, Naval Historical Center, Washington, D.C. [hereinafter Joint Statement]. To be approved, a proposed salvage plan must provide research designs, conduct site surveys, employ techniques to ensure minimal site disturbance, be supported by adequate financial resources, and include a conservation plan. 107 See Clinton Statement, supra note 7; Neyland, supra note 100.

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gime.108 The Navy and the Park Service are not “responsible parties” under OPA 90 and are not legally required to act to address the risk or remove the oil.109 Despite this statutory exemption, a combination of factors, including internal policies, public relations, and political pressure have compelled the Navy to take more responsibility for environmental issues involving their vessels.110 In the case of the Arizona, the Navy has taken a proactive role, working in conjunction with the National Park Service and the Coast Guard as part of the ongoing studies and analysis of the wreck site.111 Ultimately, whatever actions are taken to remove the Arizona’s oil, it is clear that the Navy will pay for it (along with the taxpayers). The real issue, however, is exactly what, if anything, can be done to remove the oil given the Arizona’s unique historical significance and its status as a war grave. 2. Pollution Response vs. Historic Preservation The historical significance of the Arizona is undisputed.112 It is listed on the National Register of Historic Places and it is a National Memorial. This special status clearly limits available operational choices to remove the oil. Studies of the wreck have shown that fuel oil has spread throughout different sections of the hull and cabin areas.113 If the Arizona were a run-of-the-mill wreck of no historical value, the operation could be relatively straightforward—responders could station boom and skimmers at strategic locations in Pearl Harbor while salvage crews cut up the wreck to release the oil. That scenario is not realistic given the wreck’s special status. Ultimately, a discussion of possible response options is a technical issue beyond the scope of this paper, except to note that there have been successful operations that removed large amounts of oil from “war grave” wrecks.114 The most important consideration now is that the Arizona 108

33 U.S.C. § 2702(c)(2). See 33 U.S.C. § 2702(c)(2); § 2703(a)(2). 110 See, e.g., OPNAVINST 5090.1B, Chapter 19, Environmental Compliance; COMSCINST 5090.1, Environmental Protection Policy; Laura Hunter, Public Supports Navy Regulation for Environmental Protection and Emergency Planning, SAN DIEGO EARTH TIMES, at http://www.sdearthtimes.com/et900/et900s6.hml (Sept. 2000); Hal Spencer, Oil Spills a Sticky Problem for Navy, THE HOLLAND SENTINEL, at http://www.thehollandsentinel.net/stories.112298/ new_oilspill.html (Nov. 22, 1998); Military Sealift Command, Environmental Issues Newsletter, No. 168, Oil Pollution Regulations, at http://www.msc.navy.mil/N7/ein/19ein.htm (Jan. 4, 1998) (stating that MSC vessels will comply with environmental regulations). 111 See, e.g., The Arizona Study, supra note 13; Cindy Seabreeze, U.S.S. Arizona Studied By Divers, DiveNews.com, at http://www.divenews.com/article.php?sid=50 (Jul. 2, 2001) (discussing Navy plans for pollution response). The Navy has implemented “interim measures” which include stationing special response crews armed with containment boom and skimmers at Ford Island. Applicable response plans call for the Navy crews to deploy boom to contain any oil spills, and use skimmers to remove oil from the surface. 112 The Arizona Study, supra note 13; Russell, supra note 16. 113 Russell, supra note 16. 114 For example, in the early 1990s, the Norwegian government initiated an extensive study and risk assessment of World War II wrecks off the Norwegian coast, including the Blucher, a German heavy cruiser sunk by Norwegian forces in 1940. Studies of the Blucher concluded that an environmental catastrophe was imminent. A November 109

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is an actively managed resource and thus has the attention of experts who can assess the environmental risks involved. From this perspective, the Arizona represents a success story—the risk of a major oil spill has been identified, acknowledged, and analyzed, even though its unique historical status may severely limit available response options.

B. The S/S Montebello The Montebello presents a far more challenging situation—the wreck of an oil tanker loaded with millions of gallons of oil sits just outside of the largest and most ecologically-rich marine sanctuary in the United States.115 The critical issues are if, when and how the oil should be removed, and at what point the wreck becomes a “substantial threat” that requires imminent response action.116 Obviously, the worst case scenario would be for the Montebello to start leaking oil and require a “reactive” response before up-front planning can take place. 1. Pollution Liability—The “Act of War” Exception It is not clear who owns the wreck—Union Oil owned the tanker when it sank, and it is possible, but highly unlikely, that the hull underwriter took title to the wreck afterwards.117 In either case, there is a strong argument that the wreck is 1994 operation successfully removed approximately ninety percent of the oil from the wreck using non-intrusive technology that minimized the risk of an accidental discharge and unnecessary damage to the integrity of the wreck (which serves as a grave for hundreds of sailors). The only catch was the price—the operation cost Norwegian taxpayers over eleven million U.S. dollars. The Norwegians hoped to recover some costs by selling the oil; however, the recovered oil proved to be unusable. Haast, supra note 7 (noting that nearly one thousand of the twenty-four hundred German sailors on board went down with the ship; Thornstein Dreyer, Higher Priority to Environmental Measures in Many Sectors, Ministry of Foreign Affairs, at http://odin.dep.no/odin/engelsk/norway/environment/ 032005-990453/index-dokooo-b-h-a.html (Aug. 7, 1995)(discussing efforts that included surveys, risk assessments, and funding for operations); John Prescott, ‘Blucher’ Oil Recovery Starts, LLOYD’S LIST, Oct. 20, 1994, at 12; John Prescott, Defusing the ‘Blucher’ Time Bomb, LLOYD’S LIST, Nov. 4, 1994, at 7 (noting that deterioration had heavily pitted the hull and reduced its thickness by one half); Haast, supra note 7. 115 Overview of the Monterey Bay National Marine Sanctuary, A Message from the Superintendent, at http://www.mbnms.nos.noaa.gov/Intro/index.html (last visited Apr. 23, 2002)[hereinafter Overview]. 116 33 U.S.C. § 1321(c)(1)(A). 117 Maritime insurance is a complex subject, and a detailed explanation of it is beyond the scope of this paper. In general, there are two types of policies that a vessel owner might carry—Hull insurance and Protection & Indemnity (“P&I”) insurance. Hull insurance typically covers the hulls and cargoes of vessels in the event of collisions. P&I policies are far broader, and include protection against claims involving wreck removal and environmental damage. When the owner of a sunken vessel receives payment for the full value of the vessel from a hull underwriter, title passes to the underwriter via its right of subrogation. When that happens, the wreck is not abandoned and the underwriter is technically responsible for future liabilities associated with the wreck. This principle assumes that the underwriter agreed to take title—an assumption that may be accurate for

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abandoned. Given the limitations of underwater technology in the 1940s and the fact that the ship sank in over 900 feet of water, it is unlikely that Union Oil or the hull insurers thought the wreck was recoverable.118 In addition, neither Unocal nor an insurance company has expressed any interest in or association with the wreck since its “discovery” in 1996.119 Under OPA 90, abandonment is not a defense to liability, and thus, absent other factors, Union Oil (or Unocal) would be liable for the Montebello’s oil.120 This general conclusion should not apply in this case, however, because the Montebello was sunk by a Japanese submarine during wartime and thus clearly qualifies for the “act of war” exemption.121 After all, it was the sinking of the ship over sixty years ago that “caused” today’s environmental threat. Thus, the plain language of OPA 90 suggests that Unocal and any other former “owners” are not liable for future removal costs or damages.122 As a result, it is likely that any future operations to remove the oil will be led by the Coast Guard and funded by the OSLTF.123 2. The Montebello’s Claim to Historical Significance Those involved in the 1996 dive and survey of the Montebello claim that the wreck is “certainly eligible” for listing on the National Register of Historic Places.124 That claim may be accurate considering the wreck it is arguably asso-

older “treasure” wrecks where potential future liabilities are limited; however, it is far less accurate when dealing with relatively modern wrecks. Most modern day hull insurers, after determining that a wreck is not recoverable in a cost-effective manner and paying the claim, refuse to accept title to sunken vessels to avoid being on the hook for future liabilities. See e.g., Paul Lynch, Commercial and Private Marine Insurance, http://www. insuremarine.com/policies/pandi.html (last visited Apr. 17, 2002); Deep Sea Research, Inc. v. The Brother Jonathan, 883 F. Supp. 1343 (N.D. Cal. 1995) (salvors had entered into an agreement with the insurers of the ship who had paid out claims at the time of the loss); Subsea Heritage Draft Sails into Choppy Waters, Lloyds List, Oct. 26, 2001, at7; Howard M. McCormack, Finders Keepers—Losers Weepers: Underwriters’ Problems with Deep Sea and Other Salvage Operations, at http://www.thefederation.org/public/Quarterly/Fall98/mccormack.htm (1998). Insurance policies do vary, with some insurers agreeing to pay the cost of wreck removal, while others pay off claims on the vessel but leave it to the owner to deal with wreck removal and further liabilities created by the wreck. Fred Davis, Skimping on Insurance Could Spell Trouble, United Marine Underwriters, at http://www.unitedmarine.net/Articles/Confused.htm (2000). 118 Id. 119 Lamb, supra note 22 (noting that UNOCAL has made no comment about the discovery of the wreck). 120 See 33 U.S.C. § 2701(32)(F). 121 See 33 U.S.C. § 2703(a)(2). 122 Id. 123 One might argue that Japan could be held liable for some or all of the response costs. After all, the sinking of the Montebello was caused “solely by an act” of Japan. See 33 U.S.C. 2703(a)(3). This argument would probably fail. The Montebello was a legitimate war-time target, and at the time, her sinking was consistent with the Law of War. For a discussion of the environment and the Law of War, see, e.g., Laurent R. Hourcle, Environmental Law of War, 25 VT. L. REV. 653 (2001). 124 See Robinson, supra note 19; Hunter, supra note 26.

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ciated with an event that made a “significant contribution” to U.S. history.125 In addition, the wreck has been underwater for more than sixty years,126 and it remains in “excellent” shape, at least retaining “integrity of design and materials.”127 Based on these facts, although the Montebello is not presently listed on the National Register of Historic Places, a strong case can be made for its eligibility.128 3. Management—Response vs. Preservation Unlike the U.S.S. Arizona, the wreck of the Montebello is not an actively managed resource, although at least response agencies and sanctuary managers are aware of it. The wreck is located just outside of the Monterey Bay National Marine Sanctuary (“MBNMS”) and six miles offshore, so the wreck does not qualify for protection under the ASA or sanctuary regulations.129 Despite that technicality, it makes sense to have the MBNMS manage (or coordinate the management of) the wreck site; after all, the Montebello is “part” of the Sanctuary in many ways.130 With over 3.1 million gallons of crude oil on board, the wreck of the Montebello clearly threatens the productive and pristine coastal environment of the Sanctuary.131 It is unclear exactly if, when, and how authorities plan to remove the oil from the Montebello. Despite this uncertainty, it appears inevitable that any response operations will be government-led and funded.132 While the Coast Guard’s decision in 1996 to leave the wreck alone until better technology comes along was the right one at the time, the Jacob Luckenbach incident shows what can happen if agencies wait too long to respond. The promising developments in underwater technology touched on earlier in this paper suggest that an operation could mitigate the pollution threat while preserving the integrity of the wreck site for historic preservation and ecosystem management purposes. To date, the Montebello represents another success story—an example of government agencies taking a proactive approach to locate and study a wreck 125

See 33 C.F.R. § 60.60.4 (2002); Register Guidelines, supra note 208. The Montebello is symbolic of the short period of World War II when the U.S. West Coast was a battleground. The Sinking of the Tanker SS Montebello, 1st Memorial, THE CAMBRIAN, Dec. 28, 1972, at 8, available at http://www.oldmorrobay.com/submaintext.html (last visited Feb. 5, 2004). 126 Register Guidelines, supra note 76. 127 Delgado, supra note 76. 128 The § 106 process probably applies. 129 Weir, supra note 22; 43 U.S.C. § 2105(a). 130 In fact, the MBNMS has taken an active role in studying the Montebello. The MBNMS Research Program was instrumental in coordinating the effort to discover and study the Montebello. Andrew DeVogelaere, The Sanctuary Research Program: A Former “Missing Link” in Our Marine Research Mecca, MBNMS Fall 1997 Newsletter, at 7, available at http://bonita.mbnms.nos.noaa.gov/educate/newsletters/news_97_fall/ news97fallpg7.html. 131 See supra note 22. The wreck is also an artificial reef teeming with marine life, and has thus become an integral part of the surrounding marine environment. 132 Possible response techniques that might be used include steam heating the crude oil and pumping it out of the tanks, or mixing the oil with a liquid polymer that would harden the cargo into a solid mass. Weir, supra note 22.

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before it becomes an imminent threat. The key here is follow through— developing a plan to address environmental response and historic preservation before the wreck becomes an imminent and “substantial threat.”

C. The Jacob Luckenbach Both the Arizona and Montebello provide agencies with the “luxury” of assessing the environmental risks before significant pollution becomes a problem. The Jacob Luckenbach incident, on the other hand, is an example of what can happen when a wreck is forgotten or not managed before it becomes an active pollution threat. The incident suggests that existing programs designed to identify and monitor old wrecks need some improvement. 1. Liability for Pollution Response and Natural Resource Damages Luckenbach Lines owned the Jacob Luckenbach when the ship sank, and the insurance claim was paid by the American Hull Insurance Syndicate.133 For the purposes of this analysis, assume that the underwriter followed the usual industry practice and did not take title to the wreck after it paid the claim.134 Based on this assumption, there is a strong argument that the wreck is abandoned.135 Thus, under OPA 90, Luckenbach Lines is the responsible party.136 Unfortunately, Luckenbach Lines went out of business in the early 1970s, and efforts to find an entity with a financial stake in the company have been unsuccessful.137 Even if the Coast Guard were to find an entity with some connection that happens to have money, the entity’s potential liability would be sufficiently open to question that protracted and contentious cost recovery proceedings would almost certainly follow. Some industry analysts have raised the possibility that the government might look to Matson under a third party liability theory.138 After all, Matson’s Hawaiian Pilot collided with the Jacob Luckenbach.139 Based on the text of OPA 90, however, a third party claim against Matson would probably fail—a third party may be held liable for costs and damages only if an oil spill was caused solely “by an act or omission” of the third party.140 The Coast Guard Ma133

See History, supra note 27. American Hull Insurance Syndicate is still in business today. 134 See supra note 117. 135 See, e.g., Elizabeth A. Jackson, Adams v. Unione Mediterranea di Sicurta: The Fifth Circuit Jumps to Conclusions on the Question of Abandonment, 75 TUL. L. REV. 1823, 1829 (2001). 136 See 33 U.S.C. § 2701(32). Although the ship sank almost fifty years ago, the spill is a present day problem, and OPA 90 does not have any time bars on liability. See James Boyd, A Market-Based Analysis of Financial Assurance Issues Associated with U.S. Natural Resource Damage Liability, available at http://europa.eu.int-commenvironmental/liability/insurance_us.pdf (last visited Feb. 15, 2004). 137 See e.g., O’Brien, supra note 27. 138 People and Places, LLOYD’S LIST, Feb. 27, 2002, at 7. 139 See Marine Board, supra note 28. 140 33 U.S.C. § 2702(d).

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rine Board investigation concluded that both masters were at fault in the collision.141 The sinking of the Jacob Luckenbach was not caused solely by Matson. The relatively few post-OPA 90 cases addressing third party liability appear to support this argument.142 Despite this authority, some commentators warn that the lack of a coherent legislative history for OPA 90 has given courts the license to pursue “equitable results and deep pockets.”143 Under such a scenario, a court might hold Matson liable for at least some costs under a theory that the Hawaiian Pilot did play a significant role in the collision, and Matson is the only party still around with any ability to pay.144 In any event, liability is far from clear, and it is unlikely that Matson would step forward and volunteer to pay; if the Coast Guard wants money from Matson, it will have to get it via protracted and contentious cost recovery proceedings.145 These factors all suggest that the government will pay for the oil spill response and natural resource damages using the OSLTF, and these costs will not be reimbursed. 2. The Jacob Luckenbach’s Claim to Historical Significance At first glance, the wreck of the Jacob Luckenbach appears to be of little or no historical significance—after all, the ship was a run-of-the-mill freighter carry an unremarkable cargo and slipped into obscurity when she sank. Before its recent “discovery,” the wreck was not listed in the shipwreck database maintained by the National Marine Sanctuary program, even though it lies within the Gulf of the Farallones National Marine Sanctuary.146 Things changed shortly after the wreck was identified as the source of the mystery spills. The Sanctuary published the “Jacob Luckenbach History,” describing the wreck as one of the “his-

141

See Marine Board, supra note 28. See e.g., Commonwealth of P.R. v. M/V Emily S., 13 F. Supp.2d 147 (D.P.R. 1998)(holding that the tug company could be considered a responsible party despite the fact that oil spilled from the separately owned barge after it broke free of the tow because the barge was unmanned and under the complete control of the tug operator). 143 See e.g., John M. Woods, Third-Party Liability Under OPA 90: Have the Courts Veered Off Course?, 73 TUL. L. REV. 1863 (1999)(arguing that the tug company in the Berman spill was the only deep pocket that could possibly pay any portion of the millions in response costs and third party claims). 144 See id. 145 A final liability theory is state title under the ASA. Because of the wreck’s location approximately seventeen miles offshore, it falls well outside of state jurisdiction under the ASA. For the sake of argument, however, assume that the wreck was located within three miles of the coast. In that case, assuming that the wreck is abandoned, would the state be liable for the oil as a result of taking title to the wreck under the ASA or state law? Probably not. First, the stated purpose of the ASA was to provide recreational access and promote historic preservation, not pass liabilities to the states. In addition, California’s oil spill statute explicitly addressed this issue, stating that when the state takes title to a vessel because of abandonment, the state is not considered the “owner” for liability purposes; instead, the owner is the person who owned and operated the vessel prior to abandonment. 43 U.S.C. § 1312; CAL. PUB. RES. CODE § 6313; Legislative History, supra note 58; CAL. GOV'T CODE § 8670.3(1)(1)(C). 146 News Release, supra note 9. This suggests that the Sanctuary’s shipwreck program needs some improvement. 142

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toric shipwrecks” that are managed and protected by NOAA.147 The write-up cites the wreck as “a great example of a vessel built for transatlantic WWII troop and cargo transport” and states that it is a “window into our historic past.”148 While it is arguable whether or not the Jacob Luckenbach embodies “distinctive characteristics of a type, period, or method of construction,”149 by labeling the wreck as “historic,” NOAA probably pulled the historic preservation review trigger under § 106 of the NHPA. The original version of this Chapter, written before response operations began, identified this issue as a potential impediment to swift response operations. In fact, thanks to advanced, minimally invasive operational techniques employed, it appears that any historic preservation review requirements did not delay the response, and the response itself caused minimal damage to the wreck and the surrounding environment.150 Hopefully, the operation provided agencies with valuable information and lessons learned to help them develop better plans and procedures to address the problem of pollution from historic shipwrecks.

V. Observations and Recommendations The U.S.S. Arizona, Montebello, and Jacob Luckenbach are only three examples of the environmental risk posed by old shipwrecks; there are probably other wrecks off the U.S. coast that pose environmental threats as well, although the exact extent of the threat is unclear.151 Commenting on the Jacob Luckenbach incident, one West Coast marine archaeologist noted that “the problem with submerged archaeological resource management is that there is little known about what resources are out there and there is little money to manage what is known.”152 While the agencies involved in the Jacob Luckenbach operation should consider their recent operation to remove the oil from the wreck a “success;” in so many respects, the entire incident exposes a major gap in the pollution re147

History, supra note 27. Id. 149 36 C.F.R. § 60.60.4; Register Guidelines, supra note 76. 150 The actual operation used saturation divers to drill and then plug a series of tiny holes through the hull to test for oil. Once oil pockets were identified, divers located routes for the oil to escape. To remove the highly viscous oil, divers used a steam wand to heat the oil and then vacuumed it up to the barge on the surface. See Elliot, supra note 10. 151 Thanks to the search for the Luckenbach, the Coast Guard identified other wrecks that may pose pollution problems in the future. For example, there is a Navy hospital ship that was sunk in the 1950s with 8500 barrels of oil on board, and there is the stern section of the tanker Puerto Rican, which rests on the ocean floor more than 1400 feet deep and is slowly leaking oil. Puerto Rican Shipwreck Database entry, Channel Islands National Marine Sanctuary, at http://www.cinms.nos.noaa.gov/shipwreck/dbase/gfnms/ puertorican.html (last visited Mar. 21, 2002). 152 See e.g., Sue Vezeau, Santa Barbara Maritime Museum, Pacific Coast Maritime Archaeological Summary, at http://www.sbmm.org/pcmas.php (last visited Apr. 26, 2002). 148

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sponse planning and risk assessment process. Over the course of a decade, the single wreck inflicted serious damage to the coastal environment.153 In response, federal and state agencies embarked on a “wild goose chase” for years, blaming the spill on natural seepage or illegal operational discharges. It was only after years of expensive and time-consuming “dead ends” that the wreck was identified as the source.154 Then, it still took a multi-million dollar operation to remove the remaining oil. These general issues lead to some more specific conclusions and recommendations.

A. Liability for Pollution Response Although OPA 90 and state pollution laws generally hold former vessel owners strictly liable for pollution response costs and third party damages, it is a fair prediction that most if not all pollution response operations involving historic shipwrecks will be funded by the OSLTF and ultimately the U.S. taxpayers. A number of factors support this prediction. First, many wrecks will qualify for the “public vessel” or “act of war” exceptions. Second, commercial vessels that sank fifty to sixty years ago as the result of marine casualties are probably abandoned and, while the former owners of these vessels are technically liable for response costs and damages, cost recovery will prove extremely difficult or impossible. Many companies will have gone out of business, or will simply be unable to pay the staggering response costs and natural resource damages. Even if a responsible party is still around, costs will have to be recovered through hotly contested cost recovery proceedings.155 The Coast Guard and other agencies tasked with pollution planning and response must take a more proactive ap-

153

See O’Brien, supra note 27. In fact, the actual extent of the natural resource damages may be far greater than originally thought. Agencies are now testing oil samples from feathers collected as early as 1978, indicating that it is possible that the Luckenbach’s oil has caused environmental havoc for well over twenty years. In addition, the long-term effects of the oil-related wildlife mortalities remains unclear. The state plans to apply for funds from the OSLTF to assess and mitigate long-term seabird population declines. Elliot, supra note 10. 154 Vezeau, supra note 152. 155 In addition to the complete defenses available under OPA 90, some commentators have suggested a “laches” type defense for owners of old shipwrecks. See CMI Study of the Law of Wreck Removal, Comite Maritime International Yearbook Annuaire 1996, Antwerp I, 173-224, at 196. Under such a defense, a party could argue that the government’s failure to insist on removal actions at some earlier date, combined with the lapse of time and other intervening circumstances (e.g., changes in ownership or lines of business) cause undue prejudice to the responsible party. See BLACK’S LAW DICTIONARY 875 (6th ed. 1990). While there is no time bar under OPA 90, owners could cite to recent Supreme Court precedent expressing disfavor with retroactive legislation because it deprives citizens of legitimate expectations and upsets settled transactions. See Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (noting that retroactivity is generally disfavored under the law).

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proach to dealing with pollution from old shipwrecks. The situation is likely one where public financing will promote more timely remediation.156 Public financing has important consequences for these response operations. First, it will require agencies to plan their budgets and programs accordingly. In addition, it has important consequences for operations involving historic or potentially historic shipwrecks.

B. Historic Preservation & Environmental Response The historic preservation mandates that apply to shipwrecks lack consistent standards. The three most applicable mechanisms for determining historic value and promoting protection of historic shipwrecks—the ASA, the National Register of Historic Places, and the Marine Sanctuary Program—are either limited in scope, are applied inconsistently, or have proven to be somewhat ineffective.157 At the international level, the standards are even less helpful.158 OSCs and response agencies will need better guidance on what makes a wreck historic and deserving of special protection. Along with that need is the need for specific guidelines addressing the preservation of historic shipwrecks during environmental response operations.159 As previously discussed, the current NCP Programmatic Agreement provides a starting point, but it should be expanded to specifically address historic shipwreck issues.160 Fortunately, modern vessel salvage technology has progressed to the point where non-destructive “precision” operations can remove significant amounts of oil from wrecks without desecrating grave sites, causing unnecessary damage to wrecks, or disturbing the surrounding marine environment.161 These developments indicate that environmental salvage operations and historic preservation can in fact coexist, as long as proper planning and coordination take place before the “emergency” phase of an operation.

C. Programmatic & Legislative Recommendations A key issue going forward is what should be done to ensure that old, potentially historic and environmentally-hazardous shipwrecks are identified, studied, preserved, and “decontaminated” before another Luckenbach-like incident occurs. 156

See Boyd, supra note 136, at 8.2. Delgado, supra note 76; News Release, supra note 9. 158 As previously discussed, the new UCH Convention does not apply to the relatively modern historic shipwrecks discussed in this paper because of its one-hundred year applicability threshold. 159 Id. 160 The system that current supports the NCP Programmatic Agreement may work well for archaeological and other historic sites on land, but may not be realistic for shipwrecks located on the ocean floor. A revised Agreement will require a shift from viewing historic properties as “victims” of pollution to viewing them as a source of pollution. 161 See discussion of Blucher and Luckenbach operations, supra Part IV. 157

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Existing laws and regulations authorize the government to respond to these wrecks; however, they do not appear to encourage more proactive efforts. For environmental risks, the post-OPA 90 framework is optimized for situations where a responsible party is readily identifiable or where oil is in the water. In general, absent visible threats, agencies lack adequate incentives (and probably resources) to explore potential pollution risks. On the historic preservation front, existing authorities are limited in scope, are applied inconsistently, and appear, at least in some cases, to be flawed in execution. While the NCP Programmatic Agreement provides a helpful framework, it is currently optimized for land-based resources affected by pollution, not shipwrecks that are the source of pollution. Thus, there is a need for new policies or legislation to ensure that agencies identify, survey, prioritize, and respond to environmentally hazardous wrecks. This effort will require the dedication of public resources in a coordinated and efficient manner. In devising a policy-based or legislative solution, it is important to learn lessons from similar programs that have failed or experienced difficulties, usually because of inadequate funding and support.162 Some of the current challenges with historic shipwrecks are very similar to problems experienced with other programs: (1) shipwreck databases are incomplete;163 (2) former vessel owners will probably be either exempt from liability or will be unable to pay; and (3) absent a more coherent effort to identify and survey old wrecks, the system will continue to encourage response only when an actual spill occurs rather than promoting measures to identify and respond to risks in advance. Any new program needs adequate funding and mechanisms that, to the extent possible, take advantage of existing inter-agency infrastructures. Some specific recommendations follow:

162 The Coast Guard’s abandoned barge program is a good example. During the late 1980s, hundreds of barges were abandoned in rivers and harbors throughout the Gulf Coast region. Many barges contained oil or other pollutants, and others were used as dumping receptacles. The Coast Guard spent millions cleaning up pollution from these barges, and cost recovery efforts proved difficult if not impossible. In response, Congress passed the Abandoned Barge Act of 1992, making it illegal to abandon a barge and authorizing the Coast Guard to remove barges, hold owners responsible for such expenses, and assess civil penalties. The Coast Guard did not receive additional funding for these initiatives, however. In 1999, the Department of Transportation issued a scathing audit report on the Coast Guard’s abandoned barge program. The report concluded that the Coast Guard had managed the program ineffectively, noting that the inventory of abandoned barges was inaccurate and OSCs were not taking advantage of the OSLTF to clean up and remove barges. The report criticized the response-based mentality of many OSCs, noting that they acted only after barges started discharging pollutants into the water. The report concluded that this approach led to the inefficient use of OSLTF resources because operations to respond to and cleanup pollution from leaking barges cost far more than removing pollutants from the same barges before they started leaking. See Numbering of Undocumented Barges, 66 Fed. Reg. 2385 (proposed Jan. 11, 2001) (to be codified at 46 C.F.R. pt. 66); 46 U.S.C. § 4701, et seq.; Coast Guard, Abandoned Barge Program, at http://www.uscg.mil/hq/g-m/mor/articles/abandbar.htm (last visited Feb. 15, 2004). 163 Vezeau, supra note 152; News Release, supra note 9.

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(a) Awareness Agencies must acknowledge the problem. As discussed, there has been a tendency to ignore or downplay the environmental risks posed by old shipwrecks. The Jacob Luckenbach incident should change that. Agencies must harness the public and political interest generated by the Luckenbach spill to push for adequate funding and support to prevent similar incidents. (b) Inventory & Planning Experts have argued that we really do not know how many shipwrecks are out there and where they are located.164 Several existing databases or treatises list historic ships and shipwrecks. Most are maintained by agencies and private organizations, including the Marine Sanctuary program,165 the states, the Navy, maritime museums, non-profit organizations, and academic institutions.166 These existing databases tend to have a historical focus rather than an environmental protection focus, and are of little help in determining whether or not a wreck poses an environmental threat. Pollution response agencies need access to a single, accurate and tailored database that lists information about old shipwrecks that might pose environmental risks. Developing such a database will require a coordinated effort by many players, including the Coast Guard, NOAA, the National Park Service, the Navy, the Minerals Management Service, state environmental and historic preservation agencies, maritime museums, archaeologists, recreational divers, industry representatives, academics, and commercial salvors. Fortunately, existing mechanisms, such as the Area Contingency Plans, can serve as effective forums for this work. In addition, a revised NCP Programmatic Agreement could help spur the development of such a database and other pre-incident planning.167 (c) Wreck Surveys Identifying potentially dangerous wrecks is not enough; wrecks will need to be surveyed to get a better idea of the true risks involved—a process that promises to be time consuming, resource-intensive, and expensive.168 Fortunately, this process appears to be underway. Before the Luckenbach response operation began, NOAA announced that its Marine Sanctuary Program and National Ocean Service had begun a sixty-day “excursion” of West Coast Marine Sanctuaries

164

Id. See e.g., Channel Islands National Marine Sanctuary Shipwreck Database, at www.cinms.nos.noaa.gov/shipwreck/dbase/gfnms; California State Lands Commission, Shipwreck Database, at http://shipwrecks.slc.ca.gov/shipwrecks.database/shipwreck_ database.asp; Shomette, supra note 80. 166 Other sources include Vessels of the United States (1869 to present), Lloyd's Register; Brouwers International Register of Historic Ships; the Historic Ship Register of the International Congress of Maritime Museums; and shipwreck data collected by oil well and pipeline surveys conducted under the regulatory authority of the Minerals Management Service. See News Release, MMS Ensures Nation’s Historic Shipwrecks are Protected as Archaeologists Share U-Boat Discovery, at http://www.gomr.mms.gov/ homepg/whatsnew/newsreal/010615.html (last visited Feb. 15, 2004). 167 NCP PA, supra note 86. 168 The OSLTF is not available for planning purposes. However, funding might be available through the Historic Preservation Fund. See 16 U.S.C. § 470(h). 165

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entitled “Quest: West Coast Expedition 2002.”169 The expedition was to use a Navy-supplied ROV to provide monitoring and surveying capabilities “to investigate ship wrecks as cultural resources and for their potential impact on the marine environment.”170 This expedition was clearly a step in the right direction. (d) Response Operations Finally, inventory and survey data will help identify wrecks that will require oil removal operations. Factors to consider will vary— the amount of oil on board, the proximity of a wreck to environmentally sensitive areas, the likelihood of coastal impacts, and various logistical considerations. 171 Planning such operations will require bringing together the right players as part of the Unified Command172 to address funding, cost recovery, cultural and historic preservation, environmental sensitivity, salvage, and other related issues. The Coast Guard should do what is necessary to ensure that adequate emergency funds are available in the OSLTF to cover the costs associated with these operations.

VI. Conclusion Shipwrecks from the past now threaten the marine environment. While the extent of this threat is unknown, recent incidents suggest that the threat is real. Advanced underwater technology is now available to locate, identify, study, and remove oil and other pollutants from these wrecks, and in many cases, it can do so in ways that preserve the integrity of historic wreck sites. The key to effectively managing this emerging risk is to acknowledge the threat, provide necessary resources to identify and respond to specific threats, and utilize the existing interagency infrastructure to launch an effective government-led initiative to protect historic shipwrecks and the marine environment.

169 NOAA Explores Depths of its Five West Coast Marine Sanctuaries, NOAA News Online, at www.publicaffairs.noaa.gov/releases2002/APR02/Noaa0240.html (last visited Feb. 15, 2004). 170 Id. 171 Considerations encountered during the Luckenbach response included deep and cold water, marine growth on the hull, highly viscous oil, unusual fuel tank design, swift currents, sediment build-up, inaccurate ship drawings, and deteriorated cargo. Rick Fairbanks, Titan Receives Recognition for Oil Recovery in National Sanctuary, at http://www.cleanupoil.com/CaseStory.htm (last visited Mar. 3, 2003). 172 See 40 C.F.R. § 300 (describing the Unified Command response management structure).

CHAPTER 11

Managing Foreign Access to Marine Genetic Materials: Moving from Capture to Cooperation Richard J. McLaughlin

I. Introduction Scientific and commercial interest in marine genetic resources as sources of drugs and other biotechnological uses is growing rapidly.1 However, one of the primary deterrents to future development is the lack of predictable and effective international and domestic legal rules governing ownership of these resources.2 As a consequence of restrictions imposed under the Convention on Biological Diversity (CBD), researchers are no longer able to take genetic resources out of

1

See infra notes 12-19 and accompanying text. This chapter draws in substantial part on an article by Professor McLauglin appearing in 34 OCEAN DEV. & INT’L L. 297348 (2003). 2 National Academy of Sciences, infra note 13, at 76; Karen Y. Kreeger, Denizens of the Deep, THE SCIENTIST (April 1, 1996) at 1, 8-9 (discussing unsettled legal issues regarding foreign access to marine genetic resources and ownership of the results of drug discovery efforts that have caused some U.S.-based pharmaceutical companies to refuse to screen samples collected outside of U.S. waters.) 257 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 257-81. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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nations without restriction.3 Instead, as more nations, especially developing nations, enact domestic legislation exerting control over genetic resources and enter into legally binding partnerships with outside entities, there is growing likelihood that tensions and disputes between nations that share common pools of marine genetic resources will escalate.4 It is this study’s contention that the growing uncoordinated patchwork of national plans and laws providing access rights to genetic resources conditioned on the sharing of benefits, coupled with an increasingly effective international system of intellectual property right protections create a legal environment that is inequitable, economically and biologically inefficient, and ripe for international discord.5 Neighboring countries that share the same pool of genetic resources, but are not parties to a specific access agreement, may be deprived of any future value should a commercial product be derived from that resource and protected by international patent. Moreover, the current regime undermines efforts articulated by the Council of Parties of the CBD that call for an ecosystem approach to be the primary framework of the Convention6 as well as its establishment of a Global Taxonomy Initiative (GTI) to meet the global objectives of the CBD.7 3

See infra notes 20-28 for a full discussion of the CBD. When one pharmaceutical company executive was asked whether most companies in his industry accessed genetic resources through contracts with source nations he replied: Well, usually access has not been through contract. It has been through less formal arrangements with parties in a “source” country. One of the greatest values of the Convention [CBD] despite all the criticism that has been voiced is that the information costs for the developing world have gone way down. Everybody knows that biodiversity has value; whereas five years ago some companies could have much more easily walked into a country, paid some local people to collect whatever plants or other resources they wanted, and left. The point I want to make is that while there have been some contracts in the past, in the future, both contracts and permission from Government Ministries of Environment will be required. Roundtable Discussion, 28 VAND. J. TRANSNAT’L L. 835, 844 (1995) (comments of Edgar J. Asebey, CEO and President of Andes Pharmaceuticals, Inc.). 4 For a useful collection of case studies illustrating how genetic resources access agreements are being implemented, see ENVIRONMENTAL POLICY STUDIES WORKSHOP, COLUMBIA UNIVERSITY SCHOOL OF INTERNATIONAL AND PUBLIC AFFAIRS, ACCESS TO GENETIC RESOURCES: AN EVALUATION OF THE DEVELOPMENT AND IMPLEMENTATION OF RECENT REGULATION AND ACCESS AGREEMENTS, (Environmental Policy Studies Working Paper #4 1999). 5 See infra notes 29-95 and accompanying text. 6 At its second meeting, held in Jakarta, Indonesia in November 1995, the COP adopted the ecosystem approach as the primary framework for action under the Convention. For a comprehensive report on how the ecosystem approach should be implemented, see Secretariat of the Convention on Biological Diversity, Report Of the Liaison Group Meeting On Ecosystem Approach, Paris, September 15-17, 1999, available at http://www/biodiv.org/doc/meetings/esa/lgesa-01/official/lgesa. See also infra notes 9195 and accompanying text. 7 Taxonomy addresses fundamental questions such as the kinds of organisms that exist, their number, how they are related to each other, where they occur, and then allocates names to them in a systematic manner. The COP at the Second Meeting of the Conference of Parties in Jakarta, Indonesia identified the lack of taxonomists and taxonomic

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Today’s regulatory regime governing access to marine genetic resources is founded upon outdated and ineffectual notions developed under the traditional rule of capture.8 Under rule of capture precepts, property owners have an equal opportunity to capture natural resources that cross onto their property and ownership is awarded to the first party to reduce the resource to its dominion and control.9 The obvious policy incentive under a rule of capture approach is to rapidly exploit the resource before it can be exploited by a neighbor. In its place, this study advocates an alternative regulatory model that is similar, in many respects, to the more cooperative approaches used to manage transboundary fugacious resources such as liquid oil and gas and international water resources.10 A cooperative model recognizes that common pool resources, including marine genetic resources, are better managed through cooperation between co-owners than competition by capture. It suggests that the proposed regulatory model be initially limited to marine genetic resources rather than terrestrial. A number of features unique to the marine environment make it especially suitable for the cooperative model suggested in this study. These features include the following: (1) organisms in marine areas are generally publicly rather than privately owned. Public ownership eliminates many of the domestic legal problems that likely occur when governmental action impinges on the rights of private property owners; (2) ocean space is used primarily as a source of marketable commodities rather than a permanent place for human habitation thereby eliminating many of the legal and political problems associated with long-standing occupancy rights; (3) the international community has historically relied more heavily on cooperative management techniques in the ocean than on land; and (4) unlike terrestrial areas, there is much less likelihood that indigenous peoples traditional knowledge will be utilized thereby eliminating many of the thorny issues relating to intellectual property right compensation. Regional or ecosystem-based cooperative management approaches are advocated as a better method of equitably and efficiently exploiting marine genetic resources.11

II. Background The worlds storehouse of biological diversity has provided natural product chemists an invaluable source of information for the development of new pharmaceuticals, agrochemicals, and industrial or biomedical agents. Of the twentyinformation as a significant impediment to the implementation of the Convention at the national level and created the Global Taxonomy Initiative in response. See generally Second Meeting of the Subsidiary Body on Scientific, Technical and Technological Advice, Practical Approaches For Capacity Building For Taxonomy, July 19, 1996, UNEP/CBD/SBSTTA/2/5, available at http://www.biodiv.org/doc/meeting.asp?wg= SBSTTA-02. See also infra notes 91-95 and accompanying text. 8 See infra notes 43-58 and accompanying text. 9 See infra notes 46-49 and accompanying text. 10 See infra notes 59-87 and accompanying text. 11 See infra notes 96-104 and accompanying text.

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five top selling drugs in the world, seven, with combined sales of $11.6 billion, were derived from naturally occurring genetic sources.12 Fifty percent of all drugs marketed today are either extracted directly from natural sources or synthesized from natural product source material or templates.13 Additional major discoveries are guaranteed given the fact that fewer than five percent of the worlds plant and marine species have even been superficially screened for potential medicinal or other uses.14 Although less well known than terrestrial species, marine organisms have been recognized as having an especially high probability of yielding useful natural products.15 Diverse groups of archaea, fungi, algae, sponges and marine microorganisms have all emerged as having unique potential for pharmaceuticals and other novel uses.16 A significant percentage of global genetic resources,17 both marine and terrestrial, of interest to researchers are located in tropical regions and fall within the jurisdictional control of developing nations.18 Governments, development agencies, and nongovernmental organizations are increasingly interested in using benefits from access to genetic resources as an aid to economic development and as a tool to extract compensation for conservation of biodiversity. 12

Andrew Pollack, Patenting Life: A Special Report: Biological Products Raise Genetic Ownership Issues, N.Y. TIMES, November 26, 1999, at A1. See also F. Grifo et al, The Origins of Prescription Drugs, in BIODIVERSITY AND HUMAN HEALTH (F. Grifo and J. Rosenthal eds., 1997) (estimating that 85 out of the top selling 150 drugs in 1993 either contained one compound or were derived or patterned after compounds found in nature.) 13 NATIONAL ACADEMY OF SCIENCES, FROM MONSOONS TO MICROBES: UNDERSTANDING THE OCEAN’S ROLE IN HUMAN HEALTH, at 73, available at http://www.nap.edu/ openbook/o309065690/html. Another study estimates that of all drugs known to mankind, roughly four-fifths are derived from natural sources. EDWARD O. WILSON, THE DIVERSITY OF LIFE 283 (1992). 14 LYLE GLOWKA ET AL., BEST PRACTICES FOR ACCESS TO GENETIC RESOURCES, INFORMATION PAPER COMMISSIONED BY DG XI, EUROPEAN COMMISSION AND THE GERMAN FEDERAL MINISTRY OF THE ENVIRONMENT, NATURE CONSERVATION AND NUCLEAR SAFETY (1998). 15 Kusahal Qanungo, Time for a New Deal on Marine Bioprospecting, SCIDEV.NET, available at http://www.scidev.net (claiming that the probability of discovering a drug from marine sources is approximately a thousand times more than from terrestrial ones) (accessed 3/5/2002); Gabriele M. Konig and Anthony D. Wright, Marine Natural Products Research: Current Directions and Future Potential, 62 PLANTA MEDICA 193-211, 208 (stating that “marine natural sources have the highest probability of yielding natural products with unprecedented carbon skeletons and interesting biological activity.”). 16 See generally NATIONAL ACADEMY OF SCIENCES, supra note 13 at 71-82; and Konig and Wright, supra note 15, at 193-211. 17 For purposes of this study genetic resources means genetic material of actual or potential value. Genetic material means any material of plant, animal, microbial, or other origin containing functional units of heredity. These definitions are the same as those contained in Article 2 of the Convention on Biological Diversity, see infra note 20. 18 While potentially valuable marine species live in all ocean environments, areas of high biodiversity and competition among organisms, such as coral reefs, are especially good sources of new drug leads. Most coral reefs fall within the jurisdictions of developing nations.

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Opportunities for source countries to receive revenue or other benefits from commercial uses of genetic resources are a relatively recent phenomenon. Historically, nations controlled access to natural resources such as timber, fish, or rubber through direct government regulation or legal rules protecting private property rights because these raw substances were viewed as having immediate value in the international marketplace. In contrast, because information contained in genetic resources had neither immediate value nor clear legal status as property, access was not controlled. As more of this genetic information was transformed into commercially valuable drugs and other uses, it became apparent to many governments that some international legal mechanism needed to be created that recognizes the rights of sovereign nations to control access to genetic resources within their territories and to equitably share in benefits derived from their use.19 Formal international recognition of source country control over genetic resources was achieved in 1993 with the entry into force of the Convention on Biological Diversity (CBD).20 The CBD describes three distinct, but interrelated, objectives that include conservation, sustainable use, and equitable benefit sharing: The objectives of this Convention . . . are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including the appropriate access to genetic resources and by appropriate transfer of relevant technologies. . . .21

The legal and policy implications of the CBD and its role in controlling access to genetic resources have generated a mountain of scholarly research and commentary.22 Most of these studies have examined the issue within the framework of equity between genetic source nations, primarily located in the south, and genetic user nations, primarily located in the north.23 This analytical framework is understandable given the CBDs origins as one of a number of agree-

19

See generally Lyle Glowka, A Guide To Designing Legal Frameworks To Determine Access To Genetic Resources, Environmental Policy and Law Paper No. 34, IUCNThe World Conservation Union Environmental Law Center (1998). 20 Convention on Biological Diversity, June 5, 1992, U.N. Doc. DPI/130/7 (1992), S. TREATY DOC. 20, 103d Cong. 1st Sess. (1993), 31 I.L.M. 818 (entered into force Dec. 29, 1993) (187 nations are States Parties as of June 2003); the United States has signed but not ratified the Convention). 21 Id., at art. 1. 22 A recent Westlaw search found 234 law review articles in which some aspect of the CBD and access to genetic resources was discussed. See Stephen Polasky, Biodiversity Bibliography: Ecology, Economy and Policy, at http://www.apec.umn.edu/faculty/ spolasky/Biobib.html (providing a thorough, if somewhat dated, summary of the literature). 23 John Ntambirweki, Biotechnology and International Law Within the North South Context, 14 TRANSNAT’L L. 103, 107 (2001).

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ments emanating from the 1992 United Nations Conference on Environment and Development (UNCED).24 The overriding interest of developing nations during the negotiations of the CBD was to assert sovereignty over genetic resources and to prevent the Convention from being used to compel developing nations to conserve, at their own expense, biodiversity for international benefit.25 Given the impetus of the CBD as an instrument that seeks to redefine existing benefit flows between developed and developing nations it is not surprising that user-source relations (relations between nations that supply genetic materials and nations that use the materials) rather than intra-source relations (relations between nations that share a common source of genetic materials) have received the lions share of scholarly attention.26 There is one example of a regional regime on access to genetic resources.27 Nevertheless, little, if any, research has been focused on exploring how international legal rights and obligations should be allocated between nations that share ownership of common pools of genetic resources nor on the problems and inequities that may occur as nations compete to exploit transboundary or shared genetic resources.28 24 The principle of sustainable development which embodies the tension between protecting the environment and promoting economic development was the driving force to emerge from the UNCED negotiations. The precarious balance between north and south that was achieved is readily apparent in Principle 1 of the Rio Declaration, which states that “[h]uman beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, June 13, 1992, U.N. Doc. A/CONF.151/26 (1992), 31 I.L.M. 874. 25 W. LESSER, SUSTAINABLE USE OF GENETIC RESOURCES UNDER THE CONVENTION ON BIOLOGICAL DIVERSITY: EXPLORING ACCESS AND BENEFIT SHARING 4 (1998). 26 Those few studies that address the possibility of some form of cooperative action by source nations generally frame their arguments within the context of using such concerted action as a method of increasing leverage in negotiations with users from developed nations not as methods of improving equity or efficiency among the developing source nations. See Edgar J. Asebey and Jill D. Kempenaar, Biodiversity Prospecting: Fulfilling the Mandate of the Biodiversity Convention, 28 VAND. J. TRANSNAT’L L. 703, 738 (1995) and the sources cited therein. See also Joseph Henry Vogel, The Successful Use of Economic Instruments for Foster Sustainable Use of Biodiversity: Six Case Studies from Latin America and the Caribbean. Case Study 6: Bioprospecting, 2 BIOPOLICY J. Paper 5 (PY97005) (1997) at http://www.bdt.org/bioline/py 27 The Andean Pact Common Regime on Access to Genetic Materials was established in 1996 to regulate access to the genetic resources of Bolivia, Columbia, Ecuador, Peru and Venezuela. There is no specific provision relating to marine genetic resources in the instrument. See Glowka, supra note 19, at 26, 46. 28 Experience has shown the international community incapable of precisely defining the term “transboundary” or “shared” resources. See NICO SCHRIJVER, SOVEREIGNTY OVER NATURAL RESOURCES 131-32 (1997). See also Alberto Szekely, The International Law of Submarine Transboundary Hydrocarbon Resources: Legal Limits to Behavior and Experiences for the Gulf of Mexico, 26 NAT. RESOURCES J. 733, 735-36 (1986) (arguing that the term “shared” resource should only be used to describe physical or ecological phenomenon and that “transboundary” is the only term that adequately reflects the sovereignty a State has over its resources. This study need not engage in this legalistic debate and instead needs only to descriptively define the terms. For our purposes, the term

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III. Distinguishing Genetic Resources from Other Types of Natural Resources Genetic resources, in keeping with many other living natural resources, do not confine themselves within discrete political boundaries. Instead, they exist throughout biological ranges that sometimes overlap a number of terrestrial or marine political boundaries.29 In this regard they are similar to other types of shared natural resources such as timber located in transboundary forests or transboundary stocks of marine fish. We have long recognized that the exploitation of resources by one nation may have damaging impacts on other nations that share the same resource. For example, the over harvesting of fish stocks in one nation’s EEZ or on the high seas may have an adverse effect on recruitment and catch levels of fish in an adjacent nation’s EEZ.30 The international community has attempted to resolve this problem through conventional and customary rules that encourage cooperation with other affected users or seek to impose legal liability under the well known and often used doctrine of sic utere31 Despite these international legal constraints, there are histori“transboundary” resource is intended to specifically mean a natural resource that is physically located in one contiguous unit on both sides of a boundary between two or more nations or owners of that resource. The term “shared” resource is intended as a slightly broader term that includes a resource that exists in two or more nations and is part of a shared ecosystem or other management unit, but not necessarily in a contiguous unit or common pool physically straddling a boundary. Unless it is necessary to clarify the meaning of a particular passage in the text, the term “transboundary” will be used to denote either “transboundary” or “shared” resources. It should also be noted that “transboundary” or “shared” resources are to be distinguished from “common natural resources.” Common resources are resources in which no State or group of States holds an exclusive title and all States have the right to exploit. Examples include fisheries resources of the high seas and mineral resources of Antarctica. 29 ELLIOT NORSE, GLOBAL MARINE BIOLOGICAL DIVERSITY 42 (1993) (because of the buoyancy, viscosity, and other physical and chemical characteristics of seawater, marine organisms tend to have larger ranges than land organisms). 30 Moritaka Hayashi, The Role of the United Nations in Managing the World’s Fisheries, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 374-76 (Gerald Blake, et al., eds., 1995) (describing how a number of shared or “straddling” stocks of fish around the world have been seriously damaged as a result of over-harvesting). 31 Sic utere tuo ut alienum non laedas requires that states refrain from acts that would cause injury to persons or property located in the territory of another state or beyond national jurisdiction. It has been explicitly recognized in the context of transboundary environmental harm in Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF. 48/14/Rev. 1, at 3 (1973), 11 I.L.M. 1416 (“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”). The doctrine is universally recognized as a customary norm of international law. See ALEXANDRE KISS AND DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 105-07 (1991); LAKSHMAN GURUSWAMY ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND WORLD ORDER 348 (2d ed. 1999).

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cal examples of shared natural resources being decimated by over-harvesting such as the destruction of certain whale stocks during the 19th and early 20th centuries.32 However, it is rare indeed, to find an example in which the exploitative actions of one nation, operating within its own juridical boundaries, so severely damages a shared living resource so as to entirely prevent another nation from developing its own portion of that shared resource. It is the ability of one nation to potentially destroy essentially all of the value of a resource that distinguishes access to genetic resources from the traditional model. Natural resources such as timber and fish are exploited for their own physical properties as lumber or food. In other words, they are merely chattels to be bought or sold in the international marketplace. Conversely, the asset of value in regards to genetic resources is not the physical substance itself, but the genetic information contained in that substance. Without further technological manipulation the resource has little or no value aside from its intrinsic value as a continuing source of biodiversity.33 Prior to the CBD, this informational value could not be captured by the source nation. Today, as a result of the treaty and global protections of intellectual property rights, commercial substances derived from genetic materials may be patented and therefore protected from exploitation by others for a period of many years. International protection of IPR has been dramatically strengthened as a result of the Trade Related Aspects of Intellectual Property Agreement (TRIPs) negotiated under the auspices of the World Trade Organization.34 As a result of the uniform minimum standards mandated by TRIPs, it is highly likely that patents on pharmaceuticals and other commercial products derived from

32 As early as 1928, Lewis Radcliffe, Deputy Commissioner of the U.S. Bureau of Fisheries reported that “At no stage in the history of whale fisheries, have whales been so harassed in so many parts of the globe. . . . Than any one who has made even a casual study of the history of the whale fisheries of the globe can honestly advance the thought that there has been little or no diminution in the number of whales in the waters of the globe, seems little short of absurdity. That the whale supply will long stand up under the losses in numbers of 18,000 whales or more killed a year, seems extremely doubtful.” Kristen M. Fletcher, The International Whaling Regime and U.S. Foreign Policy, in THE ENVIRONMENT, INTERNATIONAL RELATIONS, AND U.S. FOREIGN POLICY 219 (Paul G. Harris ed., 2001). 33 This statement should in no fashion be construed as minimizing the intrinsic value of preserving global biodiversity. No value can be attached to the contribution that biological diversity plays in creating the life support system and aesthetic/spiritual milieu that we all depend upon for our survival. Norse, supra note 29, at 9-36 (describing the economic and non-economic importance of marine biological diversity.) Moreover, recent research has highlighted the uncompensated value provided by “ecosystem services” such as purifying air and water, detoxifying and decomposing waste, renewing soil fertility, regulating climate, mitigating droughts and floods, controlling pests, and pollinating plants. See James Salzman, Barton H. Thompson, Jr., and Gretchen C. Daily, Protecting Ecosystem Services: Science, Economics, Policy, 20 STAN. ENVTL. L.J. 309 (2001) 34 General Agreement on Tariffs and Trade Multilateral Trade Negotiations (The Uruguay Round): Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, Dec. 15, 1993, 33 I.L.M. 81 [hereinafter TRIPs]

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marine genetic resources will be enforced throughout the world.35 In other words, holders of a particular patent will be assured the exclusive right to market or license a product without fear of counterfeit or competing producers in other nations. Moreover, CBD defers to the overriding authority of TRIPs and recognizes the later Convention’s IPR standards absent a serious threat to the environment or biological diversity.36 The monopoly position provided by TRIPs to patent holders will, in turn, supply exclusive benefits to the nation whose marine genetic resources were used in producing the product. Material Transfer Agreements (MTA) that exchange access to marine genetic resources for future royalties, technology transfer, and other benefits effectively foreclose other nations that share those marine genetic resources from gaining future value. For example, prior to TRIPs, pharmaceuticals derived from marine genetic resources could be reverse-engineered37 and the counterfeit products marketed in those nations that did not recognize the original patent. Once TRIPs is fully implemented in 2005, source nations and patent holders will be able to monopolize all or essentially all of the value of a product derived from marine genetic resources included in an MTA. In economic terms, genetic resources are becoming more rival. More precisely, the exploitation of marine genetic resources is viewed as common pool, which is partly excludable and rival. In this regard they are akin to international freshwater resources. In contrast to open-access commons, such as high seas fisheries, non-source nations of the marine genetic resource have no access to the resource and cannot benefit from them directly. Their benefits are also rival, because any genetic material that is commercialized and protected by IPR reduces the value available to other source nations.38 For all practical purposes, neighboring nations that share the same genetic resource, but are not parties to a specific access agreement, will be deprived of receiving any future value should a commercial product be derived from that resource and subsequently protected by international patent. Moreover, in most instances, the neighboring countries may also be prevented from sharing any of the up front benefits such as technology transfer, training, or taxonomic data.39 35 Anything resembling an accurate prediction of how individual provisions of TRIPs will be interpreted and implemented awaits years of State practice and dispute settlement rulings. J.H. Reichman, Universal Minimum Standards of Intellectual Protection Under the TRIPs Component of the WTO Agreement, 29 INT’L LAW. 345, 385-88 (1995) (describing uncertainties associated with the dispute settlement process). However, it is irrefutable that the overall effect of TRIPs will be to significantly and meaningfully strengthen the international IPR regime. 36 Supra note 20, at CBD Article 22 (nothing will affect “rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.”) 37 Reverse-engineering refers to the process of taking a product apart to figure out how it works so it can be copied. 38 See Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AM. J. INT’L L. 384, 388 (1996) (describing international water resources as common-pool resources, which are partially excludable and rival, and why they need to be managed collectively.) 39 See discussion infra notes 90-95 and accompanying text.

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IV. Why Genetic Resources Resemble Fugacious Resources The unique characteristics associated with commercializing genetic materials, in many ways resemble those of so-called fugacious resources such as liquid oil and gas, water resources or migratory wild animals. Unlike most natural resources, fugacious resources may exist in one nation one day, but migrate to another nation the next. For example, one nation may pump a transboundary pool of oil causing the oil to migrate across the boundary and thereby deprive the co-owning nation of its potential share of the resource. Similarly, one upstream nation may divert an international river so as to deny a downstream nation of any of the flow. The danger associated with exploiting fugacious resources rests in the power that one nation possesses to deprive another nation of all or essentially all of the commercial value of that common pool resource. When one nation shares genetic resources with other nations, yet unilaterally allows foreign access within its territory in return for benefits derived from the commercialization of genetic information, it does not cause the physical migration or loss of that genetic material, but it may cause the loss of all or essentially all of the commercial value associated with that resource.40 Consequently, genetic resources may be termed quasi-fugacious resources for purposes of this study. This analogy between quasi-fugacious genetic resources and fugacious oil and gas resources may be further illuminated by the following two-part hypothetical example.

V. A Hypothetical in Two Parts A. An Old Fashioned Fight Over Transboundary Oil The developing nations of West Coralia and East Coralia are neighbors and share a large offshore hydrocarbon deposit. Approximately twenty percent of the transboundary oil and gas field is located within West Coralia’s juridical waters and eighty percent in East Coralia’s. The deposit contains petroleum that is especially valuable due to its low sulphur content, low viscosity, and accessible location. Universal Oil Corporation (UOC), recognizes the potential value of the submarine field and approaches East Coralia for a concession to drill for oil and gas. Negotiations break down when the two sides fail to agree on appropriate royalty payments and environmental protection guarantees. Undeterred, UOC quickly negotiates a petroleum access agreement with West Coralia on more acceptable terms. Within two years, several dozen oil rigs are producing oil from the West Coralian side of the transboundary pool. Some of these rigs are located less than two hundred meters from the boundary line between West and East Coralia. Fearing that drilling operations are quickly depleting its share of the common resource and that it will soon be left with nothing, East Coralia demands 40

See supra notes 29-39 and accompanying text.

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that West Coralia order UOC to cease production and that UOC renew negotiations over drilling in East Coralia. West Coralia refuses, asserting that it has a sovereign right under international law to exploit natural resources within its territorial boundaries. Shortly after this rebuff, East Coralia contacts a rival oil company and grants it an oil and gas concession. It authorizes the company to drill as many wells as possible to capture as much of the transboundary pool as it can before West Coralia does likewise. As a result of excessively rapid production, overlyconcentrated well spacing, and the improper venting of gas on both sides of the border, pressure within the reservoir is quickly depleted. Within three years production is reduced to a small fraction of its peak. Expensive artificial lifting equipment is installed, but it soon becomes evident to both nations that the field has played itself out many years earlier than expected. The rush to capture transboundary oil results in severe waste and the premature destruction of the resource. Moreover, the race to exploit causes significant environmental damage that could have been avoided.

B. A Future Fight Over Transboundary Marine Genetic Resources The developing nations of West Coralia and East Coralia are neighbors and share the third longest barrier reef in the world. Twenty percent of the reef is located in West Coralias juridical waters and eighty percent in East Coralia’s. The reefs wide and luxurious array of coral reef types sustains exceptionally high biodiversity. Recognizing the biological richness of the reef ecosystem, especially the wide variety of sponge species, Universal Pharmaceutical Corporation (UPC) approaches East Coralia seeking permission to harvest marine organisms for purposes of drug development. UPC believes that some of these sponges have potentially potent chemical structures that may serve as effective anti-cancer and anti-viral agents. Lacking any marine bioaccess legislation or the means to monitor or manage such ocean uses, East Coralia declines UPCs overtures. Undeterred, UPC quickly negotiates a genetic material access agreement with neighboring West Coralia. In reaching its genetic access agreement with West Coralia, UPC is sensitive to the principles embodied in the Convention on Biological Diversity, which calls for the fair and equitable sharing of benefits between those countries controlling genetic resources and those possessing the technology to commercialize those materials. Consequently, it agrees to provide laboratory equipment and training to the West Coralian Government. Under the agreement, small fist-sized samples of sponges and other invertebrates will be collected and screened to identify compounds with potential pharmacological applications. Initial extraction and screening will be conducted in a small UPC financed laboratory in West Coralia by local personnel under the supervision of corporation technicians. Additional testing will take place at UPC laboratories in Europe and the United States. Should UPC secure any patents or commercialize any discovery resulting directly from the agreement, it agrees to share ten percent of the proceeds with West Coralia.

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During the second year of its five-year agreement a discovery of immense importance occurs when UPC identifies a potently active agent within one subspecies of sponge. From this initial finding, researchers successfully synthesize additional analogues that have powerful anti-cancer and anti-viral properties. Preliminary clinical trials are very promising and some pharmaceutical industry analysts predict that the new drug could someday produce a billion dollars or more in revenue to UPC. West Coralia’s estimated share of this revenue could someday represent nearly thirty percent of its annual operating budget. After learning of UPC’s preliminary findings, East Coralia approaches West Coralia to request that its scientists be allowed to participate in the testing program and that it be granted a share of any proceeds from commercialization of the genetic material. It points out that eighty percent of the reef and many of the most biologically productive sponge beds are located within its jurisdiction. It asserts that the reason it declined in the first instance to allow UPC to harvest the sponge was because of its concern over the continued health of the barrier reef ecosystem, including that portion located in West Coralia. West Coralia refuses, asserting that it has a sovereign right under international law to exploit natural resources within its territorial boundaries. Shortly after this rebuff, East Coralia contacts UPC directly and tries to renew negotiations for access to marine organisms on its portion of the barrier reef. UPC declines East Coralia’s offer by pointing out that it has already invested a significant amount of financial and human resources in West Coralia and sees no reason to expand its operations or duplicate its efforts. It has access to all of the genetic material that it needs from West Coralia’s portion of the reef. In addition, it has already taken out international patents on its extraction method, patents on the processes connected to the synthetic analogues, and patents on the use of the product. Feeling that its patents are enforceable in the largest global drug markets of North America and Europe and increasingly protected in the developing world as a result of the Trade Related Intellectual Property Rights (TRIPs) agreement, it sees no purpose in entering into an agreement with East Coralia. Feeling that West Coralia and UPC will receive all of the financial benefits associated with information relating to marine organisms on the barrier reef, East Coralia acts quickly to establish a crash governmental program aimed at collecting as many samples of marine organisms from its portion of the reef as possible. It accomplishes this by paying local divers and fishermen to collect samples and to bring them to government facilities where they are inventoried and stored for future use. Agreements can then be negotiated with universities and pharmaceutical companies to test the samples in return for a share of any proceeds from commercialization. However, because so little planning or organization went into the program, large numbers of duplicate samples, including some rare and endangered species, are collected and few contain accurate environmental or taxonomic data of value to researchers. Moreover, storage and handling proves to be far from adequate and many samples are ultimately thrown out as unusable. In the end, East Coralia receives no compensation from the genetic resources located on its reef. The rush to exploit a transboundary resource once again results in waste, inequity, and environmental degradation.

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VI. Distinguishing the Hypothetical Examples— Capture versus Cooperation The first hypothetical fact pattern presents a scenario, albeit in a somewhat contrived fashion, that is similar to many that have already occurred on the global stage.41 The second hypothetical waits to be played out in response to the future discovery of the next new blockbuster drug derived from marine genetic material.42 Both illustrate the consequences of relying on the so-called rule of capture to allocate transboundary resources. Under the rule of capture, ownership of natural resources coming from a common source of supply is recognized once it has been reduced to dominion and control. This right of ownership is absolute even for fugacious resources like oil and gas that have been captured after migrating across an established private or international boundary.43 Serious problems of inefficiency and inequity have long been recognized in regard to employing the rule of capture in governing the exploitation of liquid oil deposits and other fugacious resources.44 Yet, the rule of capture remains the fundamental method of allocating ownership of transboundary genetic materials.45 The following sections examine how the rule of capture has been modified for the exploitation of transboundary oil and gas resources as well as international watercourses and explores how these changes in the law would also be of benefit in the utilization of marine genetic resources.

A. Rule of Capture and Common Deposits of Oil and Gas The rule of capture arose in the late 19th Century as U.S. Courts tried to wrestle with ownership issues involving oil and gas production from pools underlying the lands of two or more owners. More specifically, these early Courts realized that if they were to enjoin owner A from taking oil because she might take some of owner B’s oil, that they may also have to enjoin B at the suit of A. Moreover, if they did this in all suits, much of the oil would remain in the ground and of little benefit to either of the owners or the public at large.46 In searching for useful analogies to assist them in reaching a just decision, courts treated the law of 41

MASAHIRO MIYOSHI, THE JOINT DEVELOPMENT OF OFFSHORE OIL AND GAS IN RELATION TO MARITIME BOUNDARY DELIMITATION 7-37 (International Boundaries Research Unit, Maritime Briefing No. 5, 1999) (providing more than a dozen examples of nations that co-own transboundary oil and gas deposits developing joint development agreements). 42 For a discussion of how this discovery process may occur see generally, DRUGS FROM THE SEA (N. Fusetani ed., 2000); Pushkar N. Kaul, Drug Discovery: Past, Present and Future, in 50 PROGRESS IN DRUG DISCOVERY 25-33 (J. Jucker ed., 1998); Konig & Wright, supra note 5. 43 For a useful discussion of the history and application of the rule of capture, see EUGENE KUNTZ, 1 A TREATISE ON THE LAW OF OIL AND GAS 111-119 (1987). 44 See discussion infra notes 46-69 and accompanying text. 45 See discussion infra notes 88-90 and accompanying text. 46 Walter L. Summers, The Modern Theory and Practical Application of statutes for the Conservation of Oil and Gas, 13 TUL. L. REV. 1, 8 (1938.)

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animals ferae naturae to be relevant because of the fugitive nature of both resources.47 Just as adjoining property owners have an equal opportunity to capture wild animals that cross onto their respective properties, so should co-owners of a transboundary fugacious resource such as oil and gas.48 The obvious danger posed by the rule of capture and illustrated by the hypothetical examples above, is that it provides one co-owner with an incentive to quickly and wastefully exploit the resource to the detriment and destruction of the rights of the other coowners.49 For at least one hundred years, the United States and many other nations have recognized the dangers of allowing one owner of a shared fugacious resource to absolutely own the substance once it has been reduced to dominion and control.50 As early as 1900, the United States Supreme Court in Ohio Oil Co. v. Indiana, found that co-owners of a common oil and gas pool have “coequal” or correlative rights to extract the common resource and that local governments have authority to enact conservation legislation designed to secure a “just distribution” and to prevent one proprietor from obtaining an “undue proportion.”51 47 Most first year law students in the United States are intimately familiar with the rule of capture because many of the leading property law texts include excerpts from the seminal rule of capture case, Pierson v. Post, Sup. Ct. N.Y. 1805, 3 Cai. R. 175, 2 Am. Dec. 264 (holding that a hunter who was pursuing a fox had no property right in that fox until it was brought under his possession or control). 48 According to Kuntz, “The law of capture should be recognized for what it is, a rule of convenience and necessity used to strike a balance between protecting rights in oil and gas in place while preserving to another the fruits of his industry. Supra note 43, at 115. 49 R. O. Kellam, A Century of Correlative Rights, 12 BAYLOR L. REV. 1, 42 (“the convenient rule of capture was allowed to gain full head. Gross waste and inequity were its monuments.”). An especially graphic example of abusive behavior under the rule of capture is related in CARL COKE RISTER, OIL! TITAN OF THE SOUTHWEST 92 (1949) (describing an Oklahoma refinery which rapidly drained the oil beneath its own small lease of ten acres, as well as the oil under its neighbor’s land.) See also Jacqueline Lang Weaver, The Federal Government As A Useful Enemy: Perspectives On The Bush Energy/Environmental Agenda from the Texas Oil Fields, 19 PACE ENVTL L. REV. 1 (providing a very interesting and useful description of the dangers of the rule of capture as it has been applied in Texas). 50 William T. Onorato, Apportionment of an International Common Petroleum Deposit, 17 INT’L & COMP. L.Q. 85, 92-93 (1968) (the municipal laws of most of the oilproducing nations of the world have rejected the rule of capture rule in favor of correlative rights, providing several examples). By 1958, one noted U.S. observer quipped that “‘The Rule of Capture’ has become almost a phrase of contempt.” MAURICE H. MERRILL, THE PUBLIC’S CONCERN WITH THE FUEL MINERALS 32 (1960). Cf. Kuntz, supra note 43, at 115 (“In the absence of conservation regulation, the law of capture remains the basic law of decision and no apologies are required for its use.”). 51 Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S. Ct. 576 (1900). According to the Court, “But there is a co-equal right in them all to take from a common source of supply....It follows from the essence of their right . . . that the use by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder.”

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In response to the Supreme Court’s Ohio Oil Co. decision, local legislatures have enacted conservation regulations to modify the rule of capture so as to protect the correlative rights of the owners of a common source of supply.52 Modern municipal law generally recognizes the following correlative rights and duties: (1) the duty of each common owner to prevent intentional or negligent waste of the common source; (2) the duty to refrain from any practice which adversely affects the quality or recoverability of the common source; and (3) the inherent right of all to extract a fair share of the deposit.53 Correlative rights and obligations are enforced by regulations that seek to reduce inefficiency and promote fairness by conservation measures such as mandatory well spacing,54 pooling,55 and unitization56 of oil fields.57 Each U.S. state, as well as each oil-producing nation has established its own mix of rules and procedures to conserve oil and gas, but all ultimately have the same goal of

52

Correlative rights have been defined as: “[T]he opportunity afforded the owner of each property in a pool to produce, so far as it is reasonably practicable to do so without waste, his just and equitable share of the oil or gas, or both, in the pool.” WYO. STAT. ANN. § 30-5-101(a)(ix) (1977), as quoted in Anschutz Corp. v. Wyoming Oil and Gas Conservation Commission, 923 P.2d 751 (Wyo. 1996). In the United States, most oil and gas conservation measures are enacted on the State level. See Kellam, supra note 49, at 30-39 (summarizing state legislative definitions of correlative rights). See also WALTER L. SUMMERS, 5 THE LAW OF OIL AND GAS 192-400 (William J. Flittie ed., 1966) (provides a comprehensive, if dated, summary of state conservation laws). 53 Onorato, supra note 50, at 91-92. Eugene Kuntz, Correlative Rights in Oil and Gas, 30 MISS. L.J. 1 (1958) (providing explanations of various correlative rights and obligations). 54 Regulating the spacing of wells and the size of spacing units depending on the characteristics of each oil and gas pool. 55 If the size or irregular shape of a tract does not permit a well location that conforms to the statute or regulation, all or parts of adjacent tracts can be “pooled” to permit conformity with the well spacing requirements and to guarantee that an owner of a small or irregular shaped tract is not denied the opportunity to recover his “fair share” of the oil and gas in the pool. Flittie, supra note 52, at 335. 56 Unitization refers to a process whereby separate interest owners in a common oil and gas reservoir pool such interests to form a single unit under the sole operation of a single operator who conducts unit operations for all so that maximum efficient recovery is accomplished and production and/or revenues therefrom may be shared out in accordance with the agreed basis established in the unit plan. William T. Onorato, Apportionment of an International Common Petroleum Deposit, 26 INT’L & COMP. L.Q. 324, 332333 (1977). Unitization may be voluntary or compulsory. However, due to the difficulty of getting 100 percent agreement by all of the co-owning interests, all U.S. states, except Texas, have a compulsory unitization statute. Jacqueline Lang Weaver, Armtwisting Operators and Owners to Unitize: The Role of State Conservation Commissions in Preventing Waste, in PROCEEDINGS OF THE THIRTY-EIGHTH ANNUAL INSTITUTE ON OIL AND GAS LAW AND TAXATION 4 (Carol J. Holgren ed., 1987). 57 By 1930, most of the oil producing U.S. states had enacted oil and gas conservation statutes. By the 1960s, essentially all of the producing states had comprehensive legislation. See Flittie, supra note 52, at 192-400.

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creating a regulatory environment which provides opportunity of each co-owner of a shared pool to produce an equitable and just share without waste.58

B. International Law and Transboundary Offshore Oil and Gas Fields The practical benefits offered by municipal conservation laws have not gone unnoticed by the international community. Nations that share offshore transboundary oil and gas fields came to recognize the same potential problems associated with the exploitation of common pools as confronted domestic producers.59 By 1986, approximately forty coastal States that share transboundary oil and gas resources applied a conventional regime of cooperative management and exploitation.60 State practice is not uniform, but cooperation involving some form of joint exploitation of transboundary oil and gas deposits is progressively moving toward customary status.61 While the precise perimeters of this obligation to cooperate are still evolving, the absolute ownership or sovereignty over the shared resource granted under the traditional rule of capture has been unambiguously rejected as both wasteful and inequitable and has been replaced.62 It is still too early in the progressive development of any customary rule to assert that certain types of joint development mechanisms, such as unitization,

58 For example, some states allow ownership of oil and gas in the ground as part of the land (so-called “ownership-in-place” theory) while others refuse to recognize ownership of oil and gas while in the ground, only of a right to search and reduce the oil and gas to possession (“nonownership” theory). Regardless of which theory of ownership is applied, all states in the end are seeking the same reasonable and realistic results. Jared C. Bennett, Ownership of Transmigratory Minerals, Utah and Zebras: Proof that Oil and Gas Ownership Needs reform, 21 J. LAND RESOURCES & ENVTL. L. 349, 350 (discussing the historical development of the two theories and arguing that nonownership states have enacted conservation laws which make them act as if they were ownership-in-place states.) 59 Miyoshi, supra note 41, at 1 (the current idea of joint development of offshore oil and gas dates back to the International Court of Justice decisions in the North Sea Continental Shelf cases of 1969, but there were earlier examples of joint development of coal, natural gas and petroleum across international boundaries in Europe during the 1950s and 1960s). 60 Szekely, supra note 28, at 766. 61 Miyoshi, supra note 41 (providing case studies of many existing joint development agreements); David Ong, South-east Asian State Practice on the Joint Development of Offshore Oil and Gas Deposits, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 82-92 (G. Blake, et al., eds., 1995) (case studies of South-east Asian conventional State practice). Studies indicate that such agreements have been conducive to confidence-building and overall relations among participating nations. Miyoshi, id., at 48. 62 See Onorato, supra note 50, at 101 (“At very least [an international tribunal] could quite justly decide that in no case could any party in interest proceed unilaterally with exploitation procedures based on unrestricted capture to the prejudice of all other interestholders involved”).

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are required.63 However, there is unanimity among commentators with respect to the customary obligation that sharing states refrain from unilateral development of the resource concerned and that any prejudicial or wasteful exploration or exploitation of a shared field that contravenes the interests of a state sharing the resource must be regarded as being contrary to good faith.64 This obligation goes so far as to prohibit any form of unilateral exploitation if an offer for joint development is refused by a sharing state.65 Although, according to Miyoshi, it may be possible for a state to agree to place its potential share of the common deposit at the disposal of an adjacent state in exchange for some adequate compensation.66 Cooperation is especially important when the transboundary fugacious resource being exploited is located in the marine environment.67 International law has always viewed governance of ocean areas differently than terrestrial. Recognition of exclusive coastal state jurisdiction over ocean areas has not come about to simply satisfy each nation’s wish to exercise governmental power or sovereignty, but because coastal states have been judged the most effective custodians of the ocean and its resources.68 Consequently, international cooperation has been a prominent feature in much of the customary and conventional law that has emerged recently concerning the control of shared marine resources, especially those of a fugacious nature.69

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David M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law, 93 AM. J. INT’L L. 771, 792 (“a rule of customary international law requiring cooperation specifically with a view toward joint development or transboundary unitization of a common hydrocarbon deposit has not yet crystallized.”) Onorato, supra note 56, at 333 (While not yet required, “unitisation is clearly the best and, accordingly, the prime objective to aim for.”); see also Charles Robson, Transboundary Petroleum Reservoirs: Legal Issues and Solutions, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 8 (G. Blake et al. eds., 1995); Miyoshi, supra note 41, at 4; 64 Rainer Lagoni, Oil and Gas Deposits Across National Frontiers, 73 AM. J. INT’L L. 215, 235 (1979); Miyoshi, supra note 41, at 5; Onorato, supra note 50, at 101. 65 Onorato, supra note 56, at 329 (“Accordingly, it has been concluded that a State or States interested in an international common petroleum deposit may not exploit such a deposit over the seasonable objection of another such State or States and, therefore, such unlawful action, if taken, would be enjoinable and/or answerable in damages.”); see also Miyoshi, supra note 41, at 5. 66 Miyoshi, supra note 41, at 5. 67 This is true even for non-fugacious shared resources such as fish stocks. Since 1975, more than 150 bilateral agreements have been concluded that provide collaboration and cooperation in fishing activities within exclusive economic zones. Lea Brilmayer & Natalie Klein, Land and Sea: Two Sovereign Regimes in Search of a Common Denominator, N.Y.U. J. INT’L L. & POL. 703, 734 (2001). 68 Ian Townsend-Gault & William G. Stormont, Offshore Petroleum Joint Development Arrangements: Functional Instrument? Compromise? Obligation?, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY RESOURCES 60 (Gerald H. Blake et al. eds., 1995). 69 For example, CLOS Article 83(3) has been interpreted to mean that states without a final delimitation agreement must refrain from any unilateral action when it risks depriving other states of the gains they might realize by exercising their sovereign right of

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C. International Water Resource Cooperative measures, as opposed to the rule of capture, have also been adopted by the international community whenever a nation seeks to utilize transboundary freshwater resources.70 At about the same time that the dangers of unilateral exploitation of shared oil and gas become apparent, so did the notion that one nation could severely damage the sovereign rights of neighboring nations by solely controlling the utilization of international rivers and other water resources.71 Early legal doctrines that asserted either that States have absolute sovereignty over the use of water flowing within its territory72 or absolute territorial integrity73 to receive a completely unimpaired flow of water into its territory have been rejected as valid principles of international law.74

exploitation. Ong, supra note 61, at 798. See also ELLEN HEY, THE REGIME PLOITATION OF TRANSBOUNDARY MARINE FISHERIES RESOURCES (1989). 70

FOR THE EX-

Such resources include any common-pool freshwater resources that lie astride or cross political boundaries. These included lakes, rivers (both successive, i.e., crossing a boundary or contiguous, i.e., forming a boundary), aquifers, and any combination of these to which more than one state contributes or has access. Benvenisti, supra note 38, at 398. 71 Ludwik A. Teclaff, Fiat of Custom: The Checkered Development of International Water Law, 31 NAT. RESOURCES J. 45, 65-66 (1991) (The concept of the unity of a river was taken up in the late nineteenth century and expanded by 1890 to embrace entire river basins.); see Dante A. Caponera, Shared Waters and International Law, in Blake, supra note 61, at 121-26. See also, Weaver, supra note 49, at 36-37 (providing a modern example of how Texas’s continued use of the rule of capture for underground aquifers has “wreaked havoc on many areas of Texas.”) 72 Known as the “Harmon Doctrine”, absolute territorial sovereignty was asserted by the Attorney General of the United States in 1895 in defense of protestations by Mexico that U.S. diversions of water from the Rio Grande River damaged its citizens. According to the Harmon Doctrine, in the absence of established law to the contrary, States are free to exploit the water resources within their jurisdiction without regard to extraterritorial effects of such action. Gabriel Eckstein, Application of International Water Law to Transboundary Groundwater Resources, and the Slovak-Hungarian Dispute over Gabcikovo-Nagymaros, 19 SUFFOLK TRANSNAT’L L. REV. 67, 73 (1995). 73 This doctrine is the antithesis of the Harmon Doctrine because it only permits upper riparians to exploit the waters of a river so long as such utilization does not affect the interests of lower riparians. Id. at 74. 74 BONAYA ADHI GODANA, AFRICA’S SHARED WATER RESOURCES: LEGAL AND INSTITUTIONAL ASPECTS OF THE NILE, NIGER, AND SENEGAL RIVER SYSTEMS 36-39 (1985) (providing historical analysis of the rejection of absolute state sovereignty and absolute territorial integrity theories); Donald J. Chenevert, Jr., Application of the Draft Articles on the Non-Navigation Uses of International Watercourses to the Water Disputes Involving the Nile and the Jordan River, 6 EMORY INT’L L. REV. 495, 503-04 (1992) (denouncing the principle of absolute state sovereignty as violating the established rule of sic utere tuo ut alienum non laedus and noting that the principle of absolute territorial integrity has never been formally adopted in state practice or espoused in any international adjudication.) The United States formally rejected the Harmon Doctrine in 1942. See Melanne Andromecca Civic, A New Conceptual Framework for Jordan River Basin Management: A Proposal for a Trusteeship Commission, 9 COLO. J. INT’L ENVTL. L. & POL’Y 285, 296 n.64 (1998).

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In their place, the doctrine of equitable utilization has emerged as the primary modern guiding principle for shared water resources.75 Equitable utilization has been articulated in the three most influential conventional sources of law on the subject, The Convention on the Law of Non-Navigational Uses of International Watercourses,76 the Helsinki Rules on the Uses of Waters of International Rivers (Helsinki Rules)77 and the International Law Commissions Draft Articles.78 It is grounded in the doctrine of limited territorial sovereignty, which allows a riparian state to utilize a shared water resource to the extent that its utilization does not interfere with the corresponding reasonable utilization of other sharing states.79 In its most basic terms, equitable utilization “involves striking a balance between the needs of the States concerned in such a way as to maximize the benefit, and minimize the detriment to each.”80 Under the doctrine, a list of factors is used to find a fair and efficient allocation of the resource by balancing competing social, economic, and environmental interests of affected riparian states and the physical characteristics of the entire resource system. 81 It 75

Jonathan M. Wenig, Water and Peace: The Past, The Present, and The Future of the Jordan River Watercourse: An International Law Analysis, 27 N.Y.U. J. INT’L L. & POL’Y 331, 346 (1995) (equitable utilization is now established as the principle governing the allocation of shared international surface water resources); see also Andromecca Civic, supra note 74, at 293. 76 United Nations: Convention on the Law of Non-Navigational Uses of International Watercourses, G.A. Res. 51/229, U.N. GAOR, 51st Sess., U.N. Doc A/RES/51/229 (1997); 36 I.L.M. 700 [hereinafter Watercourse Convention]. The Watercourse Convention has not yet entered into force. 77 The Helsinki Rules, International Law Association, Report of the Fifty Second Conference at 484 (1966). Article 4 provides that “each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.” 78 International Law Commission Report on the Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, U.N. GAOR, 46th Sess., U.N. Doc. A/46/10 (1991), 30 I.L.M. 1554. 79 Watercourse Convention, supra note 76, at art. 5(1) (“Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner.”) 80 Stephen McCaffrey, Third Special Rapporteur to the ILC, in SECOND REPORT ON THE LAW OF THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES, International Law Commission, 38th Sess., U.N. Doc. A/CN.4/399 at 132, ¶ 175 (1986). 81 Article 6 of the Watercourse Convention, although not identical to the Helsinki Rules or Draft Articles, contains a very representative list of factors. Article 6: Factors relevant to equitable and reasonable utilization 1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; c) The population dependent on the watercourse in each watercourse state; (d) The effects of the use or uses of the watercourses in one watercourse state on other watercourse states; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. 2. In the application of article 5 or paragraph 1 of

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is essential to note that each affected state is entitled to a reasonable and equitable share—not of the waters themselves—but of their beneficial use.82 The 1997 Watercourse Convention remains the only legally binding global instrument that provides a comprehensive legal framework for the management of transboundary watercourses. Yet, interpretive disagreements over its Preamble and a number of substantive Articles significantly limits its use as a source of international customary norms and has left the law in a somewhat inchoate state.83 Nevertheless, there is a clear consensus that the general features of limited territorial sovereignty, with its component of equitable utilization has achieved customary status and must be applied even by objectors to the Watercourse Convention.84 Furthermore, an evolving doctrine know as the community of interests theory is attempting to move international water law even closer to the unitization approach adopted for the production of transboundary oil and gas resources.85 Community of interests theory seeks to provide equality for all riparian states by recognizing the entire hydrologically connected water system as a single economic and geographical unit regardless of national boundaries.86 Although the principle is widely recognized as the most appropriate method of managing international drainage basins, and is currently being applied in municipal water systems, its adoption has not yet taken hold internationally due to its radical intrusion into traditionally accepted rights of national sovereignty.87 International law recognizes that inefficiency, inequity, and strife are inevitable outcomes when nations are allowed to unilaterally exploit the beneficial use of transboundary fugacious resources without regard to the rights of coowning neighbors. Consequently, the traditional rule of capture has been firmly rejected and replaced by cooperative measures such as oil pool unitization, joint development of offshore oil fields, and equitable utilization of freshwater resources.

this article, watercourse states concerned shall, when the need arises, enter into consultations in a spirit of cooperation. 3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. Supra note 76, at art. 6. 82 Teclaff, supra note 71, at 69. 83 The final General Assembly vote on the Watercourse Convention was 103 in favor to 3 against, with 27 abstentions. United Nations: Convention on the Law of the NonNavigational Uses of International Watercourses, U.N. Doc. A/51/869 (1997), 36 I.L.M. 700. See Aaron Schwabach, The United Nations Convention on the Law of NonNavigational Uses of International Watercourses, Customary International Law, and the Interests of Developing Upper Riparians, 33 TEX. INT’L L.J. 257, 264-78 (1998) (examining the specific objections by various states to the Watercourse Convention.) 84 Schwabach, supra note 83, at 278. Caponera, supra note 71, at 123. Godana, supra note 74, at 50-66 (examining the legal meaning of equitable utilization and how it is applied in State practice.) 85 See supra note 56 and accompanying text. 86 Godana, supra note 74, at 48-49. 87 Id. at 49.

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D. Marine Genetic Resources—Weaknesses of the Current Rule of Capture Approach In stark contrast, to the well established international rules mandating cooperation when transboundary oil or other fugacious resources are exploited, the rule of capture remains the fundamental method of allocating ownership over transboundary genetic resources.88 Sadly, the current law governing access to marine genetic resources provides the same perverse set of incentives that caused the downfall of the rule of capture for oil and the rule of absolute territorial sovereignty for water.89 Competition for a share of the potential benefits provided by patentable commercial uses of genetic resources pits one co-owning nation against another and encourages redundancy, waste, and inefficiency in a race to exploit before other nations capture all of the benefits.90 Just as illustrated in the hypothetical example of East and West Coralia, the existing rule provides an incentive for potential users to play one source nation against another so as to obtain its genetic material from the one with the least rigorous benefit sharing or environmental regulations. Even if a user does not engage in shopping for the least regulated, and therefore least costly, supplier, in many instances the selection of a source country has more to do with serendipity than any other factor. Source countries are often chosen based on little more than personal or institutional relationships between researchers or upon the availability of grants from governmental or private funding entities rather on more beneficial and rational criteria such as abundance or quality of organisms within the region or ecosystem, environmental appropriateness vis-à-vis other nations sharing the resource, or national/local economic needs. Such an outcome is not surprising given the fact that no effective coordinating or administrative body generally exists to guide foreign users in making more informed decisions. Moreover, the existing rule of capture approach causes nations that share resources to compete rather than cooperate in obtaining useful scientific information relating to the resource. Given the possibility that one co-owning nation will receive all of the benefits from commercialization at the expense of the others, there are incentives to monopolize rather than share information and infrastructure. At no time in our history has there been a greater need for taxonomic (sometimes called biosystemic) knowledge. A sound taxonomic base is essential for environmental assessment, ecological research, the conservation of biological diversity, and sustainable utilization of marine genetic resources.91 To better implement an ecosystem approach and the overall goals of the CBD, States Parties have strongly endorsed coordinated improvements in the global capacity to conduct taxonomic research.92 These coordinated efforts have come to be known

88

See supra notes 59-87 and accompanying text. See supra note 46-58 and accompanying text. 90 See supra, at part V for a hypothetical example of how this may occur. 91 See supra note 7, at 2. 92 See generally id. 89

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as the Global Taxonomy Initiative (GTI).93 Among other measures, the initiative supports regional efforts to promote: (1) an increase in taxonomic information in shared formats; (2) the development of bioregional action plans; (3) the establishment of plans to help create, enhance and sustain new or existing regional taxonomic networks that promote the GTI; (4) promote the compilation of best practices; (5) enhance local and regional capacity in taxonomy; and (6) integrate taxonomic capacity into the national reporting process.94 Current rule of capture incentives potentially undermine these proposed collaborative efforts. Although source nations, especially if they are developing, will gladly accept financial aid from the Global Environment Facility and other funding bodies to improve their domestic taxonomy capacity,95 it is much less likely that they are going to willingly share information and cooperate with neighbors who may be competitors in the commercial development of a particular marine genetic resource. Only through the adoption of cooperative exploitation measures similar to those employed in the development of shared oil pools and water resources will co-owning nations fully participate in the collaborative research and capacity building envisioned by the GTI.

VII. Regional or Ecosystem-Based Approaches to Managing Marine Genetic Resources Regional or ecosystem-wide planning and administrative approaches reduce inefficiencies and redundancy in research, training, and technology. Scientifically sound and cost effective specimen collection protocols, taxonomic data storage and retrieval systems, monitoring and enforcement mechanisms, and other capacity building activities are greatly enhanced by a regional planning approach. Because most marine genetic resources of current interest are located in developing nations that lack management capacity, cooperative approaches allow scarce human and technical assets to be pooled and used more effectively. Ecosystem and regional approaches parallel many of the most important attributes of efficiency and equity envisioned by the Convention on Biodiversitys GTI efforts.96 In fact, this close fit may encourage national, multinational, and nongovernmental funding entities to more readily contribute to collaborative scientific research programs than would be the case if the same nations were working in isolation. 93 For a useful discussion of the history and action goals of GTI, see Fourth Meeting of the Subsidiary Body on Scientific, Technical and Technological Advice, Further Advancement Of The Global Taxonomy Initiative, Jan. 1999, UNEP/CBD/SBSTTA/4/6, available at http://www.biodiv.org/programmes/cross-cutting/taxonomy/docs.asp. 94 Fifth Meeting of the Subsidiary Body on Scientific, Technical and Technological Advice, Review of the Global Taxonomy Initiative at 8-9, Oct. 23, 1999, UNEP/CBD/ SBSTTA/5/4, available at http://www.biodiv.org/programmes/cross-cutting/taxonomy/ docs.asp. 95 GTI is funded by grants from the Global Environment Facility and by voluntary contributions from CBD States Parties. 96 See supra notes; 6-7; 91-94 and accompanying text.

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Most importantly, a regional or ecosystem-based management approach significantly reduces potential inequities and disputes associated with the exploitation of marine genetic resources. As has been illustrated in several recent transboundary oil and gas scenarios, cooperative agreements over shared resources are more easily achieved and more successfully implemented if they are negotiated prior to a major resource discovery.97 It is clearly better to anticipate and prevent future disputes than to wait until the next major drug discovery occurs. At that point, if one nation is perceived by its neighbors as arbitrarily and unfairly receiving all of the benefits from a shared genetic resource, it may be too late to prevent the likely tensions and recriminations from escalating or to find a mutually acceptable means of resolving the resulting dispute. Moreover, collaborative agreements over shared marine genetic resources may have a very salutary role in improving broader political relations between participating states. For example, the nations of Belize and Guatemala have had a longstanding, and sometimes violent, legal and political dispute over their respective territorial boundaries including maritime boundaries.98 Recognizing that the ongoing disagreement is an obstacle to regional cooperation and economic integration, the two nations have begun to engage in selected confidence building measures. One collaborative project has the potential to play a prominent role in the management of marine genetic resources.

A. Mesoamerican Barrier Reef System Project In 2001, Belize and Guatemala, along with Honduras and Mexico, agreed to participate in the Mesoamerican Barrier Reef System Project (MBRSP). MBRSP was established with funding from the World Bank and Global Environmental Facility to conserve and manage the second longest barrier reef in the world.99 The exceptionally high biodiversity and ecological significance of the reef system has resulted in its designation as a World Heritage site. The four littoral states have drafted a fifteen year conceptualized program to support the formulation of national and regional policies necessary for the conservation and sustainable development of the reef.100 Especially important among the program components is a Regional Environmental Monitoring and Information System (REIS). The purpose of the REIS is to make accessible to the projects clients as well as the general public, information relevant to the management of the barrier 97

See supra notes 59-66 and accompanying text. For a discussion of the history of the Belize/Guatemala territorial dispute and steps being taken to reduce tensions, see the Belize Government Website at http://www.belize-guatemala.gov.bz/belize_position.html. 99 MESOAMERICAN BARRIER REEF SYSTEMS PROJECT ANNUAL WORK PLAN 20012002 (August 22, 2001) (on file with the author). General information about the MBRSP may also be found at its website, http://www.mbrs.org.bz/english/en_index.html. 100 MBRSP currently has five project components: Marine Protected Areas; Regional Environmental Information System; Sustainable Use of the Mesoamerican Barrier Reef System; Public Awareness and Environmental Education; and Project Management. Id, at 2. 98

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reef system and the health of related ecosystems.101 Included within the REIS will be information and data from the Synoptic Monitoring Program (SMP). As envisioned, the SMP will monitor up to 23 sites based on the presence of biodiversity-rich ecosystems; importance of the areas as sources or sinks for recruitment of corals, fish, and other important community components; and presence and degree of threat associated with pollution stemming from onshore activities.102 Long-term monitoring by project-trained personnel and outside experts will generate a reliable data baseline covering as many biological, physical, and ecological parameters as possible. Standardized monitoring methodology will allow comparisons between monitoring sites, countries, and regions. Currently, foreign access to marine genetic resources has not been specifically identified as a project component. However, much of the information collected and disseminated through REIS and SMP will also be of extraordinary value to researchers interested in accessing marine genetic resources. Consequently, MBRSP could readily serve in the future as an institutional vehicle to develop a harmonized set of guidelines and principles promoting an ecosystem or region-based approach to managing these transboundary resources. MBRSP’s existing and highly competent administrative and scientific infrastructure coupled with its focus on one discrete marine ecosystem with exceptionally high biodiversity makes it ideally suited to spearhead any effort to initiate such a cooperative approach. Future collaboration in the management of marine genetic resources would only improve the atmosphere of trust and cooperation between Belize and Guatemala as well as the other MBRSP partner States. In addition, cooperation would make it less likely that relations would turn for the worse should one nation seek to capture all of the benefits of the shared genetic resource at the expense of the others. Globally, a significant number of regional governmental maritime organizations already exist for the purposes of more effectively managing fisheries, conserving fragile coral areas, and protecting the marine environment.103 All of these organizations to various degrees collect and compile data, serve as fora for considerations of problems, and take actions on conservation and utilization of resources.104 Many are potentially capable of providing an institutional vehicle to facilitate an ecosystem or regional approach to managing marine genetic resources. In summary, benefits of a regional or ecosystem approach to management include: 1. improving the efficiency and cost effectiveness of scientific research; providing uniformity and efficiency in specimen collection protocols, taxonomic data storage and retrieval systems;

101

Id, at 9. Id. at 16. 103 See Lawrence Juda, Rio Plus Ten: The Evolution of International Fisheries Governance, 33 OCEAN DEV. & INT’L L. 109, 124 Table 2 (2002) (listing more than thirty regional fisheries organizations and arrangements.) 104 Id. 102

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offering broader opportunities for effective education and training programs; enhancing monitoring and enforcement mechanisms; reducing illicit cross-border movements of genetic resources; encouraging funding opportunities from national, multinational, and nongovernmental funding entities; reducing inequalities between sharing States and preventing potential disputes arising from unilateral exploitation of shared quasi-fugacious resources; and improving political relations between participating states

VIII. Conclusion With sufficient foresight and encouragement, existing regional organizations such as the MBRSP or other newly created entities could take on an effective coordinating and administrative function for the cooperative management of marine genetic resources. As has already occurred in the cases of transboundary oil and gas and water resources, the international community will someday reject the rule of capture as the fundamental method of managing transboundary and shared marine genetic resources in favor of some form of cooperative regional or ecosystem-based approach. The road to international acceptance may be long and arduous, as it was with other varieties of fugacious resources. However, with time and sufficient state practice, the international community will come to recognize the folly of its present path and the value of acting cooperatively.

Part 4. Institutions and Adjudication

CHAPTER 12

The International Tribunal for the Law of the Sea Bernard H. Oxman

The International Tribunal for the Law of the Sea (Tribunal) was established by the U.N. Convention on the Law of the Sea (Convention).1 It is one of several options available to the parties to the Convention for compulsory and binding settlement of disputes concerning its interpretation or application. Under the Convention, arbitration is generally the applicable procedure unless both the applicant and the respondent have filed declarations selecting the Tribunal or the International Court of Justice (ICJ),2 or have otherwise agreed to confer jurisdiction on either of those courts or another forum.3 However, the Tribunal has compulsory jurisdiction over all parties to the Convention in certain situations, notably: N applications for prompt release on reasonable bond of a foreign vessel and crew arrested for fisheries or pollution violations;4 N requests for provisional measures pending the establishment of an arbitral tribunal under the Convention;5 1

United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21 I.L.M. 1261 (1982). (hereinafter cited as Convention). 2 Convention, art. 287, paras. 3-5. 3 Convention, arts. 280, 282, 288, paras. 1, 2. 4

Convention, art. 292, para. 1. 285

D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 285-96. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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N

deep seabed mining disputes subject to the jurisdiction of the Tribunal’s Seabed Disputes Chamber.6 While this system is generally open only to states and certain intergovernmental entities such as the European Community7 and the International Seabed Authority,8 private mining companies have access to dispute settlement procedures with respect to deep seabed mining,9 and applications for prompt release of a vessel and crew may be brought either “by” or “on behalf of” of the flag state.10 The Convention’s dispute settlement system is incorporated by reference into the Agreement on the Implementation of the Convention with respect to Straddling Fish Stocks and Highly Migratory Fish Stocks, which recently entered into force.11 However, parties to the Agreement that are not yet party to the Convention, such as Canada and the United States, are not obliged to accept the compulsory jurisdiction of the Tribunal with respect to provisional measures.12

I. Cases Submitted Since its inaugural session on October 18, 1996, the Tribunal has received five applications for prompt release on bond, three requests for provisional measures, and two submissions of disputes by agreement. All but two of these cases relate to fisheries, and there is some connection to fisheries in one of those two. Of the five applications for prompt release, in three cases the Tribunal fixed bond and ordered release,13 in one case the Tribunal decided it lacked jurisdiction,14 and in one case the vessel was released before proceedings were held. 15 5

Convention, art. 290, para. 5. Convention, arts. 186-88, 288, para. 3. 7 Convention, art. 1, para. 2(2), art. 305(f), ann. IX, arts. 1, 7. 8 Convention, art. 187(b)-(e). 9 Convention, arts. 187(c)-(e), 190. 10 Convention, art. 292, para. 2. 11 United Nations 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, Aug. 4, 1995, U.N. Law of the Sea Bull., No. 29, at 25 (1995), reprinted in 34 I.L.M. 1542 (1995), art. 32 (hereinafter cited as Straddling Stocks Agreement). 12 Straddling Stocks Agreement, art. 31, para. 3. 13 Saiga (St. Vincent v. Guinea), Prompt Release, ITLOS Case No. 1 (Dec. 4, 1997), http://www.itlos.org/case_documents/1997/document_en_60.doc; Camouco (Pan. v. Fr.), Prompt Release, ITLOS Case No. 5 (Feb. 7, 2000), http://www.itlos.org/case_documents/ 2001/document_en_129.doc; Monte Confurco (Seych. v. Fr.), Prompt Release, ITLOS Case No. 6 (Dec. 18, 2000), http://www.itlos.org/case_documents/2001/document_ en_115.doc. 14 Grand Prince (Belize v. Fr.), Prompt Release, ITLOS Case No. 9 (Jul. 13, 2001), http://www.itlos.org/case_documents/2001/document_en_88.doc. 15 Chaisiri Reefer 2 (Pan. v. Yemen), Prompt Release, ITLOS Case No. 9 (Jul. 13, 2001), http://www.itlos.org/case_documents/2001/document_en_104.doc. 6

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Pursuant to its rules,16 the Tribunal itself acted promptly in these cases, disposing of them in a matter of weeks with relatively concise opinions. This is entirely appropriate; where persons and property are being detained by a government, timely judicial action should take precedence over elaborate explication. It is interesting to note that three of the prompt release cases related to fisheries arrests by France in the EEZ off its Southern and Antarctic Territories. The fact that it has been sued three times may have encouraged France to nominate a French national for election to the Tribunal in 2002.17 It is also interesting to note that although the three cases against France were brought by or on behalf of different flag states, it would appear that the real party in interest that hired the attorneys was a Spanish fishing company. This fact may have encouraged Spain to nominate a Spanish national for election to the Tribunal in 2002 as well. In the SAIGA case, the request for provisional measures related to the same matter in which the Tribunal had previously ordered prompt release, which finally occurred prior to the decision on provisional measures.18 In that case, the parties, although subject to arbitration under the Convention, also agreed, prior to the decision on provisional measures, to submit the dispute to the Tribunal for adjudication on the merits.19 The other two requests for provisional measures related to situations in which the constitution of an arbitral tribunal was pending. In the Southern Bluefin Tuna case,20 the Tribunal essentially granted the requests of Australia and New Zealand, and ordered Japan to respect previously agreed limits on its fishing. In the MOX Plant case,21 the Tribunal essentially declined Ireland’s requests for provisional measures against the UK, finding that there was no urgent need for such measures pending the constitution of the arbitral tribunal; in light of that determination some observers have wondered about the basis for the Tribunal’s order that the parties cooperate and report back.22 Of the two cases submitted to the Tribunal by agreement, only the SAIGA case between Saint Vincent and the Grenadines and Guinea has been decided. 23 After Chile and the European Community submitted their dispute over sword-

16

International Tribunal for the Law of the Sea, Rules of the Tribunal, art. 112, http://www.itlos.org/documents_publications/rules_amendments_en.doc. 17 The nominee, Jean-Pierre Cot, was elected in 2002. He had previously served as judge ad hoc in the Grand Prince case, supra note 14. 18 Saiga (No. 2) (St. Vincent v. Guinea), Provisional Measures, ITLOS Case No. 2 (Mar. 11, 1998), http://www.itlos.org/case_documents/1998/document_en_86.doc. 19 Id., para. 3. 20 Southern Bluefin Case (N.Z. v. Japan; Austl. v. Japan), Provisional Measures, ITLOS Case Nos. 3 and 4, paras. 81-2 (Aug. 27, 1999), http://www.itlos.org/case_documents/2001/document_en_116.doc. 21 MOX Plant Case (Ir. v. U.K.), Provisional Measures, ITLOS Case No. 10, para. 81 (Dec. 3, 2000), http://www.itlos.org/case_documents/2001/document_en_197.doc. 22 Id., paras 84, 86. 23 Saiga (No. 2) (St. Vincent v. Guinea), Judgment, ITLOS Case No. 2 (Jul. 1, 1999), http://www.itlos.org/case_documents/2001/document_en_68.doc.

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fish to a chamber of the Tribunal,24 they agreed to suspend proceedings and endeavor to negotiate a conservation agreement.25

II. Procedure We have learned many things from these cases. Some concern the dispute settlement system established by the Convention. Perhaps most significantly we have learned that this large tribunal of 21 judges, most of whom reside at considerable distances from the seat of the Tribunal in Hamburg, is capable of acting quickly and efficiently when that is required; indeed, as one might anticipate from the jurisdictional provisions of the Convention, urgent requests for release of vessels and crew or for provisional measures have been a staple of the Tribunal’s diet to date. One suspects that the Tribunal’s embrace of modern means of electronic communication has facilitated this efficiency. We have learned that the Tribunal is not inclined to expand its limited compulsory jurisdiction over prompt release applications beyond what is expressly contemplated by the Convention. Thus, prompt release cases deal only with the question of the duty to release on bond set forth in the Convention; the Tribunal has repeatedly refused to address the merits of any dispute regarding the legality of the arrest or prosecution in prompt release proceedings. In this connection it should be recalled that the Convention expressly requires prompt release on bond in two situations in which there is unquestionably a right to arrest and prosecute, namely fisheries violations in the EEZ and pollution violations subject to coastal state jurisdiction.26 Thus the question of whether the arrest and prosecution are lawful is different from, and is not as such implicated by, the question of the duty of prompt release on bond. In this regard it should be borne in mind that the former question, to the extent that it is subject to compulsory jurisdiction, must be submitted to arbitration, not to the Tribunal, unless both parties have declared or agreed otherwise. Moreover, the former question is not necessarily subject to compulsory jurisdiction under the Convention in disputes regarding the exercise of fisheries jurisdiction in the EEZ.27 We have learned that the Tribunal is serious about maintaining the consistency of its own jurisprudence. But it is not sclerotic. In the SAIGA case on the

24 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (European Community v. Chile), ITLOS Case No. 7, Order 2000/3 (Dec. 20, 2000), http://www.itlos.org/case_documents/2001/ document_en_100.doc. 25 Id., ITLOS Case No. 7, Order 2001/1 (Mar. 15, 2001), http://www.itlos. org/case_documents/2001/document_en_99.doc. The European Community simultaneously suspended proceedings in a related case against Chile under the WTO dispute settlement understanding. See Dispute Settlement Body – Chile – Measures Affecting the Transit and Importation of Swordfish – Arrangement between the European Communities and Chile – Communication by the European Communities, WTO Doc. WT/DS193/3 (June 4, 2001), http://docsonline.wto.org/DDFDocuments/t/WT/DS/193-3.doc. 26 Convention, arts. 73(2), 220(7), 226(1)(b). 27 Convention, arts. 297(3), 298(1)(b).

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merits,28 the Tribunal, with the advantage of fuller argument and more time for deliberation, abandoned its speculation in its prompt release order in the same matter that the ship was arrested for violation of fisheries laws. Moreover, in SAIGA the Tribunal was flexible in dealing with a lapse in registration of the detained vessel,29 while in GRAND PRINCE it was quite strict.30 No trained lawyer should be surprised by this. Courts routinely apply procedural requirements in light of particular factual circumstances. American lawyers may recall that the first of the Federal Rules of Civil Procedure prescribes both efficiency and fairness as governing considerations in applying the rules.31 It would also appear that concerns about chaotic changes in established jurisprudence occasioned by the creation of a new standing tribunal seem exaggerated, at least insofar as the Tribunal is concerned. The judges of the Tribunal have cited ICJ opinions over 50 times as authority on questions of international law and procedure. Not once has the Tribunal expressed disagreement with the ICJ. But this deference to ICJ tradition is not appropriate where the Convention expressly departs from the system that applies in the ICJ, which is open only to states.32 One has the impression at times that a few members of the Tribunal are ill at ease with the right of private parties under the Convention to apply for prompt release of vessels and crew “on behalf of” the flag state if authorized to do so by that state, and with the concomitant right of the flag state to limit its role, and indeed, if it wishes, to remain only the nominal party on whose behalf others bring the action. The prompt release procedure, and the access of private parties if authorized by the flag state, are intentional innovations in the Convention designed to reinforce fundamental interests in liberty and property; they should be welcomed with the requisite procedural flexibility and innovation. Experience suggests that some technical reforms in the approach of the Tribunal might be considered in connection with applications brought on behalf of, rather than by, the flag state. For example, it is open to doubt whether the agent for the applicant should invariably be treated as the agent of the flag state, and whether the applicant should invariably be referred to as the flag state. It would be useful to adopt procedures for notifying flag state authorities of an application brought on behalf of the state that are consistent with the right of the flag state, if it wishes, to authorize a class of persons (such as ship owners or union representatives) to file applications for prompt release on its behalf without the need to specifically authorize each application. Needless to say, the flag state on whose behalf the application is made would retain the right to assume control of the application, and indeed to discontinue it, if it wishes. One might also wish to think about establishing procedures for direct communication with the flag state where

28

Saiga (No. 2), supra note 23. Id., paras. 72-74. 30 Grand Prince, supra, note 14. 31 Fed.R.Civ.Pro. 1 (“They [these rules] shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”). 32 ICJ Statute, art. 34(1). 29

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necessary to obtain additional documents or information, although my commonlaw training disposes me to rely on the attorneys in this regard. I have written more than once that there is no convincing evidence of political or regional alignments in the voting patterns of the Tribunal, and continue to adhere to that view. Decisions to date afford little if any reason to embrace the concerns of those who, in various private conversations, have raised questions in light of the European Community’s common fisheries policy about the participation of several judges from member states of the Community in fisheries cases involving one of those member states but not the Community or its common fisheries policy as such. Moreover, I find no obvious predispositions in the voting patterns that reflect national policies. If anything, to the surprise of many skeptics no doubt, the reverse may be true.

III. Conservation and Environmental Protection Perhaps the greatest public attention to date has been attracted by the two cases in which the Tribunal was asked to prescribe provisional measures pending the constitution of an arbitral tribunal. What we learn from these cases is that the Tribunal takes conservation and environmental duties very seriously and is prepared to act decisively in the exercise of its novel powers to prescribe provisional measures to prevent serious harm to the marine environment, including its living resources, during the substantial time it takes to hear and decide a dispute. In Southern Bluefin Tuna, the Tribunal imposed a specific catch limit on the parties and, while sidestepping the debate over the status and meaning of the precautionary principle, also told the parties to act with prudence and caution.33 In MOX Plant, notwithstanding its conclusion that there was no urgent need for provisional measures pending the constitution of an arbitral tribunal, the Tribunal ordered the parties to cooperate and report back, stressing the duty of cooperation as an integral element of environmental duties.34 That said, a few separate and dissenting opinions appear to make narrow assumptions regarding the reasons for coastal state arrest and prosecution of foreign fishing vessels in the EEZ. The reasons are rarely exclusively environmental, may be both environmental and economic, and often are largely economic and political. To be sure, the coastal state has the right to enforce its exclusive control over fisheries in the EEZ for economic reasons. The question is whether it is appropriate, or even relevant, to wave a green flag every time a fishing boat is arrested and treated harshly. The fact that both the LOS Convention and the Straddling Stocks Agreement provide for conciliation but not for compulsory third-party arbitration or adjudication with respect to the coastal state duty to conserve the living resources of the EEZ 35 in itself suggests that a court should regard fisheries jurisdiction in the exclusive economic zone, as its very name suggests, primarily in terms of the coastal state’s economic interests

33

Southern Bluefin, supra note 20, paras. 77, 90(1)(c). MOX Plant Case, supra note 21, paras. 82, 86, 89(1-2). 35 Convention, art. 297(3); Straddling Stocks Agreement, supra note 11. 34

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in natural resources. Its authority to advance those economic interests merits protection and scrutiny on its own.

IV. Human Rights Some might argue that the impressive record of the Tribunal with regard to the protection of human rights is the most significant substantive development to emerge thus far from its cases: N It has acted with appropriate, but nevertheless remarkable, speed in prompt release cases. N It has made clear that international law does not permit the use of excessive force and wanton violence in stopping, inspecting and arresting vessels at sea.36 N It has established that the duty to release arrested crew members promptly on reasonable bond means that they must be permitted to leave the country.37 N It has refused to require that local remedies be exhausted in prompt release cases,38 as well as in full cases on the merits where the vessel is involuntarily brought within the jurisdiction of the detaining state.39 N It has closely scrutinized the amount of the bond to ensure that it is reasonably related to the gravity of the offenses charged.40 N It has rejected requirements that the bond be posted in cash and has specified that a bank guarantee constitutes sufficient security.41 N It has permitted the flag state to make claims not only for direct injuries to its own legal interests but for injuries to the ship, its crew, and its cargo without regard to the nationality of the individuals who suffered those losses.42 That said, I should add that I hope I am mistaken in discerning, in a few separate and dissenting opinions, a possible intimation that the fundamental protections of human rights inherent in effective judicial protections of liberty and property are somehow in conflict with conservation and environmental goals. The protections for both human rights and the environment set forth in the Convention were hard won. It would be sad indeed if they were to be perceived as contradictory. The idea that the discretion of the state is not unlimited is, in the end, fundamental to any effective system of international law, including both human rights law and environmental law. To assert that the state remains free to do what it likes to protect the environment even at the expense of other internationally protected interests is, in the end, to admit that the state remains free to do what it likes to advance other interests even at the expense of the environ36

Saiga (No. 2), supra note 23, para. 155. Camouco, supra note 13, paras 71, 73. 38 Id., para. 58. 39 Saiga (No. 2), supra note 23, paras. 98, 100. 40 Camouco, supra note 13, paras. 67-8; Monte Confurco, supra note 13, para. 76. 41 Camouco, supra note 13, para. 74; Monte Confurco, supra note 13, para. 93. 42 Saiga (No. 2), supra note 23, paras. 105-6. 37

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ment. In this, as in many other things, it is foolhardy to assume that one’s own priorities are invariably the same as those of other constituencies to which governments are accountable. It would be particularly ironic if effective private access to international institutions, including courts, fell victim to such a false conflict. Environmental and other nongovernmental organizations are endeavoring to expand their right at least to file amicus curiae briefs before international tribunals; they are engaged in the same struggle against exclusively state-centered views of international law and institutions that is involved in prompt release cases brought by private parties “on behalf of” the flag state. Those environmentalists who were disappointed that the WTO Appellate Body refused to consider amicus briefs, including one attached to the U.S. Government submissions, in its recent Shrimp/Turtle case43 because the U.S. would not adopt what was said there as its own, should also be troubled by the implications of a state-centered treatment of applications for prompt release by private parties “on behalf of” the flag state that fails to fully reflect the underlying purpose of ensuring effective private access if the flag state authorizes it.

V. Navigation From the perspective of navigation and commerce, among the most significant developments is the willingness of the Tribunal to ensure respect for freedom of navigation. In its decision on the merits in SAIGA, the Tribunal distinguished carefully between customs jurisdiction in the contiguous zone, whose maximum limit is 24 miles, and fisheries jurisdiction in the EEZ, whose maximum limit is 200 miles. It determined in that case that the object of Guinea’s arrest and prosecution of a foreign vessel engaged in supplying fuel to fishing vessels was enforcement of customs laws, and concluded that the arrest, detention and prosecution of the vessel and its crew were unlawful because pursuit of the vessel had not commenced in the contiguous zone and did not otherwise satisfy the requirements for hot pursuit. 44 There are perhaps some opponents of “flags of convenience” who may be troubled by the Tribunal’s conclusion in the SAIGA case that the requirement of a genuine link between a ship and the flag state does not provide grounds for refusing to recognize the nationality of the ship. This conclusion emerged from the Tribunal’s careful study of both the textual context and legislative history of the genuine link requirement for ships45 (and seems consistent with the observations by the International Court of Justice in the Barcelona Traction case on the difference between natural and juridical persons in this regard46). As a matter of both human rights and environmental policy, it also ensures that there is a state 43 United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/RW, paras.75-78, pp. 19-20 (Appellate Body Rep., Oct. 22, 2001). 44 Saiga (No. 2), supra note 23, paras. 150-52. 45 Id., paras. 75-88. 46 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 1970 I.C.J. 3, para. 70 (Feb. 5, 1970).

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in a position to protect the interests of nationals of many different states represented by the ship, its crew and passengers, and the cargo owners, and that there is a state that is legally responsible for ensuring compliance with the substantial safety, environmental and conservation obligations imposed by the Law of the Sea Convention on the flag state.47

VI. Multiplicity of Fora We have learned that the Tribunal is not disposed to decline jurisdiction to prescribe provisional measures in a case arising under the Law of the Sea Convention simply because the dispute between the parties also arises under another treaty with different dispute settlement provisions. It accordingly prescribed provisional measures in the Southern Bluefin Tuna case.48 Notwithstanding the fact that an arbitral tribunal subsequently took the opposite point of view and dismissed that case,49 the Tribunal once again took essentially the same position in considering the application for provisional measures in the MOX Plant case.50 What we are facing here is not, as some would have it, merely a procedural consequence of the multiplicity of tribunals or dispute settlement procedures. It is rather a broader and more challenging problem of regime coordination, and as such a consequence of the growth of a large number of functional and regional treaty regimes and institutions in the international system, of which the Law of the Sea Convention is but one major example. The Southern Bluefin Tuna case was arguably the first occasion on which the underlying problem was presented directly to an international tribunal, albeit in a context in which one treaty regime provided for compulsory jurisdiction and another complementary treaty did not; I for one was disappointed that the arbitral tribunal chose to analyze the issue solely in procedural terms rather than in broader terms of regime coordination.51 In the MOX Plant case we encounter a different situation, in which the dispute implicates two complementary treaties that do provide for compulsory jurisdiction, but in different arbitral fora.52 Moreover, there are those in Brussels who believe the appropriate forum for handling that dispute between the two EU member states is the European Court of Justice, adding yet a third potential forum to the package.53 The swordfish dispute between Chile and the European 47

Saiga (No. 2), supra note 23, para. 107. Southern Bluefin, supra note 20. 49 Southern Bluefin Tuna (Australia and New Zealand v. Japan). Jurisdiction and Admissibility. Arbitral Tribunal (Aug. 4, 2000), http://www.worldbank.org/icsid/ bluefintuna/award080400.pdf. 50 MOX Plant Case, supra note 21. 51 Southern Bluefin Tuna arbitral award, supra note 49. 52 See Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ire. v. U.K.), Final Award, Jul. 2, 2003, http://www.pca-cpa.org/PDF/ OSPAR%20Award.pdf. 53 The arbitral tribunal constituted under the LOS Convention suspended proceedings until December 1, 2003 in light of the announcement of the European Commission on May 15, 2003 that it is examining the question whether to institute internal proceed48

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Union involves claims by Chile that EU fishing violates conservation obligations under the Law of the Sea Convention and claims by the EU that Chile’s restrictions on EU vessels violate Chile’s trade obligations under the WTO/GATT. Two different specialized dispute settlement procedures arising under regimes with substantially different purposes would apply to the respective claims. Even so, the questions are not entirely unrelated; for example, I think it unlikely that the Appellate Body established under the WTO Dispute Settlement Understanding would regard as irrelevant to the legality of Chile’s trade measures a determination by the Law of the Sea Tribunal on whether EU fishing was consistent with international conservation norms. There are those who are horrified by this emerging complexity. I agree with Judge Rosalyn Higgins that it is not a cause for regret.54 It is a clear sign that international law is coming of age. Questions of regionalism and functionalism and specialization arise all the time in developed municipal legal systems. The result is rarely neat and simple; it may well occasion sleepless nights for law students and handsome fees for lawyers. But that is because we are engaged in a constant but haphazard search for better ways to govern ourselves, and then ask courts to introduce some measure of coherence.55 I have every confidence that, in the end, international tribunals will be as successful as municipal courts in dealing with the problem, and that we will come to regard it as a routine part of international law, just as we regard it as a routine part of municipal law.

VII. Unresolved Issues One of the most interesting characteristics of the decided cases is that they suggest that the Tribunal as a whole (albeit not all of its members all of the time) regards its primary function as deciding the case before it, and eschews elaborate dictum on issues whose resolution is not essential to the decision. In part this is a result of the fact that all but one of its decisions was reached in the context of a prompt release or provisional measures application, both of which must be acted upon with dispatch. N In SAIGA, the Tribunal declined to decide whether refueling fishing vessels in the EEZ is subject to the jurisdiction of the coastal state and, if so, under what circumstances and with what consequences.56 ings in this matter under article 226 of the European Community Treaty. MOX Plant (Ire. v. U.K.), Order No. 3, paras. 21, 29-30 (Jun.24, 2003) (Ann. VII arbitration), http:// www.pca-cpa.org/PDF/MOX%20Order%20no3.pdf. 54 Rosalyn Higgins, Respecting Sovereign States and Running a Tight Courtroom, 50 INT’L & COMP. L.Q. 121, 122 (2001). 55 In explaining its suspension of proceedings to permit resolution within the European Community of the question of the jurisdiction of the European Court of Justice over the dispute, the MOX Plant arbitral tribunal referred to “considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States.” MOX Plant arbitration, supra note 53, Order No. 3, para. 28. 56 Saiga, supra note 13, paras. 56, 59. Some of the dissents did address the issue. Diss. Op. Mensah, P., paras. 17, 20-2, http://www.itlos.org/case_documents/0000/docu-

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N

Three times the Tribunal has been faced with French arrest and prosecution of a fishing vessel for, among other things, failing to give notice of its entry into the EEZ of the French Southern and Antarctic Territories; three times the Tribunal has avoided passing on the legality of this requirement, subtly—and in my view correctly—concentrating on the rebuttable presumption under French law that a fishing vessel found with fish on board within the EEZ of this remote area caught the fish in the EEZ unless it gave notice of the catch it had on board upon entering the EEZ.57 N In GRAND PRINCE the Tribunal was faced with a situation in which a French penal court ordered confiscation of an arrested fishing vessel very quickly. The effect of the Tribunal’s decision to dismiss the case on unrelated jurisdictional grounds was to avoid the need to decide whether there is an option of rapid confiscation, and if so, whether it in effect nullifies the duty of prompt release under the Convention.58 In commenting on this case,59 I referred readers to Chapter 4 of Alexander Bickel’s celebrated book on the Supreme Court, The Least Dangerous Branch, in which he discusses techniques for not deciding issues when it would be improvident to do so.60 I doubt that there are many litigators in the world who would be surprised by the notion that a plaintiff who poses an issue the court would prefer not to decide for the moment had better be certain every procedural requirement for bringing the case is strictly satisfied. International law is emerging from a desert where only rarely could one partake of the wisdom of an authoritative international judicial decision; it is entering a semi-arid region where, with proper will and attention, many more decisions may sprout forth here and there. As this happens, those who are elected to international tribunals are likely to become increasingly sensitive to the classic division of roles maintained in many legal systems between the judiciary and the academy; the principal task of the former is to decide cases, and of the later is to provide explication, treatises, and theories. There is, or at least normally should be, a significant difference between a reasoned judicial

http://www.itlos.org/case_documents/0000/document_en_57.doc; Diss. Op. Wolfrum, V.P. & Yamamoto, J., paras. 20-2, http:// www.itlos.org/case_documents/0000/document _en_59.doc; Diss. Op. Anderson, J., para. 7, http://www.itlos.org/case_documents/ 0000/document_en_56.doc; Diss. Op. Park, J., Nelson, J., Chandrasekhara Rao, J., Vukas, J. & Ndiaye, J., paras. 12-14, http://www.itlos.org/case_documents/0000/ document_en_58.doc. 57 See discussion in Camouco, supra note 13, para. 59; Monte Confurco, supra note 13, paras. 80-2; see also Bernard H. Oxman and Vincent P. Bantz, Case Report, Camouco, 94 AJIL 713, 715 n.19 (2000). 58 The author and Vincent P. Bantz analyze this issue in Un Droit de confisquer? L’Obligation de prompte mainlevée des navires, in L A M ER ET SON DROIT , M ÉLANGES OFFERTS À L AURENT L UCCHINI ET J EAN -P IERRE Q UÉNEUDEC 479 (2003). 59 Bernard H. Oxman & Vincent P. Bantz, Case Report, 96 AJIL 219 (2002). 60 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 111-98 (2d ed. 1986).

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opinion and a reasoned law review article. The Tribunal has clearly indicated that it understands this.

VIII. Conclusion There is reason both for the members of the Tribunal, and for the many constituencies interested in its work, to take satisfaction in the record thus far. From many perspectives it would be useful if the judges were kept busier with more cases. But we should not lose sight of the fact that one of the purposes of enforcing the law through courts is to encourage and facilitate voluntary compliance. In CHAISIRI REEFER 2 the application for prompt release itself led to release without any need for a hearing. French courts in the Southern and Antarctic Territories are certainly paying more attention to the Tribunal’s decisions, although some observers have wondered whether adherence or avoidance is the object. There may be many other instances in which governments are voluntarily implementing the requirements of the Convention as elucidated by the Tribunal without the need to resort even to municipal courts. From the perspective of advancing the rule of law, facilitating harmonious relations among states, and strengthening the legal regime of the oceans, that would certainly be a welcome development.

CHAPTER 13

Jurisdictional Conflicts between International Tribunals: A Framework for Adjudication & Implementation Lakshman Guruswamy*

I. Introduction The proliferation of international judicial bodies (international courts as well as quasi-judicial tribunals of different kinds) is one of the most significant developments in international law and international relations in the post Cold War age.1 According to one accounting, there are 125 international courts and tribunals in existence today,2 most of which were established in the last 40 years. *

I am deeply indebted to Kevin Doran for his invaluable assistance. This article benefited from the comments of those attending a summer faculty seminar of the Law School at the University of Colorado at Boulder, and particularly from the contribution of Hiroshi Motomura. I am also thankful to Anita Springsteen for her editorial assistance. 1 For a summary of this position, see Cesare P. R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. INT’L. L & POL. 709, 728-748 (1999). 2 See The Project on International Courts and Tribunals: The International Judiciary in Context—A Synoptic Chart, available at http://www.pict-pcti.org/publications/synoptic_chart.html (last visited January 29, 2004). 297 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 297-347. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Prominent commentators have welcomed the mushrooming of international judicial bodies as a propitious portent for the peaceful settlement of international disputes.3 But, as is common in the development of law and policy, this proliferation of judicial bodies is not without its problems. A number of reasons have been given as to why such a development should be welcomed. It has been argued that such tribunals facilitate the development and expansion of principles of international law,4 enlarge the scope of justiciability for international disputes,5 enable international law to improve through expansion and experimentation,6 develop international law through dialogue between various tribunals,7 contribute to evolution of the international legal system’s judicial function,8 encourage and facilitate peaceful dispute settlement in judicial forums,9 increase the likelihood of negotiated settlements to international legal disputes,10 increase access to judicial and quasi-judicial fora for dispute resolution,11 enable claimants to appeal to fora with specialized expertise,12 and ensures greater parity between claimants.13 On the other hand, it has been suggested that the mushrooming of such tribunals undermine the appearance of an unitary and coherent legal system,14 ren3 See e.g., Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. J. INT’L L. & POL. 697 (1999); Pierre Marie Dupuy, The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice, 31 N.Y.U. J. INT’L L. & POL. 791 (1999); Georges Abi-Saab, Fragmentation or Unification: Some Concluding Remarks, 31 N.Y.J OF INT’L L. & POL. 919 (1999). 4 See Charney, supra note 3, at 703–04; Jonathan I. Charney, Third Party Dispute Settlement and International Law, 36 COLUM. J. TRANSNAT’L L. 65, 66 (1997). 5 Dupuy, supra note 3, at 796. 6 See Jonathan I. Charney, Comment, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 90 AM. J. INT’L L. 69, 82 (1996) [hereinafter Implications]. 7 See Benedict Kingsbury, Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?, 31 N.Y.U. J. INT’L L. & POL. 679, 681 (1999). 8 See Dupuy, supra note 3, at 796. 9 See Implications, supra note 6, at 69; Robert E. Lutz II, Perspectives on the World Court, the United States, and International Dispute Resolution in a Changing World, 25 INT’L LAW 675 (1991); Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 AM. SOC’Y INT’L L. PROC. 160, 164–165 (2000); see also Charney, supra note 3, at 703–04. 10 See Charney, supra note 3, at 704; Kingsbury, supra note 7, at 687. 11 See Susan B. Hunt, Wrap-Up Panel: Are International Institutions Doing Their Job?, 90 AM. SOC’Y INT’L L. PROC. 583, 596 (1996); Romano, supra note 1, at 749. 12 See Implications, supra note 6, at 74. 13 See Andrew A. Jacovides, International Tribunals: Do They Really Work for Small States, 34 N.Y.U. J. INT’L L. & POL. 253, 261 (2001). 14 See Dupuy, supra note 3, at 792; Charney, supra note 3, at 699, 706; Abi-Saab, supra note 3, at 924. See also Gilbert Guillaume, The Future of International Judicial Institutions, 44 INT’L & COMP. L.Q. 8458 (1995); Shigeru Oda, Dispute Settlement Prospects in the Law of the Sea, 44 INT’L & COMP. L.Q. 863 (1995).

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der it more difficult to establish formal relations between juridical entities,15 foster perceptions of illegitimacy regarding juridical entities and decisions,16 decrease the likelihood of state compliance with decisions seen as illegitimate, 17 promote greater insularity and isolation of juridical entities from general international law,18 increase uncertainty for states regarding their obligations under existing law,19 engenders conflicts over jurisdictional authority,20 perpetuate conflicts between normative commitments of juridical entities, 21 increase forum shopping and perception of forums as outcome-determinative,22 increases the possibility of conflicting judgments and inconsistency in case law. 23 This article addresses the problem of overlapping or competing jurisdiction arising from the creation of multiple tribunals—a problem that while presently hovering in the wings of international law may soon occupy center stage. The resolution of ensuing disputes or controversies between competing norms and institutions cannot be left unresolved. To leave them unattended and allow them to fester would result in uncertainty, institutional confusion, and legal disorder that would diminish an already vulnerable international legal order. The issue of competing jurisdiction has created a thicket of questions. Among the more important are: Will the potential for such conflicts turn trade and environmental disputes into a race to reach the most favorable courthouse? 15

See Mónica Pinto, Fragmentation or Unification Among International Institutions: Human Rights Tribunals, 31 N.Y.U. J. INT’L L. & POL. 833, 841 (2001). 16 See Kingsbury, supra note 7, at 684; Charney, supra note 3, at 699. 17 See Thomas M. Franck, Legitimacy in the International System, 82 A.J.I.L. 705, 706 (1988). 18 See Dupuy, supra note 3, at 792; Charney, supra note 3, at 706; Kingsbury, supra note 7, at 691; Gregory H. Fox, International Organizations: Conflicts of International Law, 95 AM. SOC’Y INT’L L. PROC. 183 (2001). Gregory H. Fox, International Organizations: Conflicts of International Law, 95 AM. SOC’Y INT’L L. PROC. 183, 187 (2001); AbiSaab, supra note 3, at 926. 19 See Dupuy, supra note 3, at 798. 20 See id., at 797; Kingsbury, supra note 7, at 683; H. E. Judge Gilbert Guillaume, President of the International Court of Justice, Address at the Sixth Committee of the General Assembly of the United Nations (Oct. 27, 2000) [hereinafter President]; President of World Court Warns of Overlapping Jurisdictions’ in Proliferation of International Judicial Bodies, Sixth Committee, U.N. PRESS RELEASE GA/L/3157 17TH MEETING (AM) (Oct. 27, 2000); Bernard H. Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 AM. J. INT’L L. 277 (2001). 21 See Dupuy, supra note 3, at 796–97; Kingsbury, supra note 7, at 691; Charney, supra note 3, at 699. 22 See President, supra note 20; Tullio Treves, Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice, 31 N.Y.U. J. INT’L L. & POL. 809 (2001). 23 See Dupuy, supra note 3, at 797–98 and 807; Charney, supra note 3, at 699; Kingsbury, supra note 7, at 691; President, supra note 20; Treves, supra note 22, at 810; Fox, supra note 18, at 184; John Noyes, The International Tribunal for the Law of the Sea, 32 CORNELL INT’L L.J. 109, 173 (1998).

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To what extent does the possibility of confusion and uncertainty resulting from two tribunals exercising jurisdiction over the same case present negative implications for the future of international law? Might the absence of established rules of international law to govern clashes between tribunals asserting concurrent jurisdiction foment legal confusion where tribunals joust with each other for judicial supremacy? And perhaps most importantly, how might conflicting orders of these tribunals be assessed, implemented or enforced. The potential for jurisdictional conflict between tribunals assumes particular poignancy because the horizontal and consensual international legal system does not enjoy a compulsory, unified or hierarchical system of courts, or satisfactory procedural and substantive rules for dealing with jurisdictional overlaps. In the absence of such legal mechanisms (which national or municipal legal systems take for granted), this article maps out a strategy for how this matter might be resolved under international law. This article will explore and address the more important issues surrounding potential jurisdictional conflicts between international judicial bodies by examining a hypothetical conflict between the International Tribunal of the Law of the Sea (ITLOS), established under the United Nations Convention on the Law of the Sea (UNCLOS),24 and the Dispute Settlement Body (DSB), established by the World Trading Organization (WTO)25—both of whom may claim jurisdiction over the hypothetical dispute. An examination of potential jurisdictional conflict between ITLOS and the DSB reflects a number of the major problems that might arise in a dispute involving both trade and environmental issues. There are several reasons for using a hypothetical to outline the important issues in a potential dispute. First, a hypothetical can more sharply frame the legal issues, unrestricted by the limited facts of an actual case, and can therefore encompass many possible scenarios and offer promising answers to difficult and theoretical questions. A hypothetical can formulate its factual variables so as to give rise to both general and specific issues in a way that an actual case may not. Furthermore, there are no actual cases presently being litigated—or which have been previously litigated—in which the parties are subject to obligations under two treaties, and potentially cannot fulfill their obligations under one without violating the other. This article will develop the argument that disputes falling within the overlapping jurisdictional authority of ITLOS and DSB require an analytical framework that recognizes both tribunals have been granted preliminary jurisdiction by their instituting treaties—UNCLOS and the WTO. Analogizing from con24

United Nations Convention on the Law of the Sea, Dec. 10, 1982, Part XV, 21 I.L.M. 1261 (1982) [hereinafter UNCLOS]. 25 Understanding on the Settlement of Disputes, Apr. 15, 1994, Final Act Embodying the Results of the Uruguay Round [hereinafter GATT 1994]; GATT 1994, Annex II, art. 3, LEGAL INSTRUMENTS—RESULTS OF THE URUGUAY ROUND VOL. 1 (1994), 33 I.L.M. 1125 (1994) [hereinafter DSU]. GATT 1994 consists of twenty-seven articles and four appendixes. Id.

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flicts of law jurisdiction, this article posits that a constitutive treaty may be viewed as one that confers “legislative” jurisdiction on a tribunal created by it. Where a conflict arises, however, the assertion of jurisdiction in the face of parallel or competing claims by another tribunal also endowed with legislative jurisdiction over that same conflict should be undertaken only where a tribunal determines that it also possesses “judicial” jurisdiction over that conflict. In such a scenario, however, there is no pre-determined answer to the question of which tribunal should assert “judicial” jurisdiction. Given this fact, this article contends that both tribunals should commit themselves to jurisdictional principles designed to avoid institutional conflicts. It will further argue that such jurisdictional principles must be based on the criteria of fairness and reasonableness. Principles of fairness and reasonableness express themselves in conflict of law doctrines such as comity, forum non conveniens, choice of law and abstention. This article advances the argument that as these doctrines offer considerable help in avoiding and resolving jurisdictional conflicts, they can and should be adapted and incorporated into international law as being among those general principles of law referred to in article 38(c) of the Statute of the International Court of Justice.26 For both the parties and institutions involved in such a jurisdictional conflict, as well as for international law in a broader sense, the principles by which tribunals decide to assert or assume judicial jurisdiction is of critical importance. To best ensure its acceptance by the implicated parties and the international community, a decision to exercise jurisdictional authority in such circumstances must be expressly predicated on the conflict avoidance principles of fairness and reasonableness. Preemptive strategies to avoid conflicts, based on fairness and reasonableness, may succeed in resolving some jurisdictional conflicts. On the other hand, they may prove inadequate to the task of resolving problems that arise where both tribunals not only conclude they are acting fairly and reasonably by asserting judicial jurisdiction, but deliver two conflicting decisions or orders. Faced with two such conflicting judicial decisions, international law offers no clear answers as to which decision should prevail. This article proposes that the question of which decision should be accepted or rejected should primarily depend on the legitimacy of the respective orders. The challenge is to identify principles or derive criteria helpful to assessing and determining the legitimacy of the application of each of the two competing orders to the particular situation. The question of legitimacy in the context of jurisdictional conflicts between judicial bodies flags a more pervasive phenomenon lurking beneath the surface of the burgeoning international legal corpus. International civil society, like national civil societies, is composed of numerous groups, organizations, and factions pursuing their own normative objectives and goals. While some of these goals and objectives may complement one another, they may also impede efforts 26

See Statute of The International Court of Justice, 15 U.N.C.I.O. 35559 Stat. 1055 (1945), art. 38(c), 59 Stat. 1031, 1976 U.N.Y.B. 1052.

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to secure one another’s attainment. The respective groups within international civil society utilize the legal process to institutionalize their own objectives and goals as legal norms. Consequently, the legal norms embodied in international treaty regimes may express a diversity of competing goals, objectives, principles and rules. Given the broad and complex canvas of international law, it is important that when presented with conflicts falling within the ambit of overlapping jurisdictional authorities, tribunals take cognizance of, and factor in, the decisional import of the laws administered by the concurrent jurisdictional authority. A critical factor in the determination of legitimacy is the substantive law applied by each tribunal. In the absence of an executive to enforce judicial rulings or a supreme legal authority capable of issuing rulings accepted as definitively resolving contentious legal issues, legitimacy is of critical importance to the efficacy of international tribunals. Tribunals cannot act as hermetically sealed systems or self-contained legal fiefdoms that purposefully repudiate the world of law outside their own institutional regimes without the potential cost of undermining their own institutional legitimacy.27 Thus in terms of perceptions of justice, a tribunal that disregards the full extent of the international obligations entered into by its parties is likely to be perceived as unfair, unreasonable and illegitimate, while one that takes cognizance of the full scope of the international obligations entered into by the parties is more likely to be viewed as legitimate. Concepts such as fairness, reasonableness and legitimacy can be categorized as being among those “general principles of law” referred to in article 38(c) of the Statute of the International Court of Justice. These general principles may enable international judicial entities to navigate the difficulties of jurisdictional conflicts vis-à-vis one another by providing a set of mutually accepted principles with which to resolve such conflicts, rather than two sets of ostensibly discrete principles and rules derived solely from the treaties establishing their own jurisdictional competence or limited objectives.

II. Competing Jurisdictional Ambits: A Hypothetical Problem The absence of compulsory judicial settlement is a serious weakness in the legal structures of international law, particularly in the area of environmental law. Within the context of jurisdictional conflicts over disputes implicating both trade and environmental issues, this weakness is compounded by the fact that there is no single international environmental court or tribunal. In contrast, the judicial infrastructure established by the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO)28 is perceived as a unique system of compul27

See Part IV infra. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194, amended by Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Annex II, Apr. 15, 1994, LEGAL INSTRU28

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sory and binding dispute settlement. The combination of these factors has compelled nations engaged in environmental disputes involving a trade dimension to defend their environmental claims under the trade law applied by the DSB. The result has been a series of decisions generally detrimental to the international environment. Trade disputes with environmental facets that fall within the jurisdictional province of a DSB panel may simultaneously be subject to the jurisdictional authority of ITLOS. Unfortunately, the de facto primacy possessed by the DSB has succeeded in diminishing the importance of the equally compulsory and binding dispute settlement procedures instituted by UNCLOS, as well as the more limited, but nonetheless significant, jurisdiction of the International Court of Justice (ICJ). While it appears that ITLOS will interpret and apply a formidable number of environmental provisions whose objective is to advance international environmental protection, they are nonetheless capable of taking into account the broader corpus of international law.29 On the other hand, the judicial mechanisms of GATT/WTO were established to implement a regime of liberal trade and are yet uncertain about their role vis-à-vis International Environmental Law (IEL). The following hypothetical presents a dispute between two fictional countries involving rights and obligations under both an environmental treaty and a trade agreement. By situating this dispute within the legislative jurisdiction of both ITLOS and the DSB, the hypothetical reflects some of the problems that a jurisdictional conflict between a DSB panel and ITLOS would present.

A. The Unified Domains of Marieca and the Kingdom of Napaj The Unified Domains of Marieca (Marieca) is a party to the 1995 Straddling Fish Stocks Agreement (SFSA)30 and the GATT/WTO, but not the United Nations Convention on the Law of the Sea (UNCLOS).31 The Kingdom of Napaj

MENTS—RESULTS

OF THE URUGUAY ROUND vol. 1 (1994), 33 I.L.M. 1125 (1994) [hereinafter WTO Agreement]. 29 See infra notes 80-84, 115-17, 151-62 and accompanying text. For additional commentary on DSB procedures, see infra notes 40, 87-88, 178 and accompanying text. Also, for an assessment of recent DSB cases and the possibility that holdings in these cases evidence a less restrictive approach to choice of law decisions, see infra notes 190209 and accompanying text. 30 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea, Dec. 10, 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Dec. 4, 1995, U.N. Doc. A/CONF. 164/37 (1995), 34 I.L.M. 1542 (1995) (in force as of Dec. 11, 2001) [hereinafter SFSA]. 31 See UNCLOS, supra note 24.

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(Napaj) is a party to GATT/WTO, UNCLOS and the SFSA.32 In accordance with the non-binding 1992 resolution passed by the U.N. General Assembly banning driftnet fishing in the high seas, both Marieca and Napaj have passed internal laws disallowing the use of driftnet fishing.33 Marieca, however, is concerned about the destruction of its already attenuated straddling fish stock and highly migratory fish stock, and suspects that Napaj trawlers may be illegally using driftnets despite Napaj’s domestic laws prohibiting their use.34 On the basis of these suspicions, Marieca pursues two

32 Marieca and Napaj are anagrams for actual countries. While the hypothetical is based on the actual obligations undertaken by their real world counterparts, differences do exist. Napaj’s acceptance of the SFSA is one example of such a difference. 33 On December 20, 1991, the U.N. General Assembly agreed to a non-binding resolution that called on the international community to implement resolutions 44/225 and 45/197 by, inter alia, taking the following actions: (a) beginning on January 1, 1992, reduce fishing efforts in existing large-scale pelagic high seas drift-net fisheries through reduction of the number of vessels involved, the length of the nets and the area of operation—so as to achieve, by June 30, 1992, a fifty percent reduction in fishing efforts; (b) continue to ensure that the areas of operation of large-scale pelagic high seas drift-net fishing are not expanded; (c) ensure that a global moratorium on all large-scale pelagic drift-net fishing is fully implemented on the high seas of the world’s oceans and seas, including enclosed seas and semi-enclosed seas, by December 31, 1992. See United Nations: General Assembly Resolution on Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, G.A.Res. 46/215, 31 I.L.M. 241 (1992) [hereinafter UNGA 46/215]. On July 1, 1993, the Japanese government announced that it stopped issuing largescale driftnet fishing licenses after December 31, 1992, and had established an enforcement plan that would utilize six patrol vessels for a total of 495 days. The government also established a compensation program for driftnet vessels that fished in one of the driftnet fisheries at least two of the last three years of the fishery. 34 Subsequent to the initiation of the U.N. driftnet moratorium, several states evinced concern that the practice of reflagging to avoid legitimate management controls was emerging as a serious problem in a number of high seas fisheries around the world. See Adoption of Agreements on Environment and Development; Protection and Preservation of the Marine Environment, REPORT OF THE SECRETARY-GENERAL, U.N. DOC. A/CONF.151/10 (1992), reprinted in 3 AGENDA 21 & THE UNCED PROCEEDINGS 1623 (Nicholas A. Robinson ed., 1992). The matter of illegal fishing practices by vessels flying flags of convenience was discussed at length at the United Nations’ Conference on Straddling and Highly Migratory Stocks in the summer of 1993 and resulted in the adoption by the Food and Agricultural Organization (FAO) of a draft convention entitled the “Code of Conduct for Responsible Fishing.” In February 1994, the FAO Conference adopted the “Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas” to control reflagging of high seas fishing vessels. Under this agreement, parties must take those measures necessary to ensure that their flag vessels do not engage in any activity that undermines the effectiveness of “international conservation and management measures,” including measures adopted under agreements to which the flag state is not a party. The agreement covers all high seas fish-

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courses of action.35 It first informs Napaj of its suspicions and asks Napaj to implement regulatory procedures—which Marieca asserts are mandated by Napaj’s obligations under the SFSA and UNCLOS—to prevent the illegal use of driftnet fishing by its trawlers. Napaj, however, firmly denies that its trawlers are engaging in illegal driftnet fishing and refuses to take any action pursuant to the concerns expressed by Marieca. Marieca then engages in surveillance and inspection of suspected Napaj vessels—the latter occurring within its territorial waters—to find evidence supporting its suspicions. Upon evidentiary confirmation that Napaj trawlers are indeed practicing driftnet fishing in violation of the U.N. resolution and the laws of both Marieca and Napaj, Marieca concludes that Napaj’s trawlers present a serious threat to the continued sustainability of the stocks. Marieca and Napaj then engage in a period of fruitless negotiations, conciliation attempts and other peaceful endeav-

ing vessels, not just those that have been reflagged. See L. A. Kimball, UNCED and the Oceans Agenda, 17 MARINE POL’Y 6, 491-500 (1993). 35 The United States’ Driftnet Act Amendments of 1990 (§ 107, Public Law 101627), which incorporated and expanded the Driftnet Impact Monitoring, Assessment, and Control Act of 1987 (Public Law 100-220), implemented the U.N. moratorium and directed that work continue on negotiations to obtain a permanent ban on destructive fishing practices. After of July 1, 1991, producers of fish or fish products caught with driftnets within the South Pacific Convention area and producers of tuna caught with driftnets anywhere were prohibited from selling those products in the United States. After June 30, 1992, the ban applied to all fish products caught anywhere with driftnets longer than 2.5 km. Drift-netting nations exporting seafood to the U.S. are currently required to provide documents certifying that the products were not taken with driftnets. In 1992, the U.S. Congress enacted the High Seas Driftnet Fisheries Enforcement Act (Pub. L. No. 102-582) to increase the effectiveness of U.N. resolutions 44/225, 45/197 and 46/215 (see supra notes 33-34) which it co-sponsored. Under the Act, permissible enforcement measures include denial of U.S. port privileges for any large-scale driftnet vessel, mandatory sanctions on fish products from countries that continue largescale driftnet fishing on the high seas beyond the U.N. deadline—including a prohibition on the importation into the U.S. of fish and fish products and sport fishing equipment— and expanded presidential authority under the Pelly Amendment (Pub. L. No. 92-219, 85 Stat. 786 (1971) (codified at 22 U.S.C. § 1978 (1982)) to the 1954 Fishermen’s Protective Act to pursue sanctions against non-fisheries imports. To date, none of these provisions have been invoked. On March 8, 1993, the U.S. State Department delineated the steps it would take if it were to believe, on the basis of reasonable evidentiary support, that a foreign flag vessel encountered on the high seas is conducting, or has conducted, large-scale pelagic driftnet fishing operations inconsistent with U.N. resolution 46/215. The State Department announced that “if U.S. enforcement authorities have ‘reasonable grounds’ to believe any foreign flag vessel is conducting or has conducted large scale driftnet fishing, . . . and if the vessel is correctly registered, U.S. authorities will take appropriate ‘law enforcement’ action in accordance with agreements. . . .” See U.S. Says It Will Enforce Driftnet Fishing Moratorium, REUTER ASIA-PACIFIC BUSINESS REPORT, Mar. 8, 1993. See also UNGA 46/215 supra note 33.

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ors in an effort to resolve the dispute.36 Following its public declaration that negotiations have failed, Marieca implements a temporary ban on the import of certain fish stocks from Napaj. Marieca claims that both its rights and Napaj’s obligations under the SFSA authorize such a ban.37 In accordance with Part XV, article 287(1)(c) of UNCLOS,38 Marieca submits the dispute to arbitration and requests—pursuant to article 288(2) of UNCLOS39—that the arbitral tribunal issue a declaration affirming the legality of its emergency ban. Shortly thereafter

36

The SFSA, Part VIII: Peaceful Settlement of Disputes, article 27 (regarding the obligation of parties to settle disputes by peaceful means), stipulates: “States have the obligation to settle their disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” SFSA, supra note 30. 37 See SFSA, supra note 30, at art. 6, § 7. This provision of the SFSA reads, “If a natural phenomenon has a significant adverse impact on the status of straddling fish stocks or highly migratory fish stocks, States shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impact. States shall also adopt such measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific evidence available.” (emphasis added). 38 UNCLOS, Part XV: Settlement of Disputes, article 287, § 1(c): 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: . . . (c) an arbitral tribunal constituted in accordance with Annex VII. . . .UNCLOS, supra note 24. The SFSA, at article 30(1), also stipulates the applicability of Part XV of UNCLOS to the resolution of disputes arising under its terms: “The provisions relating to the settlement of disputes set out in Part XV of the [UNCLOS] apply mutatis mutandis to any dispute between States Parties to [the SFSA] concerning the interpretation or application of [the SFSA], whether or not they are also Parties to the [UNCLOS].” SFSA, supra note 30. UNCLOS, article 281, § 1, which regards the applicable procedures where no settlement has been reached by the parties, reads, “If the State’s Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.” UNCLOS, supra note 24. 39 Article 288, § 2 of UNCLOS reads, “A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.” UNCLOS, supra note 24. See also SFSA, art. 30(1), supra note 38; SFSA, supra note 30.

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Napaj institutes proceedings in the DSB of GATT/WTO, attempting to have Marieca’s actions declared in violation of GATT/WTO rules.40 The dispute between Napaj and Marieca thus involves two international judicial bodies, each possessing concurrent jurisdictional authority over the case. If the case is adjudicated simultaneously in each forum, not only does the issuance of contradictory decisions become a distinct possibility, but each party is forced to defend itself in a forum outside of its choosing. As both Napaj and Marieca are parties to GATT/WTO, the DSB has compulsory jurisdictional authority over the dispute.41 Given the considerable enforcement mechanisms of GATT/WTO, it would be inadvisable for Marieca to disregard the jurisdictional mandate of the DSB and adjudicate the issue in the UNCLOS arbitral forum. Additionally, while the UNCLOS arbitral tribunal may lack similar institutional mechanisms by which to enforce its jurisdictional and decision-making authority, Part XV, Section 2 of UNCLOS establishes it as a compulsory dispute settlement system with the power to issue binding decisions.42 Thus, for Napaj to simply disregard the tribunal’s jurisdictional authority would both signify its repudiation of a treaty to which it is a party and place it in clear violation of international law.

40

See WTO Agreement supra note 28; DSU supra note 25. The purpose of the WTO dispute settlement system is to confer predictability and security of outcome upon an international legal system that is lacking such attributes. See DSU, supra note 25, at art. 3(2). The dispute settlement procedure is activated by a request from a member state whereupon the DSB, in the absence of a consensus decision not to do so, establishes a well-qualified panel to hear the case. The panel examines the matter in light of the relevant provisions of the covered agreements cited by the parties to the dispute. After careful consideration, the panel submits its findings in a report to the DSB. This report will be adopted by the DSB unless (1) a party to the dispute formally appeals the panel decision, or (2) the DSB decides by consensus not to adopt the report. Where there is an appeal, and the Appellate Body upholds the legal findings and conclusions of the panel, its report shall be adopted by the DSB, unless the DSB decides by consensus not to adopt the decision. See id. at arts. 16(4) and 17(14). 41 See DSU, supra note 25. The WTO, as an overarching institutional body, possesses a compulsory system of dispute settlement replete with both executive and judicial powers. 42 See UNCLOS, supra note 24, at Part XV, § 2 (compulsory proceedings entailing binding decisions). Article 296(1) of UNCLOS reads, “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.” (emphasis added).

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III. Legislative and Judicial Jurisdiction43 The question of how to resolve jurisdictional conflicts between two international tribunals established by treaties (or intergovernmental tribunals) has not hitherto been addressed by treaty or customary law. At the outset, it is important to clarify that references in this article to customary law apply to the customary law dealing with the jurisdiction of intergovernmental tribunals, not the law pertinent to domestic tribunals. By way of illustration, the Restatement (Third) avers that reasonableness has emerged as rule of customary international law, and asserts a state may not exercise jurisdiction when it is unreasonable to do so. 44 However, the Restatement is only addressing customary law applicable to domestic courts,45 and it is important to distinguish this sort of customary law from that which applies to the intergovernmental or international tribunals discussed in this article. While this article accepts the Restatement’s position on the existence of customary law applicable to domestic courts, its concern is with international institutions. Jurisdictional conflicts between intergovernmental or international tribunals present a different set of challenges than those engendered by jurisdictional conflicts between different national courts—challenges that international law must be willing and capable of resolving. Currently, there is no compelling evidence of practice or opinio juris which substantiates the claim that reasonableness is a rule of customary international law applicable to a clash of jurisdiction between intergovernmental tribunals. Faced with this lacuna in customary and treaty law, one must look to other international sources of law for solutions to the deficiency. The conceptual compass designed by Hersch Lauterpacht for dealing with lacunas in international law is of particular importance to this task. Lauterpacht notes, [W]henever a question arises which is not governed by an existing rule of international law . . . or in the absence of such a rule . . . the rich repository of general principles may legitimately be resorted to by a tribunal, a government, or a scholar grappling with a novel or difficult situation.46

43

This segment of the article is based upon and incorporates excerpts from, Lakshman Guruswamy, Should UNCLOS or GATT Decide Trade and Environment Disputes? 7 MINN. J. GLOBAL TRADE 287 (1998). 44 See RESTATEMENT (THIRD) OF CONFLICTS OF LAWS § 403 (1987). The Restatement maintains that a domestic court possessing prescriptive or adjudicatory jurisdiction may not exercise that jurisdiction if it is unreasonable to do so. It asserts that the principle of reasonableness is based on customary international law. The Restatement is referring to jurisdiction exercised by domestic courts and not to the law governing intergovernmental tribunals. 45 See id. 46 HERSCH LAUTERPACHT, INTERNATIONAL LAW 68-74 (1970).

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Lauterpacht additionally states that general principles “may apply to agreements . . . between one [intergovernmental] organization and another, between [intergovernmental] organizations and states, and probably between [intergovernmental] organizations and private individuals.”47 Having recognized a repository of general principles as part of the broader corpus of international law, it is necessary to ascertain where this repository might be located, and then identify any relevant principles that might apply to cases of conflicting jurisdiction. National legal systems are the traditional repository of a substantial number of general principles employed by international law, and international law continues to recruit many of its rules from national laws.48 Hersch Lauterpacht authenticated the extent to which this phenomenon occurs by revealing the way international law is molded by domestic sources, analogies and experiences.49 He showed how rules of uniform application are expressed in all the main systems of jurisprudence.50 The jurisprudence dealing with, inter alia, the competing jurisdiction of lawfully constituted national tribunals that exercise jurisdiction over transnational transactions, falls within the province of conflict of laws jurisprudence— also known as private international law. The phenomenon of jurisdictional conflicts is obviously not something that is new or unique to domestic jurisprudence. In modern times, such conflicts are assuming a more pronounced international character as globalization redefines intergovernmental interaction and jurisdiction. The old world of various independent legally sovereign nations is now a smaller, more interconnected transnational world of global trade and technologies that reach beyond national boundaries. The actions of corporations, individuals and groups engaged in trade and communication are now subject to the laws of more than one country, and therefore subject to the competing jurisdiction of the judicial forums within those countries.51 These conflicts primarily 47

Id. International Status of South-West Africa, 1950 I.C.J. 128, 148 (July 11) (McNair, J., dissenting in part and concurring in part). 49 HERSCH LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF INTERNATIONAL LAW (1970) (internal quotation marks omitted). 50 See id. at 69. 51 See ANDREAS F. LOWENFELD, INTERNATIONAL LITIGATION AND THE QUEST FOR REASONABLENESS (1996). Lowenfeld offers a number of cases in support of his thesis that an emerging consensus about the criteria employed in asserting both legislative and judicial jurisdiction is growing. He argues these cases display a confluence between national and international criteria that are based on fairness and reasonableness. Id. at 79. In Bier v. Mines de Potasse d’Alsace SA, a French company in Alsace discharged massive amounts of chlorides into the Rhine. Case 21/76, 1976 E.C.R. 1735, (1977) 1 C.M.L.R. 284. The chloride allegedly damaged nursery gardens in Holland and the Dutch Supreme Court upheld the assertion of jurisdiction by a Dutch court despite the pleas that the discharge of chlorides was lawful where it took place in Alsace, France. The European Court of Justice affirmed, basing itself on the EEC Convention on jurisdiction and the 48

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arise because nations exercise their national jurisdiction over areas of socioeconomic policy and law shared by all modern civil societies, such as health, safety, trade, economic regulations, communications, technology and the environment.52 The increasing spate of international litigation reveals the extent to which national legal systems of the world, dealing with such issues, are clothed with concurrent—not exclusive—jurisdiction.53 Conflicts theory analyzes the concept of jurisdiction as traversing two different issues: legislative (or prescriptive) jurisdiction and judicial jurisdiction. When applied to a putative clash between UNCLOS and GATT, two questions are raised. First, does an UNCLOS tribunal possess the jurisdiction, power, or right to entertain the dispute? Conflicts of law commentators refer to this question as one of legislative or prescriptive jurisdiction.54 Second, assuming that UNCLOS does possess legislative or prescriptive jurisdiction, is it reasonable for it to exercise this jurisdiction? This question is referred to as one of “judicial jurisdiction.”55

enforcement of judgments. Subsequently, a Dutch court applied Dutch law concerning environmental damage, rejecting the defense that the conduct was lawful. LOWENFELD, supra at 30. In another case a construction company called Muduroglou Ltd., which was incorporated in northern Cyprus, sued a Turkish Bank for $20 million, claiming the Turkish bank had wrongfully paid this amount to the Libyan government. Muduroglou Ltd. first sued in England, but the courts rejected jurisdiction on the basis of forum non conveniens in Muduroglou Ltd.v. TC Ziraat Bankasi (1986) 3 W.L.R. 606. Muduroglou Ltd. then tried to sue in Germany, claiming that a German statute gave the German courts jurisdiction. The German Supreme Court found that the statute should be read in conjunction with the international competence (or jurisdiction) of the German courts, and held that the necessary link required by international law was not present. LOWENFELD, supra at 59-61. In a third case, a Japanese widow, whose husband was killed in Malaysia in an airline crash, sued the Malaysian airline for non-performance of the contract of carriage. The Malaysian airline, which maintained an office and did business in Japan, moved to dismiss the suit on the basis that the contract of carriage was entered into in Malaysia and bore no relation to the company’s business in Japan. The Japanese Supreme Court in Gotu v. Malaysian Airlines applied the principle of fairness and found that it possessed jurisdiction. 35 Minshu 1224 (Sup. Ct., Oct. 16, 1981). See LOWENFELD, supra at 48-51. 52 Among the policy and legal areas dealt with by U.S. cases involving concerns of overlapping jurisdiction are: economic regulations dealing with bank secrecy, see U.S. v. First Nat’l City Bank, 396 F.2d 897 (2nd Cir. 1968); and the law applicable to air transportation, see Laker Airways Ltd. v. Sabena, Belgian World Airlines & KLM Royal Dutch Airlines, 731 F.2d 909 (D.C. Cir. 1984). 53 See generally, GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS (3rd ed. 1996). 54 See id. at 491. 55 See id. at 1-5.

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A. Legislative Jurisdiction 1. The United Domains of Marieca The determination of whether or not ITLOS is vested with legislative jurisdiction over our hypothetical dispute between Marieca and Napaj calls for affirmative answers to two separate queries. First, is ITLOS empowered to settle this dispute? And second, must ITLOS renounce its jurisdiction in the face of competing claims by a GATT/WTO Panel? However, in order to answer the first question it is necessary to ascertain some relevant facts about driftnet fishing. “Driftnet fishing” or “drift-netting” is a particularly harmful form of commercial net fishing.56 This form of commercial net fishing often leads to a catch rate that exceeds the breeding capability of many species that are caught and killed by it. In the ten years in which they were used prior to the moratorium, driftnets were responsible for the near collapse of the Albacore Tuna fishery in the South Pacific, and contributed to the serious decline of the North American Salmon fishery.57 In view of these findings, the General Assembly of the United Nations recommended a moratorium on the use of large-scale pelagic driftnets in high seas fishing.58

56

See LAKSHMAN D. GURUSWAMY, ET AL., INTERNATIONAL ENVIRONMENTAL LAW 747 (2d ed., 1999): [Driftnet fishing] is to be distinguished from “setnet fishing,” which relies on fish swimming into nets and . . . can be made to isolate the particular species they are intended to catch. Driftnets which are suspended in the water like giant curtains and strung out as a wall for many miles drift across the open ocean and indiscriminately catch everything in their path. A singe boat . . . can have up to 40 miles of such nets to a depth of 48 feet in a single positioning. Typically, several vessels of a driftnet fleet will work together to fish in this manner. . . . In any given fishing season . . . up to 22,500 miles of deep nets drift through the waters of the Pacific and Indian oceans each night-enough to stretch more than once around the Earth. Driftnet fishing . . . is sometimes called “wall of death fishing” because it kills most living things in its path. Whatever they catch, driftnets kill or maim. Marine creatures in search of food and lured by the fish already caught in the net, swim or dive into the webbing where they become entangled. If they do not drown or manage to escape, they may suffer for several months before dying from injury, starvation or both. 57 See id. at 748. See also Resolution on Large-Scale Pelagic Driftnet Fishing and its Impact on Living Marine Resources of the World’s Oceans and Seas, U.N. Doc. A/RES/44/225 (1989), 29 I.L.M. 1555, at 4(b) [hereinafter 1989 U.N. Driftnet Resolution]; Resolution on Large-Scale Pelagic Driftnet Fishing and its Impact on Living Marine Resources of the World’s Oceans and Seas, U.N. Doc. A/RES/44/215 (1991), 31 I.L.M. 241. This view has been challenged by others as ignoring the scientific evidence; see e.g., William T. Burke et al., United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management, 25 OCEAN DEV. & INT’L L. 127, 128 (1994). 58 See 1989 U.N. Driftnet Resolution, supra note 57, at 242. AND WORLD ORDER

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The SFSA embodies a cluster of general principles for the conservation and management of straddling and highly migratory species.59 Furthermore, Article 5(f) specifically obliges States to: [M]inimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species . . . and to the extent practicable . . . the development and use of selective, environmentally safer and cost effective fishing gear and techniques.

It is difficult to argue that drift net fishing does not contravene this section. Under article 30 of the SFSA, ITLOS is required to apply the relevant provision of UNCLOS. There are numerous provision of UNCLOS that are relevant to driftnet fishing. UNCLOS obligates signatories to cooperate with others to conserve marine resources60 and to contribute and exchange scientific information, catch and effort-related statistics, as well as other data regarding conservation of stocks on the high seas.61 More importantly UNCLOS institutes a duty to take measures “[d]esigned on the best scientific evidence available to the states concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield as qualified by relevant environmental and economic factors”62 and to observe treaty obligations.63 Marieca is not a party to UNCLOS, but article 30(1) of SFSA specifically states that the dispute settlement provisions of UNCLOS apply to the SFSA parties regardless of whether they are parties to UNCLOS.64 Moreover, in the Southern Bluefin Tuna Case65 the Ad Hoc Arbitral Tribunal—that otherwise appeared to be unfavorable to the assertion of jurisdiction—specifically stated that the parties could have invoked the dispute settlement provisions of UNCLOS if they had both been parties to SFSA.66 The second question salient to legislative jurisdiction is whether ITLOS must renounce its jurisdiction in the face of competing claims by a GATT/WTO 59

See SFSA, supra note 30, at arts. 5, 6, & 7. See UNCLOS, supra note 24, at art. 118. 61 See id. at art 119(2). 62 See id. at art. 119(1)(a). 63 See id. at art. 116. 64 See SFSA, supra note 30, at art. 30(1); see also supra note 38 (quoting text of art. 30(1)). 65 Arbitral Tribunal Constituted Under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS): Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 39 I.L.M. 1359 (2000) [hereinafter Bluefin Tuna Case]. 66 The Arbitral Tribunal observed, “[W]here States intend UNCLOS procedures of peaceful settlement to govern, they so provide, notably in the [1995 SFSA]. If this Tribunal were to find that UNCLOS Part XV overrides the specific terms of article 16 of the [Bluefin Convention], it would profoundly disturb the host of dispute settlement provisions in treaties—whether antedating or postdating UNCLOS—that relate to matters embraced by UNCLOS.” Id. at 1378. 60

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Panel. This necessitates an analysis of relevant provisions of UNCLOS and SFSA. A cluster of UNCLOS provisions merit special attention: articles 280, 281, 282 and 311(3). We begin with Articles 280 and 281 because of the peculiar interpretation given them in the Bluefin Tuna case. In that case Australia, New Zealand and Japan signed a trilateral convention (Convention for the Conservation of Southern Bluefin Tuna, hereinafter Bluefin Convention)67 to implement UNCLOS. The Bluefin Convention allocated a quota of allowable catch to each party. Australia and New Zealand alleged that Japan had exceeded its quota by employing “research fishing.” After fruitless negotiations to settle the dispute Australia and New Zealand resorted to the dispute resolution procedures of UNCLOS. In the exercise of their choice of forum under article 287, the parties had opted for an Arbitral Tribunal rather than the full 21 judge ITLOS panel. Recognizing the delay in setting up such tribunals, UNCLOS empowers ITLOS to grant provisional measures.68 Australia and New Zealand successfully invoked these provisions and obtained a provisional measure from ITLOS banning the Japanese practices of “research fishing” that had led to the violation of its quota. The duly constituted Arbitral Tribunal ruled, however, that the dispute settlement provisions of the Bluefin Convention, and not UNCLOS, governed the dispute. According to the Arbitral Tribunal, the dispute resolution provisions of the Bluefin Convention excluded compulsory proceedings under UNCLOS.69 In the logic of the Arbitral Tribunal, the Bluefin Convention had rejected compulsory jurisdiction as article 16(3) allows only for consensual, not compulsory arbitration.70 Accordingly, it held that compulsory adjudication under UNCLOS was unavailable to the parties. The Arbitral Tribunal examined article 286 which provides, “Subject to section 3, any dispute concerning the implementation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.”71 The Arbitral Tribunal was of the view that article 286 must be read in the “qualifying context” of “article 281(1) as well as articles 279 and 280.”72 Under article 281(1), if State parties to a dispute concerning the interpretation or application of UNCLOS have agreed to attempt settlement of the dispute through “a peaceful means of their own choice,” the procedures of Part XV of UNCLOS apply only where (a) no settlement has been reached by recourse to 67

Convention for the Conservation of Southern Bluefin Tuna, May 10, 1993, Austl.N.Z.-Japan, (hereinafter “Bluefin Convention”). 68 See UNCLOS, supra note 24, at Art. 290. 69 Bluefin Tuna Case, supra note 65, at 1389, ¶ 57. 70 Id. at 1389, ¶ 55-7. 71 See UNCLOS, supra note 24, at art. 286, XV, § 2 (dealing with compulsory procedures entailing binding decisions). 72 Bluefin Tuna Case, supra note 65, at 1388, ¶ 53.

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such means and (b) the agreement between the parties “does not exclude any further procedure.”73 The Arbitral Tribunal first found that no settlement had been reached by recourse to peaceful means under article 281(1),74 but went on to hold that the second requirement of article 281(1) was not met. The Arbitral Tribunal held that the Bluefin Convention, specifically article 16, constituted a “peaceful means of their own choice” for the parties within the meaning of article 281(1). It phrased the justification for this finding as follows: [B]ecause the Parties to this dispute . . . are the same Parties grappling not with two separate disputes but with what in fact is a single dispute arising under both Conventions. To find that, in this case, there is a dispute actually arising under UNCLOS which is distinct from the dispute that arose under the CCSBT [Bluefin Convention] would be artificial.75

This second requirement of 282(1) stipulates that the compulsory dispute resolution provisions of UNCLOS will not apply if the agreement between the parties excludes “any further procedure.” The Arbitral Tribunal was of the curious opinion that the terms of article 16(2) of the Bluefin Convention were determinative of the jurisdictional issue, despite its earlier dicta that the provisions of article 16 “do not expressly and in so many words exclude the applicability of any procedure, including the [compulsory procedures of UNCLOS].”76 It opined that article 16(2), by providing for other methods of dispute settlement, had excluded UNCLOS by implication. But this interpretation of the Arbitral Tribunal skewers the meaning and intent of article 16(2). As we shall see, such other methods of dispute settlement only apply where UNCLOS does not govern. Moreover, the decision can also be distinguished on the basis of its rather singular factual setting, as well as its irrelevance to the sort of interjurisdictional conflicts being addressed in this article. A finding crucial to the logic of the Arbitral Tribunal was its determination that the situation presented only a single dispute arising under both Conventions rather than two separate disputes alleging different breaches of treaty law. As the Bluefin Convention was essentially the progeny of UNCLOS, designed to implement its principles and procedures in regards to a specific setting, the issue of over-fishing fell within the jurisdictional ambit of two treaties enacted to pursue the same normative goals and objectives. By contrast, when dealing with disputes that do not arise under familial treaties, but instead arise under treaties addressing distinct and different subject areas, tribunals will almost invariably assert jurisdiction over the cause of action or dispute arising under the provisions of their respective constituent treaties. Consequently, the institutional concerns involved in a 73

See UNCLOS, supra note 24, at art. 281(1). Bluefin Tuna Case, supra note 65, at 1389, ¶ 55. 75 Id. at 1388, ¶ 54. 76 Id. at 1389 ¶ 56. 74

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jurisdictional dispute between ITLOS and the DSB would be very different from those presented by the Bluefin Tuna case. Be this as it may, it is necessary to point to the errors of the Arbitral Tribunal leading to its assertion that “UNCLOS falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions.”77 It is also important to demonstrate why the Tribunal’s interpretation of articles 280 and 281 should not have the effect of emasculating the compulsory dispute resolution provisions under Part XV of UNCLOS. To begin with, articles 280 and 281 cover a different type of factual situation than is dealt with by article 282. According to article 282: If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.78

The section refers to how UNCLOS interfaces with past agreements. Since article 282 deals with previously entered into agreements, or treaties agreed to prior to the dispute, articles 280 and 281 must be confined to ad hoc arrangements made after a dispute arises. Quite simply, they are inapplicable to other treaties which are dealt with under article 282. Instead they provide opportunities for parties confronted with a dispute to agree upon other procedures of their own choice. It is difficult to imagine the circumstances in which an aggrieved party will relinquish its right to compulsory judicial settlement, but this door is left open by 280 and 281. The dispute in the Bluefin Tuna case, however, involved another treaty and should have been decided under 282. In light of this analysis, the interpretation of articles 280 and 281 by the Arbitral Tribunal is clearly incorrect. UNCLOS specifically provides for other treaties under article 282, not 280 or 281 as erroneously concluded by the Arbitral Tribunal. The Arbitral Tribunal apparently acknowledged the flaws in its arguments by adding a rider that: The Tribunal does not exclude the possibility that there might be instances in which the conduct of a State Party to UNCLOS and to a fisheries treaty implementing it would be so egregious, and risk consequences of such gravity, that a Tribunal might find that the obligations of UNCLOS provide a basis for jurisdiction, having particular regard to the provisions of article 300 of UNCLOS.79

77

See UNCLOS, supra note 24, at art. 282. (emphasis added). Id. (emphasis added). 79 Bluefin Tuna Case, supra note 65, at 1391, ¶ 64. Article 300 of UNCLOS provides, “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Con78

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Unfortunately, this exception makes nonsense of the Arbitral Tribunal’s earlier conclusion that article 16(1) of the Bluefin Convention excluded further proceedings under UNCLOS. If, as the Arbitral Tribunal concluded, article 16(2) expunged UNCLOS jurisdiction, then on what basis consistent with the Arbitral Tribunal’s reasoning might it be resuscitated? In the absence of a broad, all-purpose umbrella clause in UNCLOS permitting the reassertion of such jurisdiction, the Arbitral Tribunal stretches its own legal credulity in concluding that article 300 permits such jurisdiction. Article 300 of UNCLOS deals with abuse of rights, and clearly is inapplicable where the right asserted is one that the parties specifically negotiated for the purpose of avoiding UNCLOS jurisdiction. The reliance on such a right is not an abuse, but an affirmation of a right intended to be exercised by the parties. Sadly, it seems that having placed itself in an untenable position, the Arbitral Tribunal sought to extricate itself by grasping at straws. Another key element in article 282 is that any alternative dispute resolution procedure, set out in an earlier agreement, should entail a binding decision. Our hypothetical, therefore, raises questions pertaining to the binding character of DSB judicial decisions. A brief comparison of the procedural rules relevant to ITLOS and the DSB is helpful to answering this question. According to article 296 of UNCLOS, all decisions of an UNCLOS court or tribunal (including ITLOS) are final without any other intervening procedures. On the other hand, the final decisions of a DSB must be formally adopted by all member of GATT/WTO, and can be rendered ineffective by a negative consensus of the DSB. Given these facts, it is arguable that GATT/WTO does not entail binding decisions of the kind contemplated by article 282. Perhaps more importantly, UNCLOS jurisdiction may be overridden only if a cognate environmental treaty regulates the dispute. Article 282 would apply, for example, if the facts of the dispute were governed by an earlier conservation or environmental treaty on the conservation of fish. It would not apply to a pure trade dispute, over which GATT/WTO exercises jurisdiction, or to an environmental trade dispute with ramifications, over which GATT/WTO may purport to exercise jurisdiction. The thrust of this argument is borne out by article 311(3) which explicitly disallows UNCLOS parties from entering into future agreements that are incompatible with the “effective execution of the object and purpose” of UNCLOS or derogate from its “basic principles.” The need for article 282 to be interpreted in light of the environmental objectives of UNCLOS is confirmed, inter alia, by article 311(3), 237 and 197. Article 197 illustrates how UNCLOS is interlocked with other treaties. It directs that: States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and vention in a manner which would not constitute an abuse of right.” UNCLOS, supra note 24.

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elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.80

When article 197 is read in conjunction with article 237, UNCLOS’ jurisdictional reach becomes abundantly clear. Article 237 deals with obligations under other conventions that protect and preserve the environment and it explains that the provisions of UNCLOS itself are: [W]ithout prejudice to the specific obligations assumed by states under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this convention.81

Having made this point, article 237 goes on to clarify that “[s]pecific obligations assumed by States . . . should . . . be carried out in a manner consistent with the general principles and objectives of this Convention.”82 It is also worth noting that article 237 covers both past and future agreements, and holds such agreements should be implemented in a manner consistent with UNCLOS’ general principles. As such, one may reasonably conclude that the treaties referred to in article 282 are cognate or familial environmental treaties that are consistent with the general principles of UNCLOS—not unrelated treaties such as GATT/WTO, which takes trade liberalization rather than environmental protection as its topical focus. To return to the treaty regime implicated by our hypothetical, the importance of this normative propinquity is accentuated by the SFSA, which states the following with respect to a tribunal or court adjudicating disputes under its provisions: [Courts] shall apply the relevant provisions of the Convention, of this Agreement and of any subregional, regional or global fisheries agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law not incompatible with the Convention, with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stock concerned.

Moreover, article 311(2) clearly stipulates that the rights of parties under other (past) agreements will be altered only to the extent that they are compatible with it and do not affect the rights and duties of other parties under UNCLOS. The primacy of UNCLOS over future agreements is unequivocally affirmed in article 311(3)—a non-derogation clause—which restricts future 80

See UNCLOS, supra note 24. Id. 82 Id. 81

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agreements to those that are not incompatible with the effective execution of the object and purpose of UNCLOS. The eminent jurist Shabtai Rosenne argues that article 311 is a rare example of a treaty obligation so precisely worded that it may nullify a conflicting later treaty such as GATT/WTO.83 This essay endorses Rosenne’s closely-knit argument.84 As we have seen, marine environmental protection is a basic principle and objective of UNCLOS and can be achieved only if so recognized by the judicial tribunals that interpret UNCLOS. The GATT/WTO dispute settlement provisions, which do not recognize this principle, cannot be allowed to defeat progress toward its attainment. By contrast, the Arbitral tribunal seriously misreads the interface of UNCLOS with other treaties by relegating UNCLOS to a deferential position. But, as we have seen above, UNCLOS is decidedly assertive about its primacy over other treaties. 2. Napaj In the years following World War II, GATT, and its successor organization, the WTO, have aspired to be the sole arbiter of all disputes relating to international trade; and have attempted to ensure all trade related disputes are settled under the GATT/WTO jurisprudential canopy. Until 1994, however, the decisions of the prevailing panel system required affirmative approval by the GATT, and were subject to single member veto power. Judicial hegemony was greatly advanced by the 1994 Understanding on the Settlement of Disputes (DSU)85 which established a more conventionally judicial dispute settlement system in contrast to the earlier, less binding and more consensus oriented system that prevailed under the GATT. The DSU ensures that all dispute settlement procedures under the GATT, the Subsidies Code and a variety of other trade related agreements (Covered Agreements),86 are brought within a single dispute resolution process overseen by the Dispute Settlement Body (DSB).87 If parties are unable to nego83

SHABATAI ROSENNE, BREACH OF TREATY 93 (1985). Id. at 85-6. Rosenne’s argument, at its core, is that article 311 expresses both a substantive primary obligation—other treaties must be consistent with the objectives and principles of UNCLOS—and a secondary obligation dealing with the consequences of its breach. This secondary obligation nullifies any violation of, or derogation from, the primary obligations. Therefore, no treaty containing such provisions can attain primacy over UNCLOS. 85 See GATT 1994 & DSU, supra note 25. 86 See DSU, supra note 25. 87 See id. at art. 2. This ends the potential for forum shopping that existed within the old GATT. The heart of the new system is the DSB which is authorized to establish panels, adopt panel and appellate reports, maintain surveillance of implementation of rulings and recommendations and authorize retaliatory measures in cases where states do not implement panel recommendations. See generally, GATT 1994, supra note 25, at Annex II. Although more judicial than GATT, under the DSB it is legally possible, though politically difficult, to countermand the WTO procedures at every critical stage in the dispute resolution process. There is no affirmative approval requirement, or a single member 84

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tiate a consensual settlement of their dispute, a DSB panel is formed to hear the case. The findings of the panel, subject to appeal, are accepted by the DSB and considered binding on the parties.88 On the facts presented by our hypothetical, the DSB clearly possesses legislative jurisdiction over the dispute. We now turn to the question of whether that jurisdiction should be exercised.

B. Judicial Jurisdiction Under what circumstance should a court clothed with legislative jurisdiction exercise its judicial jurisdiction? A protean welter of conflicts of law theories attempt to articulate the restraining or constraining principles that should guide a court in deciding whether or not to exercise its judicial jurisdiction.89 Among the themes taken up by these theories are vested rights, 90 interest analysis,91 comparative impairment,92 a better law approach,93 the most significant relationship94 and comity.95 It is not necessary to choose between these theories as they can be distilled, in the final analysis, to require simply that courts find a functional basis for exercising their judicial jurisdiction in a manner that is both politically fair96 and reasonable.97 veto power, as existed under the old GATT procedures. However, each step in the process of setting up panels, along with their adoption and implementation, can be countermanded by a negative consensus decision by the DSB. See DSU, supra note 25. For additional commentary on DSB procedures, see supra note 9 and accompanying text; infra notes 88 & 148 and accompanying text. 88 The dispute settlement procedure is activated by a request from a member state whereupon the DSB, in the absence of a consensus decision not to do so, establishes a well-qualified panel to hear the case. The panel examines the matter in light of the relevant provisions of the covered agreements cited by the parties to the dispute. After careful consideration, the panel submits its findings in a report to the DSB. This report will be adopted by the DSB unless: (1) a party to the dispute formally appeals the panel decision, or (2) the DSB decides by consensus not to adopt the report. Where there is an appeal, and the Appellate Body upholds the legal findings and conclusions of the panel, its report shall be adopted by the DSB—unless the DSB decides by consensus not to adopt the decision. For additional commentary on DSB procedures, see supra notes 40 & 87, as well as accompanying text; infra note 148 and accompanying text. 89 See LEA BRILMAYER, CONFLICT OF LAWS 1-125 (1995). 90 See, e.g., JOSEPH BEALE, A TREATISE ON THE CONFLICT OF LAWS (1935). 91 See, e.g., BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS (1963). 92 See e.g., William Baxter, Choice of Law and the Federal System, 16 STAN. L. REV. 1 (1963). 93 Advocated in Robert Leflar, Conflicts Law: More on Choice Influencing Considerations, 54 CAL. L. REV. 1584 (1966). 94 See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS §6 (1971). 95 See, e.g., Joel R. Paul, Comity in International Law, 32 HARV. INT’L. L. J. 1 (1991). See also infra notes 107-10 and accompanying text. 96 See BRILMAYER, supra note 89, at 236-37.

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Judge Fitzmaurice’s separate opinion in the Barcelona Traction case reflects this view: [I]nternational law does not impose hard and fast rules on States delimiting spheres of national jurisdiction. . . . It does however . . . involve for every State an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by its courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by another state.98

The Restatement Third lists a number of factors that might guide courts in determining what is fair and reasonable.99 These principles and rules could be adapted by the Tribunal in deciding whether or not to exercise jurisdiction in the hypothetical case under discussion. There is, moreover, a substantial body of doctrine and case law dealing with the exercise of judicial jurisdiction that must form part of this analysis. Where a national court decides to exercise it judicial jurisdiction and apply the laws of jurisdiction, it may forbid a litigant from doing that which is permitted or even required by the laws of another state.100 This is a drastic power that has been recognized by both international and national law as requiring some normative control—it is a power that ought not to be left to the unfettered liberty or unrestricted discretion of international tribunals. These normative controls of fairness and reasonableness will now be considered.

C. Fairness and Reasonableness In his illuminating study of cases dealing with international conflicts of laws, Lowenfeld reveals that the domestic tribunals of nation states do not always act in a manner rigidly protective of their national jurisdiction.101 To demonstrate his

97

See RESTATEMENT (THIRD) OF CONFLICTS OF LAWS at § 403(1) (1987). See Barcelona Traction, Light & Power Company Case (Belgium v. Spain), 1970 I.C.J. 3, 105. 99 These factors include: (a) the link of the activity to the territory of the regulating state; (b) connections, such as nationality, residence, or economic activity; (c) the character of the activity to be regulated and its importance to the regulating state; (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international, political, legal, or economic system; (f) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state. See RESTATEMENT (THIRD) OF CONFLICTS OF LAWS § 403(2) (1987). 100 MICHAEL AKEHURST, MODERN INTRODUCTION TO INTERNATIONAL LAW, 167-69 (1997). 101 See LOWENFELD, supra note 51, at 88. 98

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point, Lowenfeld analyzed Laker Airways v. Pan American,102 a case which concerned two English parties, British Airways and Freddie Laker. At one point in the Laker case there was an initial action pending in the U.S., a suit to enjoin that action pending in the U.K.,103 and an anti-anti suit injunction pending in the U.S.104 However the House of Lords, circumventing the applicability of a British statute relied upon by the British government, determined that the case should be heard in the U.S.105 Pursuant to his review of a number of cases involving the exercise of judicial jurisdiction, Lowenfeld concludes that a consensus is emerging about the relevant criteria for determining jurisdiction. He sees courts in different countries exercising judgments that are not only acceptable by their own states’ standards, but acceptable to the standards of the international community as well.106 Among the tools used by courts to avoid and resolve jurisdictional conflicts, the following four are particularly applicable and potentially useful to avoiding and resolving such conflicts at the international level: comity, forum non conveniens, choice of law, and abstention. With specific focus paid to the difficulties presented by our hypothetical, the following discussion analyzes the potential utility of these traditionally domestic judicial tools in the context of jurisdictional conflicts between international judicial bodies. The principles of fairness and reasonableness are expressed in the operation of a number of different legal concepts, among which comity, forum non conveniens and choice of law are of particular importance to a primary thesis of this essay: If UNCLOS Tribunals are perceived as issuing fair, reasonable and principled decisions, and not as outcome-determinative forums incorrigibly wedded to the normative agenda of a particular legal regime, we have reason to expect the international community, as well as the constituent and institutional components of the GATT/WTO regime, will honor their judgments. It is thus critically important that UNCLOS tribunals expressly predicate their decisions on those legal sources perceived as necessary to a fair and reasonable decision by the parties and the international community. It is also essential that UNCLOS tribunals expressly acknowledge the criteria and rational on which their decisions to exercise or decline to exercise judicial jurisdiction are based. 1. Comity Comity is an umbrella concept, broadly interpreted and applied in a wide variety of circumstances. Among the welter of definitions accorded comity, it has variously been defined as the basis of international law, a synonym for private international law, a rule of choice of law jurisprudence, courtesy, politeness, good102

See British Airways Board v. Laker Airways Ltd., (1983) 3 W.L.R. 544 (C.A). Id. 104 See Laker Airways, Ltd.v. Pan American World Airways, 559 F. Supp. 1124 (D.D.C. 1983). 105 See British Airways Board v. Laker Airways, Ltd. (1985) A.C. 58 (H.L.E). See generally, LOWENFELD, supra note 51, at 5-14. 106 See LOWENFELD, supra note 51, at 79-80. 103

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will between sovereigns, expediency, necessity, and reciprocity.107 The usage afforded comity in this article is intentionally broad and imprecise. The exercise of judicial jurisdiction is discretionary. Within the confines of this prudential purgatory bright line rules, being inapplicable, will shed very little light on the question of what a court should do. As used in this article, comity is a discretionary and informal protocol by which courts may limit or constrain the number and impact of conflicts that arise between themselves. The informal considerations of comity not only regard decisions to exercise jurisdiction over a claim, but choice of law decisions and decisions regarding competing foreign, domestic and institutional interests. When put to use in this manner, comity can helpfully attenuate both the likelihood and impact of jurisdictional conflicts between competing international forums, as well as mediate between the differences inherent in various legal systems. In the context of state actors and their relation to one another, comity is often conceived of as a way to balance the needs of one sovereign to regulate its internal affairs with the needs of other sovereigns to engage in similar regulation.108 This article adopts the view that comity blurs the lines that divide public and private international law,109 and seeks to adapt and apply the concept of comity, as defined in the well know case of Hilton v. Guyot,110 to the relations of competing international organizations. When this definition is adapted and transcribed to intergovernmental organizations comity can be defined as neither a matter of absolute obligation, on the one hand, not or mere courtesy and good will, upon the other. Rather comity is the recognition that one intergovernmental tribunal allows to the jurisdiction of another, having regard both to international duty and convenience, and to the rights of its own parties, or of other community interests protected by its constitutive treaty. There can be little doubt that both ITLOS and a DSB panel, informed by the principles of comity, will need to fairly and carefully consider how it should or should not exercise its jurisdiction. 2. Forum non conveniens The doctrine of forum non conveniens was succinctly described by Paxton Blair in his classic article as “the discretionary power of a court to decline to exercise a possessed jurisdiction whenever it appears that the cause before it may be more appropriately tried elsewhere.”111 The rationale for the doctrine was explicated by Lord Shaw in a decision of the House of Lords (U.K): 107

See Paul, supra note 95, at 3-4. See Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349,1354 (6th Cir.1992). 109 See Paul, supra note 95, at 77. 110 See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). That definition read: “Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of it own citizens or of other persons who are under the protection of its laws.” Id. 111 See Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM. L. REV. 1 (1929). 108

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[I]f in the whole circumstances of the case it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum . . . then the doctrine of forum non conveniens is properly applied.112

An UNCLOS Tribunal must consider whether it is in fact an appropriate forum. Forum non conveniens is premised on convenience, and it may be invoked to deny judicial jurisdiction even if the tribunal might claim that its assumption of legislative jurisdiction was fair and reasonable. It is conceivable, therefore, that a UNCLOS Tribunal possessed of legislative jurisdiction may find that the application of this doctrine requires it to decline judicial jurisdiction in favor of a more suitable GATT/WTO Panel that is substantially more convenient or appropriate.113 On the facts of our hypothetical is it possible the UNCLOS Tribunal might find the GATT/WTO Panel to be a more suitable forum? The result would depend on the particular facts of each individual dispute, and the facts of the instant hypothetical are not strikingly demonstrative of a conclusion that the case could be more conveniently tried elsewhere. While there may be a number of reasons for invoking the doctrine of forum non conveniens in disputes involving domestic courts,114 it would be very difficult to show that one international tribunal is more convenient than another. The difficulties confronted by litigants in domestic courts do not often exist at the international level as there litigants frequently face a level playing field in terms of their ability to litigate in any of the implicated forums. While an international forum might certainly be closer to one country than another, in this age of mass air transit geographical proximity is

112 Societe du Gas de Paris v. Societe Anonyme de Navigation “Les Armateurs Francais” (1926) Sess. Cas. (H.L.). 113 See BORN, supra note 53, at 289-318. 114 First, where the parties are from two different countries, one party may enjoy clear advantages in litigating the case in his/her own domestic forum as against a foreign court for obvious economic, cultural, social and legal reasons. Second, even where parties are from the same country, as in the Laker litigation, (see supra notes 84-87 and accompanying text) the substantive, procedural and evidentiary laws in a foreign forum may be more favorable to one litigant for reasons of substantive law, pertaining for example to damages. Apart from substantive rules, there may be differences in procedural rules applicable, for example, to the service of summons, the enforcement of judgments, and the awarding of costs. Furthermore, evidentiary rules pertaining to the burden of proof and offering of evidence, can be quite different. Third, proximity to witnesses and resources may make one forum less expensive than another. Fourth, there may be linguistic and cultural hurdles that make one forum preferable to another. Fifth, one tribunal may be willing to assert jurisdiction over parties, in situations where another would not. Finally, forum non conveniens is not limited to the parties and may be invoked by the court itself for various public policy reasons (i.e. that domestic courts should not be choked with foreign actions, or that the taxpayers of one country should not bear the costs of litigation instituted by foreigners). See generally BORN, supra note 53, at 289-320.

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unlikely to play a significant role in an international court’s decision over whether or not to exercise its judicial jurisdiction. 3. Choice of Law Another question relates to the choice of law. We have seen above that UNCLOS is considerably more inclusive than GATT/WTO and can apply any law that is not contrary to the provisions of UNCLOS. Many proponents of free trade contend that the interests pursued by GATT/WTO are not antithetical to environmental protection.115 If that is indeed the case, an UNCLOS tribunal can take account of GATT law when formulating its holding in a case involving that legal regime. Unlike the GATT/WTO, which is prohibited from considering international environmental laws, UNCLOS tribunals116 can utilize the law of GATT/WTO so long as it is consistent with UNCLOS.117 By bringing trade law within their purview, UNCLOS tribunals will emerge as international forums in which cases involving both trade and the environment can be heard and decided fairly, reasonably and according to comity. 4. Abstention The evolving doctrine of abstention in the United States also presents a potentially helpful method for avoiding and resolving jurisdictional conflicts that arise between international tribunals. While some authorities assert that Federal courts have a virtually unflagging obligation to exercise the jurisdiction authority conferred upon them,118 this inflexible presumption is changing. As evidenced in the 115

See e.g., Sabrina Shaw, Trade and Environment: The Post-Singapore WTO Agenda, 6 REV. OF EUROPEAN COMMUNITY AND INT’L ENVIRON. L 105, 106 (1997). This is also the assumption behind the Report (1996) of the Committee on Trade and the Environment (CTE), Document WT/CTE/ 1, 12 Nov. 1996. 116 See supra notes 80-84 and accompanying text. Regarding the possibility that recent DSB cases evidence a less restrictive approach to choice of law decisions, see infra notes 190-209 and accompanying text. For relevant commentary on DSB procedures, see supra notes 29, 40, 87-88 and accompanying text; infra notes 148, 151 & 178, as well as accompanying text. 117 UNCLOS, supra note 24 infra, at arts. 237 & 293. 118 AMERICAN JURISPRUDENCE §§ 1233-1236 (2d ed. 2001) (dealing with issue of international abstention). The Supreme Court has promulgated four doctrines that address the relationship between federal and state courts. Three of these doctrines were established in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Younger v. Harris. 401 U.S. 37 (1971). The doctrines promulgated in these cases are collectively known as the abstention doctrines, and take as their purpose the resolution of conflicts between the federal and state governments. The fourth doctrine was promulgated in Colorado River, 424 U.S. 800 (1976). Some courts and commentators do not consider the Colorado River doctrine to be a form of abstention, but rather a doctrine with a completely different justification. Id. at 813-17. However, no clear consensus exists regarding this terminological minutia—a number of courts and commentators include Colorado River in the list of abstention doctrines. See Ash v. Richard J. Lynch & Co., 644 F.Supp. 315, 317 (E.D.N.Y.1986); Committee on Federal Courts

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growing body of U.S. federal court abstention decisions, federal courts in a variety of private international disputes have abstained from exercising jurisdiction over a case in the interests of prudence and justice. Federal courts have begun to fashion principles that guide courts’ actions in cases of concurrent jurisdiction between a federal court and the court of a foreign nation.119 One approach has taken the criteria enumerated in the well known Colorado River case and applied them to the international context.120 Another line of international abstention of the New York State Bar Association, Report on the Abstention Doctrine: The Consequences of Federal Court Deference to State Court Proceedings, 122 F.R.D. 89, 93 (1988). Regardless of whether we agree to call it an abstention doctrine, the functional effect of Colorado River is quite similar to that of the Younger abstention doctrine. Colorado River permits a federal court to dismiss or stay a case over which it has jurisdiction in favor of a parallel lawsuit in state court, even if the state court action was filed after the federal action. According to the Pullman abstention doctrine, if a case filed in federal court involves both a federal constitutional issue and a state law question whose resolution may preclude the need to adjudicate the federal question, the federal court should abstain until a state court has resolved the state issue. Pullman, 312 U.S. at 500-01. The Buford abstention doctrine requires a federal court to dismiss a case when hearing the issue would interfere with a complex state regulatory scheme regarding an area in which a state court or agency has special expertise, or in which the state itself has an important state interest. Burford, 319 U.S. at 318-22, 333-34. The Younger abstention doctrine was established when the Supreme Court held that a federal court lacked the power to enjoin a state criminal prosecution. Younger, 401 U.S. at 37. Younger abstention holds that when a state files a regulatory, criminal or quasi-criminal action, in state court against a private defendant, the defendant may not ask a federal court to enjoin the state proceeding. The doctrine is designed to protect the state’s interest in enforcing its own criminal laws and civil regulations. Id. at 43-44. 119 Turner Entertainment Co. v. Degeto Film GmbH (CA11 Ga) 25 F.3d 1512 (11th Cir. 1994). The Turner court also held that factors of international comity, fairness to litigants, and judicial efficiency, required the court to defer to a prior German judgment. See id. at 1523. 120 See Colorado River Water Conservancy District v. United States, 424 U.S. 800 (1976). In one recent case, Euromarket Designs, Inc. v. Crate & Barrel Ltd., Euromarket Designs, Inc., 96 F. Supp. 2d 924 (N.D. Ill. 2000), an Illinois-based company sued an Irish retailer for trademark violation under the Lanham Act 15 U.S.C. §§ 1114, 1125 (2002) and for violation of the Illinois Uniform Deceptive Practices Act, 815 ILL. COMP, Stat. 510/2 (2002) based on use of its name, not only in advertisements, but also on a website. The Illinois plaintiff owned federal trademark and service marks and some foreign registrations for the marks, including registrations in Ireland, the U.K., and the EU. It also maintained an interactive website, crateandbarrel.com. The Irish retailer, with one shop in Dublin, had created and registered a website, crateandbarrel-ie.com. The Irish defendant challenged subject matter and personal jurisdiction, and in the alternative asked the court to stay the Illinois proceedings in light of pending litigation against it in both the U.K. and Ireland. The district court denied all motions, including that for a stay, finding that the parallel proceedings did not conflict. “A judgment in one forum may or may not raise issues of res judicata, because although the same parties are involved, different laws are being applied in all three forums.” Id. at 845. The court utilized an abstention analysis

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cases, developed in the Southern District of New York, applies a similar set of principles with a clearer emphasis on the concerns of international comity implicated by the exercise of jurisdiction.121 As these two sets of principles overlap to a large extent, by taking the two approaches together courts have sought to fashion principles that will promote three readily identifiable goals in the area of concurrent international jurisdiction: (1) a proper level of respect for the acts of fellow sovereign nations—a concern we have dealt with under the rubric of comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources.122 What these cases illustrate is the extent to which courts will defer to others in foreign countries rather than assert some kind of national judicial suzerainty. The application of these principles and doctrines would enable competing tribunals to avoid conflict; and there is reason to hope that conflict will be avoided in many cases.

IV. Legitimacy But what if both the UNCLOS Tribunal and the GATT/WTO Panel assumed and exercised jurisdiction, and after a balanced judicial hearing where neither deferred to the other, the UNCLOS Tribunal ruled in favor of Marieca while the GATT/WTO Panel ruled for Napaj? Both countries, and the international community, will be confronted with two legal orders embodying rules that call for compliance. Once the need for compliance is accepted, and the two orders canin determining whether to stay the action that was based upon the U.S. Supreme Court’s decision in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). That decision itself was derived from the Supreme Court’s earlier Colorado River opinion which established the analysis for a federal court to abstain in purely domestic litigation for “wise judicial administration.” 424 U.S. 818. Transposing the domestic abstention doctrine to international litigation, the Euromarket Designs, Inc. court reviewed the significant factors: inconvenience of the forum, avoidance of piecemeal litigation, order of filing, whether federal law provides the “rule of decision,” the inadequacy of the other forum to protect the party’s rights, U.S. interests in adjudicating the dispute, and international comity. Weighing heavily in favor of the court’s refusal to stay its hand was the determination that this was a separate claim in each jurisdiction resting on each forum’s trademark laws: “[T]he claims of the Lanham Act and the Illinois Uniform Deceptive Trade Practices Act violations are not before the Irish and British courts, making them inadequate forums in which to decide these claims.” 96 F. Supp. 2d at 944. Adding the international aspect to its analysis, the court relied heavily on the Laker opinion (731 F.2d 909), and emphasized that concurrent jurisdiction here does not entail conflicting jurisdiction since each court is considering its own trademark laws. 121 Caspian Invest., Ltd. v. Viacom Holdings, Ltd., 770 F. Supp. 880 (S.D.N.Y. 1991); Ronar, Inc. v. Wallace, 649 F. Supp. 310 (S.D.N.Y. 1986); Continental Time Corp. v. Swiss Credit Bank, 543 F. Supp. 408 (S.D.N.Y. 1982). 122 Turner Entertainment Co. v. Degeto Film GmbH (CA11 Ga) 25 F.3d 1512 (11th Cir. 1994).

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not be reconciled with each other, there remains no alternative but to comply with one. Such a predicament calls for a choice of law, and this article argues that such a choice will depend on a rule of recognition based on legitimacy. We are considering a new predicament, apprehended but not yet encountered, in which a decision needs to be made as to which of two judicial orders, issued by lawfully created tribunals, ought to be implemented. The problem is that compliance with one necessarily involves non-compliance with the other. Because both orders cannot be implemented a question arises as to which of these two orders should be implemented. This article will argue that answers to this question depend on the answers given to another question: Which of the two orders is the more legitimate? In order to determine the answer to this question the concept of recognition needs to be canvassed.

A. Recognition The doctrines and rules traversing the recognition of States and governments enjoy a long lineage in international law.123 At one stage it was mooted that governments that came to power without elections or by extra constitutional means should not be recognized.124 Such an idea resonates in some kind of legitimacy, but that idea soon gave way to the concept of recognition based on effective control. But, the concept of legitimacy advance in this article in not grounded in state recognition. It is instead derived from HLA Hart’s “rule of recognition.” In his canonical treatise on The Concept of Law125 Hart argued that primitive legal communities are governed by primary rules of obligation that do not form a legal system, but remain a set of separate standards. These primary rules suffer from three main defects: they are uncertain, static and inefficient. They are uncertain because when doubts arise as to the nature or scope of the rule there will be no procedure for settling this doubt either by reference to an authoritative text or the ruling of an official whose declarations are authoritative. They are static because there is no law making body or agency to change the rules, adapt them to new situations, or create new ones. They are inefficient because there is no agency specially empowered to “ascertain finally, and authoritatively, the fact of violation.”126 Hart reasoned that “[T]he simplest form of remedy for uncertainty of the regime of primary rules is the introduction of what we shall call a ‘rule of recognition.’ This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the

123

See generally IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 85-104 (5th ed. 1998). 124 BURNS H. WESTON, ET AL., INTERNATIONAL LAW AND WORLD ORDER 266 (3d ed. 1997). 125 H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994). 126 Id. at 93.

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group to be supported by the social pressure it exerts.”127 Hart further argued that this rule of recognition could be determined by reference to some general characteristic possessed by the primary rule.128 Admittedly, Hart was not dealing with how to choose between two judicial decisions.129 Nonetheless, the general analytic proposed by him allows of adaptation to the conflicting primary rules contained in international judicial decisions. Applying Hart, the rule of recognition applicable to conflicting judicial orders could be based on the concept of legitimacy, and the decision as to which of two judicial orders should be implemented will then turn on which one’s application was legitimate. This brings up the question as to what we mean by legitimacy. Thomas Franck, who has written extensively on the nature and role of legitimacy in international law,130 argues that one attribute of legitimacy “derives from a perception on the part of those to whom it is addressed that it has come into being with right process.”131 By this he means the process of discourse, reasoning and negotiation.132 Habermas adds a substantive component to this by referring to discursive validation rooted in reasoning that produces a rational result. Frank further reasons that “[e]ach rule has an inherent pull power that is independent of the circumstances in which it is exerted, and that varies from rule to rule. This pull power is its index of legitimacy.”133 He argues that the legitimacy of a given rule depends upon its “inherent capacity . . . to exert pressure on states to comply.”134 Understood in this sense, a given legal artifact possesses certain attributes that give it force. These attributes may be determined with reference both to the artifact as well as factors external to it. The force consists of its impact upon the actors within the international legal system. The strength of its attributes—what is often called its “compliance-pull”—is the measure of its legitimacy. The stronger its attraction, the more states are compelled to ensure their behavior complies with its terms. Habermas arrives at the same conclusion and notes that:

127

Id. at 94. Id. at 95. 129 See generally id. 130 See, e.g., Franck, supra note 17, at 726. 131 Id. at 706. (emphasis in original). 132 THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 14 (1995). 133 Franck, supra note 17, at 712. 134 Id. at 713. For a criticism of Franck’s concept of legitimacy, see Anne L. Herbert, Cooperation in International Relations: A Comparison of Keohane, Haas and Franck, 14 BERKELEY J. INT’L L. 222 (1996) (discussing Franck’s concept of legitimacy as expounded in his 1990 book, “The Power of Legitimacy Among Nations”). The author asserts that “[d]espite Franck’s analytical aspirations, the end product of his work does not bring us closer to having an explanatory theory of rule-legitimacy in international relations. Rather, we are left with a creative and, at times, thought-provoking work of ideological prescription. Id. at 234. 128

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Legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just. . . . This definition highlights the fact that legitimacy is a contestable validity claim. . . . Thus, historically as well as analytically, the concept is used above all in situations in which the legitimacy of an order is disputed, in which, as we say, legitimation problems arise. One side denies, the other asserts legitimacy.135

This is particularly true for international courts. When issuing a decision where no clear consensus as to the controlling law exists, the legitimacy of the court’s decision is secured in large part through its persuasive force. Indeed, as “international institutions exert only a tenuous hold on actors . . . maintaining legitimacy and the appearance of legitimacy is crucial to their success.”136 The legitimacy of a given legal norm depends upon the perception of the relevant actors that the norm, whether it is a rule, decision-making process, or the decision itself, is indeed legitimate. What then are the criteria or rules by which legitimacy may be recognized? The first is integrity or coherence based on Ronald Dworkin’s jurisprudential concept of law as integrity.

B. Integrity In essence, Dworkin argues that a genuine political community is based on shared expectations, and is governed by common principles and not just the specific rules emanating from its institutions.137 These shared principles underpin law, politics and morality.138 They form the integrity of law. In difficult cases the task of a judge is to find a coherent set of principles that will justify his/her decision.139 The search for the right decision in a community is not limited to or exhausted by the particular decisions of any political or legal institution, but depends instead on the underlying scheme of principles those decisions presuppose and endorse.140 While Dworkin addressed domestic legal systems, Franck has adapted Dworkin’s jurisprudence to international law, first by approximating integrity to coherence, and second by finding that the international community of nations is in fact a genuine political community.141 Building upon this assumption of community, Franck defines coherence as the extent to which the rule is con135

JURGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF SOCIETY 178-79 (T. McCarthy trans. 1979). 136 Laurence R. Helfer and Graeme B. Dinwoodie, Designing Non-National Systems:The Case of the Uniform Domain Name Dispute Resolution Policy, 43 WM. & MARY L. REV. 141, 146 (2001). 137 RONALD DWORKIN, LAW’S EMPIRE 211 (1986). 138 Id. at 96-98. 139 Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1098-99 (1972). 140 DWORKIN, supra note 137, at 211. 141 THOMAS FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 181-82 (1990).

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nected internally among the several parts and purposes of the rule, and externally between one rule and other rules through shares principles. He concludes that: “This connectedness between rules united by underlying principles . . . manifests the existence of an underlying rule skein which connects disparate ad hoc arrangements into a network of rules ‘governing’ a community of states.”142 Consequently, Franck points out, a rule purporting to govern state behavior is more likely to be perceived as legitimate if it is grounded in a coherent principle than if it is not, and therefore will exert a stronger pull to compliance.143 This article adopts Franck’s conclusions and affirms that jurisprudential legitimacy inheres to a tribunal that takes a comprehensive rather than a fragmented view of international law and society. When deciding which of two tribunal decisions deserve recognition, legitimacy must surely attach to the tribunal that takes cognizance of the broader canvas of international law. Such an inclusive tribunal understands that differing legal regimes within international law are interwoven and form a relatively coherent whole. By contrast, a confined tribunal takes a piecemeal view, and perceives international law as composed of discrete components. Consequently, such a tribunal confines itself to a restricted segment of the law and ignores the integrity of international law lying outside its restricted mandate, as well as the underlying principles that give coherence to these rules. We have noted the extent to which the international community has committed itself to a variety of worthy economic, political, social, and environmental goals. We may view this as form of interest group politics in which the dynamic interaction of the various interests works toward the realization of the greater good of the global community as a whole. Such a phenomenon should be viewed as a testament to the growing maturity of the international community of nations and civil societies. The conflict we perceive between them is not substantially different to what we see in domestic contexts, and their goals, objectives, and interests need to be balanced. When states have obligated themselves to legal regimes of conflicting normative commitments—as is increasingly the case—it makes profoundly little sense to see this conflict as one in which one regime must triumph over another. It is only by judiciously balancing the interests involved, ever cautious against normative defaults in favor of one regime or the other, that we will ensure the purposes of both regimes are achieved. The importance of international judicial bodies in this delicate calculus cannot be overstated. They must play a role akin to that of a musical conductor, ensuring the grand symphony of our collective normative commitments is not usurped by a single section of the orchestral voice. To assume this role, however, international judicial bodies must be capable of deciding a case by applying the rules set out in its constitutive treaty with reference to the broader corpus of international law created by other relevant treaty regimes. 142 143

Id. at 180-81. Id. at 175.

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Ensuring that judicial bodies consider the entire corpus of international law implicated by a case does not entail the expectation that different judicial bodies would arrive at the same decision.144 The attendant expectation is instead that judicial bodies will endeavor to objectively determine all the applicable law, arrive at a balance between conflicts presented by various regimes, and expressly articulate their reasons for arriving at this balance in their decisions. Determining the proper structural relations between various international legal regimes and judicial bodies is necessarily a contextual process. A process of continual assessment will need to inform the extent to which courts to synthesize the law of various legal regimes in formulating decisions. Indeed, the end result of this process will not be “a mere demonstration of what follows from a given purpose but a reorganization and clarification of the purposes that constituted the starting point of inquiry.”145 Both international lawmakers and courts, when determining this relation, will need to confront and assess a multitude of highly dynamical factors. In the words of Professor Fuller, We might envision this kind of situation by thinking of a spider web. A pull on one strand will distribute the tensions after a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different complicated pattern of tensions.146

The difficulty of this task, and the epistemic shortcomings we face in attempting to execute it, is hardly a reason to allow international legal regimes to continue functioning as highly discrete, insular fiefdoms engaged in skirmishes with one another for normative dominion. The consequences of failing to undertake this task are considerable—if we continue to allow international legal regimes to speak past and against one another, the cost will not be to jurisprudential metaphysics, but to the future quality of the global community of nations and international civil society.

C. Core, not Penumbra Another criterion in determining legitimacy is the extent to which the dispute falls within the core and not the penumbra of an international organization. Scholars who have addressed the allocation of jurisdiction among international organizations have suggested that the concept of “primary” or core coverage 144 As Jonathan Charney has observed, “[A]n increase in the number of international law tribunals, absent an effective hierarchical system that would produce definitive answers to differences over norms of international law, means that complete uniformity of decisions is impossible.” Charney, supra note 3, at 699. 145 Lon Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 381 (1978). 146 Id. at 395.

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could be analogous to territoriality in jurisdictional questions.147 In practice this entails ascertaining whether a trade environment dispute is essentially a trade dispute or an environmental one instead. If at its core the issue is about trade, then legitimacy must be given to the DSB. If on the other hand the issue is essentially about conservation, ITLOS emerges as the legitimate institution. This is undoubtedly a difficult question of mixed fact and law, but there may be cases in which it could be applied. If, for example, the only question is whether a prohibition on imports, ostensibly imposed for spurious environmental reasons, is really a disguised method of curtailing imports, the case belongs to the DSB. Deciding this question may, of course, entail a preliminary inquiry, and this kind of inquiry may become a necessary corollary to the adjudication of jurisdictional questions.

D. Enforcement The enforcement of any judicial order will remain a perennial problem under the present consensual system of international law. Even if a country were to obtain an order from either UNCLOS or GATT/WTO, there is no guarantee that the countries involved would enforce it. While UNCLOS judicial bodies exercise compulsory and binding jurisdictional authority over States that have voluntarily conscripted themselves to its institutional authority, UNCLOS lacks a non-compliance mechanism to implement its judicial decrees. Other than expressions of disapproval and international censure, a State flagrantly disregarding the terms of a judicial order issued by an UNCLOS tribunal does not face a battery of non-compliance provisions, institutional threats, or inducements to comply. Such is not the case with GATT/WTO. Within the regime of international law, GATT/WTO is singular in its ability to ensure compliance with the orders issued by its judicial components. Were the DBS to issue a decree declaring as illegal a country’s restrictions on the importation of genetically modified Wilderbeast meat, a refusal to comply with that order would likely result in either tariffs being placed on their own goods seeking entrance into the markets of other countries or a compensatory award made against them by the DSB per the prevailing country’s request.148 147

Joel P. Trachtman, Institutional Linkage: Transcending “Trade and . . .” 96 AM. J. INT’L L. 77, 90 (2002). On the question of linkages, see also Philip M. Nichols, Corruption in the World Trade Organization: Discerning the Limits of the World Trade Organization, 28 N.Y.U. J. INT’L L. & POL. 711, 714 (1996). 148 Under the WTO’s dispute settlement provisions, unless the DSB indicates a consensus to the contrary, judgments rendered by a WTO panel or the Appellate Body against a country are considered as adopted by the DSB. And while such judgments are customarily articulated as “recommendations,” if the losing party fails to comply with the judgment within a “reasonable time”—usually set at fifteen months—the winning party is eligible to seek the punitive measures mentioned above. Again, without consensus on the part of the DSB to disallow these punitive measures, the DSB is deemed to have appro-

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In the case of our hypothetical, in a best-case scenario for Marieca UNCLOS assumes and exercises jurisdiction while the DSB declines to do so. Legally, the parties are obliged to implement the decisions of the Tribunal under article 296 UNCLOS, according to which a decision “shall be final and shall be complied with by all the parties.” But, there is no enforcement agency that secures such compliance. In the last analysis, it must be left to the UNCLOS Tribunal to convince all parties that it is a fair and reasonable judicial tribunal which has given them a satisfactory and balanced judicial hearing. The parties should come away from such proceedings, not with a sense of grievance, but of having received justice in an orderly and impartially administered judicial forum. The onus will be upon the UNCLOS Tribunal to demonstrate these attributes. If it does, added psychological weight will be given to the order, and it will be enforced; if it fails, it will not. By a parity of reasoning the same would apply to a best-case scenario for Napaj, where the GATT/WTO assumes and exercises jurisdiction and UNCLOS declines to do so. But, where both tribunals exercise judicial jurisdiction, to what extent might the absence of non-compliance provisions in UNCLOS, in contrast to the presence of non-compliance provisions in GATT/WTO, act as a factor favoring the greater legitimacy of the DSB? This question is better answered by identifying the fact that we are now dealing with the legitimacy, not the effectiveness, of a judicial order. While legitimacy is different from effectiveness, it merits mention that the effectiveness of a legal regime, and the extent to which it may be implemented, is not dependent upon the strength of its non-compliance provisions.149 The implementation and effectiveness of international obligations and commitments are dependent upon a bundle of other factors. First, prominent among these factors is the nature of the problem and the obligation. Simpler and less onerous obligations admit of more ready and effective implementation. Second, configurations of power may shape effective implementation. Powerful states may use inducements, threats or promises to secure effective implementation. Conversely, such pressures cannot readily be employed against powerful states. Similarly, powerful non-governmental organizations (NGO’s) like Greenpeace could be a factor in implementation. Third, well-designed international institutions that foster better reporting, review, and cooperation may help to secure more effective implementation. So too might linkages with other issues. It has been argued that Soviet implementation of clean air accords were prompted by the greater foreign

bated their employment. For additional commentary on DSB procedures, see supra notes 29, 40 & 87-88 and accompanying text. For a comparison with UNCLOS procedures, see supra notes 80-84, 115-17; infra notes 151-62 and accompanying text. Regarding the possibility that recent DSB cases evidence a less insular interpretational attitude toward choice of law decisions, see infra notes 191-209. 149 This paragraph relies on DAVID G. VICTOR ET AL., IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS 3-15 (1999).

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policy gains of improved east west relations.150 And finally, strong public opinion may push nations toward better implementation. More importantly, legitimacy cannot be equated with effective implementation. While effective implementation may offer additional evidence of legitimacy where other criteria, as discussed above, are fulfilled, effective implementation is neither a cardinal nor even a necessary criterion of legitimacy. Furthermore, were ITLOS or judicial bodies established under UNCLOS to presumptively defer to the DSB because of it better enforcement mechanisms, they would essentially be abdicating their responsibility to superintend UNCLOS and its satellite treaties. Were the past jurisprudence of the DSB less obviously outcome determinative in a way highly favorable to trade interests at the expense of environmental concerns, such jurisdictional relinquishment by UNCLOS judicial bodies would constitute less of an abdication of their superintending duties. Yet given the jurisprudential history of the DSB in regard to environmental concerns, allowing it to render decisions over cases involving the rights and obligations of parties under UNCLOS and its satellite treaties effectively undermines the normative commitments these treaties seek to actualize. In a forum incapable or unwilling to consider all the applicable law of presented by a case, the presence of enforcement mechanisms only exacerbates the harm it could cause.

V. The Deficiencies OF THE DSB A. Lack of Integrity or Coherence First, DSB tribunals are arguably less fair because they are precluded from taking cognizance of international environmental laws, even though these laws constitute an important segment of international law.151 By contrast, UNCLOS Tribunals “shall apply . . . other rules of international law not incompatible with this Convention.”152 This formulation is more receptive to international law, and less restrictive of non-UNCLOS law than the comparable provisions of GATT/WTO which assiduously and systematically exclude all but GATT law. The law applied by GATT/WTO is confined to that found in its own treaties and does not recognize any broader corpus of general international law, let alone

150

Id. at 12-13. Additionally, a DSB tribunal that examines a broader corpus of international law than that which is expressly authorized by its instituting treaty has arguably exceeded the scope of authority granted to it by that treaty. See supra note 29, 40 & 148; infra note 178 and accompanying text. For a comparison with UNCLOS procedures, see supra notes 8084, 115-17; infra notes 151-62 and accompanying text. Regarding the possibility that recent DSB cases evidence a less insular interpretational approach toward choice of law decisions, see infra notes 191-209. 152 UNCLOS, supra note 24, at art. 293(1). 151

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IEL.153 Since environmental protection never was and is not a GATT/WTO objective, the GATT and its Covered Agreements do not deal with environmental protection apart from the exceptions found in GATT 1947, article XX. It is abundantly clear that the GATT/WTO Panels and Appellate bodies must restrict themselves to the Understanding, and the Covered Agreements154 which, moreover, should be interpreted and construed strictly in a way that does not add to or diminish the rights and obligations provided by the treaties.155 UNCLOS, in contrast to the GATT, tries in various provisions to accommodate international law. The general provision dealing with its relation to other conventions (art. 311), the non-derogation clause notwithstanding, tries to reconcile, and not repudiate, the rights and obligations arising from other agreements. Consequently, UNCLOS Tribunals can take cognizance of GATT law, while their GATT counterparts are unable to take cognizance of UNCLOS. Despite a rhetorical reference to environmental protection in the hortatory preamble of the WTO,156 the GATT/WTO calls for the advance of free trade effectively unrestrained by environmental constraints. Such an advancement of free trade, impervious to environmental concerns, has been justified by the GATT Secretariat on the grounds that economic growth is a pre-condition to environmental protection.157 The underlying premise of this assertion is that any environmental damage caused along the way can be remedied once economic prosperity is achieved. Such a thesis stands unproven. In fact, a prominent example—the United States’ experience of ex post cleaning up of toxic and hazardous waste sites—demonstrates the contrary. The United States is the most prosperous nation in the world and has spent many more billions of dollars cleaning up hazardous waste sites resulting from the lack of environmental regu-

153

See GATT 1994, supra note 25, at Annex II, arts. 3 & 1. See id. at arts. 3 & 4: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this understanding and under the covered agreements.” (emphasis added). See also id. at art. 5: “All solutions . . . shall be consistent with those agreements, and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.” (emphasis added). GATT 1994 Annex II, art. 7 deals with the terms of reference of Panels and confines them to “[t]he relevant provisions in any covered agreement or agreements cited by the parties to the dispute.” Id. GATT 1994, Annex II, art. 11 deals with the functions of panels and requires them to assess the “[a]pplicability of and conformity with the relevant covered agreements.” Id. It does not refer to any other laws or principles. 155 See id. at arts. 3 & 2. It states conclusively that “[r]ecommendations and ruling so the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.” Id. (emphasis added). 156 Marrakesh Agreement Establishing the World Trade Organization, preamble, LEGAL INSTRUMENTS—RESULTS OF THE URUGUAY ROUND VOL. 31; 33 I.L.M. 81 (1994). 157 GATT Secretariat, Trade and the Environment, Doc. 1529, at 18 (1992). 154

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lation than it would have done if the creation, and disposal, of hazardous wastes had been controlled by environmental regulations earlier in its history.158 In an apparently candid admission, the GATT secretariat has conceded that it is reasonable for concerned countries to seek to change the actions and policies of others that damage the global environment.159 Unfortunately, these countries are not permitted by GATT to bring about change by disallowing products of offending countries from entering their markets. In order to overcome GATT prohibitions against trade restrictions,160 it is necessary to find justification under GATT 1947, article XX, and its chapeau. The chapeau provides that: Subject to the requirement that such measures are not applied in a manner which could constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures. . . . The most important exceptions, found in paragraphs (b) & (g), allow restrictive measures that: (b) [are] necessary to protect human, animal or plant life or health . . . (g) relat[e] to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. . . . 161

There is an extensive jurisprudence dealing with the nature and ambit of these exceptions162 which cannot be explored fully in the context of this article. 158 The estimated cost of cleaning up a hazardous waste site in the United States runs between $21 million and $30 million. ENCYCLOPEDIA OF THE ENVIRONMENT 678-679 (Ruth A. Eban & William R. Eban eds., 1994). The U.S. Environmental Protection Agency has identified nearly 41,000 potentially hazardous waste sites across the country. COUNCIL ON ENVIRONMENTAL QUALITY: THE TWENTY-FIFTH ANNIVERSARY REPORT 365 (1996). The costs of building a new high tech, fully lined landfill designed to prevent leaching into groundwater, which will withstand severe weather and be equipped with modern monitoring equipment is far less. JOSEPH L. BAST, PETER J. HILL, & RICHARD C. RUE, ECO-SANITY 24-28 (1994). 159 GATT Secretariat, supra note 157, at 18. 160 See General Agreement on Tariffs and Trade, Oct. 30, 1947, Arts. XI and III, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter GATT 1947]. 161 Id. at art. XX (b) & (g). Additionally, two conditions must be satisfied before any exception can apply. First, the measure must not “constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.” Id. at art. XX. Second, the measure must not be a “disguised restriction on international trade.” Id. 162 See generally, Jagdish N. Bhagwati & Robert E. Hudec, Fair Trade and Harmonization: Prerequisite for Free Trade?, printed in LEGAL ANALYSIS, VOL. 2 at 57-174 (1996); Richard H. Steinberg, Trade—Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development, 91 AM. J. INT’L L. 231, 244 (1997); Thomas J. Schoenbaum, International Trade and Protection of the Environment: The

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Instead, this article takes a functional look at the application of these exceptions in three recent cases that offer a baseline for interpreting article XX exceptions.163 The very narrow grounds on which these decisions justify environmental action do not provide a satisfactory basis for ensuring environmental protection. The GATT Dispute Settlement Panel Report on U.S. Restrictions on Imports of Tuna (Tuna I)164 was a case in which the United States Marine Mammal Protection Act (MMPA)165 required the relevant authorities to ban the importation of yellow tuna that had been caught with nets that resulted in the killing of dolphins. After years of fruitless negotiation between the U.S. and Mexico to establish rules for dolphin mortality, the United States placed a total embargo on the importation of yellow tuna caught with dolphin-killing rather than dolphinfriendly nets.166 The GATT Panel held that the U.S. ban violated GATT and did not fall within the exceptions in article XX (b), (d) or (g). Three years after Tuna I, in U.S. Restrictions on Imports of Tuna (Tuna II)167 the European Economic Community challenged the secondary embargo provisions of the MMPA, which required any intermediary nation exporting yellow tuna to the United States to provide the relevant authorities with proof that such yellow tuna had not been caught with dolphin killing nets. Once again Continuing Search for Reconciliation, 91 AM J. INT’L L. 268, 269 (1997); John H. Jackson, World Trade Rules and Environmental Policies: Congruence or Conflict, 49 WASH. & LEE L. REV. 1227, 1239-42 (1992); Cynthia M. Mass, Note, Should the WTO Expand GATT Article XX: An Analysis of United States—Standards for Reformulated and Conventional Gasoline, 5 MINN. J. GLOBAL TRADE 381, 426-27 (1996); Chris Wold, Multilateral Environmental Agreements and the GATT: Conflict and Resolution?, 26 ENVT'L. L. 841, 854-61 (1996); Charles R. Fletcher, Greening World Trade: Reconciling GATT and Multilateral Environmental Agreements Within the Existing World Trade Regime, 5 J. TRANSNAT’L L. & POL’Y 341, 352-57 (1996); Kazumochi Kometani, Trade and Environment: How Should WTO Panels Review Environmental Regulations Under GATT Articles III and XX?, 16 NW. J. INT’L L. & BUS. 441, 466-76 (1996); Paul J. Yechout, Note, In the Wake of Tuna II: New Possibilities for GATT—Compliant Environmental Standards, 5 MINN. J. GLOBAL TRADE 247, 255-57, 264-68 (1996). 163 See GATT Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna, Aug. 16, 1991, 30 I.L.M. 1594 (1991) [hereinafter Tuna I]; United States Restrictions on Imports of Tuna, June 16, 1994, 33 I.L.M. 842 nn.145-48 (1994) [hereinafter Tuna II], available at 1994 WL 907620; GATT Dispute Panel Report on Regulation of Fuels and Fuel Additives C Standards for Reformulated and Conventional Gasoline, 35 I.L.M. 274 (1996) [hereinafter Venezuela Gasoline Decision]. 164 See Tuna I, supra note 163. 165 See 16 U.S.C. §§ 1361-1421 (West Supp. 1997). 166 See Jeffrey L. Dunoff, Reconciling International Trade with Preservation of the Global Commons: Can We Prosper and Protect, 49 WASH. & LEE L. REV. 1407, 1415-33 (1992). 167 See Tuna II, supra note 163.

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the GATT panel held against the United States. According to the Panel, such action was not “necessary” under article XX(b), and was not “primarily aimed at” the conservation of natural resources under article XX(g). The case U.S. Standards for Reformulated and Conventional Gasoline,168 was an appeal from a WTO Dispute Panel that Venezuela and Brazil successfully called upon to review pollution standards for gasoline imposed by the United States Environmental Protection Agency (EPA) under the Clean Air Act (CAA).169 The dispute revolved round whether domestic refiners were given an unfair and preferential advantage over foreign refiners in the formulation and setting of the standards.170 The Appellate Body ruled that the manner in which the United States determined the 1990 baselines, and the consequent pollution standards for gasoline under the CAA, could not be justified under GATT 1947, article XX (b), (d) and (g). In two of these three cases, the United States took action to protect the environment and did not argue that it was obliged to do so by treaty. In light of the apparently unilateral nature of the U.S. actions, a preliminary question is whether the GATT/WTO permits environmental action that has been authorized and mandated, though not obligated, by a multilateral treaty that did not include all GATT contractual parties.171 This question was in fact addressed in Tuna II.172 The U.S., while not claiming that its actions were obligated by CITES, did in fact offer treaty justification for its actions. It argued generally that its actions “were consistent with and directly furthered the objectives . . .”173 of CITES and other environmental treaties; 168

See Venezuela Gasoline Appeal, 35 I.L.M. 603 (1996). Clean Air Act, 42 U.S.C.A. § 7401- 7671(q) (1994) 170 See Venezuela Gasoline Decision, supra note 163. This report noted that the Panel’s task was to ensure that the provisions and objectives of the General Agreement were maintained, notwithstanding the desirability or necessity of the environmental objectives of the proposed legislation in dispute. Id. at § 7.1. In this case, Venezuela protested the United States restrictions on its importation of reformulated gasoline. Venezuela successfully claimed that the CAA was discriminatory because it forced foreign producers to meet United States refinery industry averages. Id. at § 6.15. 171 There would, of course, be no problem if the multilateral treaties included all GATT parties and was (a) entered into subsequent to GATT, or (b) was seen as a “lex specialis”—a specialist treaty. In both cases, such multilateral treaties would trump GATT. See Tuna II, supra note 163, at § 3.41. 172 In this case the European Union (EU) and the Netherlands successfully initiated GATT proceedings against the United States similar to Mexico’s suit against the United States in Tuna I. The EU claimed that the United States’ intermediary ban on indirect imports of tuna was hurting European fishing industries. The WTO panel concluded that “measures taken so as to force other countries to change their policies, and that were effective only if such changes occurred, could not be primarily aimed either at . . . rendering effective restriction on domestic production or consumption.” Tuna II, supra note 163, at § 5.27. 173 Id, at § 3.14. 169

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and more specifically, that they were authorized and empowered by CITES. According to the U.S.: All species of dolphins involved in the fishery of the eastern tropical Pacific were listed in CITES Appendix II. Moreover, while the United States was not obliged under CITES to adopt the measures at issue, CITES specifically provided for these measures in providing for “stricter domestic measures” in order to further the objectives of that agreement. The Unites States measures were stricter domestic measures, as explicitly contemplated under CITES, taken to protect species of dolphins that CITES protects. These measures were in addition to the restrictions on trade in specimens of the dolphins themselves that are required under CITES.174

Relying upon CITES and other international environmental treaties cited by it, the U.S. contended that these treaties should, according to international law, be taken into account as general or special rules for interpreting article XX of GATT.175 Further, the U.S. argued that the actions taken by the parties to these multilateral environmental treaties constituted “subsequent practice” under general international law, and article 31(3) (b) of the Vienna Convention on Treaties. The Panel made short shrift of these arguments, asserting that the CITES and the other environmental treaties were not subsequent agreements signed by all the parties to the GATT. With regard to the use of IEL agreements in the interpretation or application of article XX,176 the Panel bluntly declared that “they did not apply to the interpretation of the General Agreement or the application of its provisions. . . .”177 The Panel, by so holding, was acting in conformity with GATT law and jurisprudence. The recognition is that environmental treaties affect the interpretation or application of GATT and would thus require judicial law making that the GATT/WTO panels are forbidden from undertaking.178 It would, in any case, be a mistake to argue that unilateral decisions are more difficult to justify than those based on multilateral treaties179 because there is no distinction made in the 174 175

Id. The U.S. relied on arts. 31 & 32 of the Vienna Convention on the Law of Trea-

ties. 176

See Tuna II, supra note 163, at § 3.20. Id. at § 5.19. 178 For additional support on this point outside of this section, see supra notes 29, 40 & 87-88 and accompanying text. For additional comparisons with UNCLOS procedures, see supra notes 80-84, 115-17 & 151-62. Regarding the possibility that recent DSB cases evidence a less insular interpretational attitude toward choice of law decisions, see infra notes 191-209. 179 Any attempt to draw support for such a proposition from the Tuna II decision would be to misconstrue it. In light of its holding that it is not open to a country to take unilateral measures that force or cajole others into changing their domestic environmental 177

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language of GATT 1947, article XX between treaty and non-treaty justification. There are other ways in which GATT and the decisions of GATT/WTO tribunals can obstruct the implementation of environmental treaties. First, the word “necessary” (to protect human, animal or plant life and health) in article XX(b) has been restrictively interpreted180 to mean that a government must employ the measure that is the least GATT inconsistent. Even where a measure is required to protect human, animal or plant life or health, it may well be held to be “unnecessary” in the view of the GATT/WTO tribunal, if it determines that other measures, more consistent with GATT, were available. Import and export restrictions under CITES could well be struck down on the basis that they are not the least trade restricting measures available to the country concerned. Secondly, Tuna II interpreted “relating to” (the conservation of exhaustible natural resources) in GATT 1947, article XX(g) to allow extra-territorial conservation efforts which had been prohibited by Tuna I.181 However, the Appellate Body in the Venezuela Gasoline Appeal reconfirmed the rule asserted in Tuna II that such policies should be primarily aimed at the conservation of exhaustible natural resources,182 as determined by GATT/WTO. This means that a GATT/WTO tribunal can impugn any action taken under any IEL convention on the basis that the action is, in their view, not primarily aimed at conservation even if the concerned states assert a contrary view.

policies, it is a possible interpretation that such changes may be made by treaty. Consequently, action taken under treaty to implement agreed changes of domestic behavior may be justified under GATT/WTO. However, as we have seen, the Panel dispelled any such implication when it held that environmental treaties like CITES, that did not include all GATT parties, were irrelevant. 180 This happened in Tuna II, supra note 163, where the panel stated that the United States’ measures to protect dolphin life or health were not necessary because it failed a proportionality test, which requires the use of reasonable alternative measures not inconsistent with GATT. In the Venezuela Gasoline Decision, supra note 163, the United States argued that the non-degradation requirements of the United States Clean Air Act were “necessary to protect human health and the environment.” Id. at § 3.40. However, the WTO Panel, while noting that gasoline emissions are tied to human health, was more impressed by its finding that imported gasoline was accorded different treatment than United States gasoline, and held that the measures taken were not “necessary” to protect human, animal, or plant life or health. Id. at § 6.29. The Appellate Body did not deem it necessary to address this question in light of its ruling that the United States had not satisfied the requirements of the “chapeau,” or introductory clauses of article XX, because it had taken actions that constituted “unjustifiable discrimination” and a “disguised restriction” on international trade. Id. at § 6.11. 181 See Tuna I, supra note 163, at § 5.26. 182 See Venezuela Gasoline Appeal, supra note 168, at § 6.13; see also Tuna II, supra note 163, at § 3.52-3.

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Thirdly, GATT/WTO tribunals have assumed a disturbing interventionist character. Oblivious of their appellate status, they seem eager to override the judgment of sovereign nations with which they disagree, and make their own decisions on the facts. They seem unaware of judicial restraint, the need for deference to the decisions of national fact-finding bodies, or standards of review which restrain an appellate body from interfering in an executive action unless it is arbitrary, capricious or an abuse of discretion.183 In the case of United StatesImport Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp),184 the Appellate Body of the General Agreement on Tariffs and Trade’s (GATT’s) World Trade Organization (WTO)185 declared that actions taken by the United States to protect endangered sea turtles were illegal. The Appellate Body labored strenuously to draw a “line of equilibrium” between the rule of free trade and nondiscrimination created by the GATT on the one hand, and the exceptions

183

The Appellate Body in the Venezuela Gasoline Appeal freely dismissed the difficulties facing the EPA in collecting evidence from foreign countries in order to give foreign refineries individual baselines. See Venezuela Gasoline Appeal, supra note 168. There is recognition within trade circles of this problem. See generally, Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AM. J. INT’L L. 193 (1996). Unfortunately, these distinguished authors come to the curious conclusion that a GATT tribunal cannot be compared to a court or judicial forum reviewing administrative or executive actions in domestic law. Such a conclusion is at variance with the fundamental assumptions underlying any allocation of power in an undeveloped international legal order lacking compulsory jurisdiction. Where sovereign states allocate limited power to a functional international tribunal under GATT/WTO, such tribunals ought to be very sensitive to the demarcation of powers between sovereign states and international organizations. This should lead to greater, not less deference, to national decision-making. 184 World Trade Organization, Report of the Appellate Body, United States- Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, WT/DS58/AB/R, reprinted in 38 I.L.M. 118, 121 (1999) (adopted Nov. 6, 1998) [hereinafter US-Shrimp Appellate Body Report]. The Report of the Appellate Body is to be distinguished from the Panel Report of the same case. See World Trade Organization Dispute Panel Report on United States-Import Prohibition of Certain Shrimp and Shrimp Products, May 15, 1998, WT/DS58/R, reprinted in 37 I.L.M. 832 (1998) [hereinafter US-Shrimp WTO Panel Report]. For a more thorough discussion of this case, see Lakshman Guruswamy, The Annihilation of Sea Turtles: World Trade Organization Intransigence and U.S. Equivocation, 30 ENVTL. L. REP. 10261 (2000). 185 See GATT 1947, supra note 160. GATT 1947 was further modified, supplemented, and adopted as Annex 1A of the World Trade Organization Charter. The World Trade Organization was established by the Uruguay Round negotiations in 1994. See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round vol. 1 (1994), reprinted in 33 I.L.M. 1125 (1994).

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under article XX on the other.186 Having held that the actions of the United States fell within the exceptions to article XX, they struck down the U.S. certification program187 on the basis that the U.S. action amounted to “unjustifiable discrimination.” In doing so they failed to balance the sovereignty of a State with special reference to the reserved domain of treaty making and deference on the one hand against the limited powers conferred upon the GATT/WTO on the other hand. Their decision to draw just one line of equilibrium, without any mention or even awareness of their need to draw another, amounts to undisguised trespass into the reserved domain of States. Fourth, Tuna I reiterated the rule that GATT 1947, article XX could only be directed at products not at process or production methods.188 It concluded that measures aimed at reducing dolphin killing were a production method and thus were not covered by article XX(g). Finally, the Appellate Body in the Venezuela Gasoline Appeal created another formidable hurdle against States seeking to claim the environmental exemptions under article XX. It found that the burden placed on states that sought to come within article XX was not confined to satisfying the narrow health, environment, and natural resource exemptions found within paragraphs (a) to (j). After doing so, they had to further prove that the measures taken did not violate 186 US-Shrimp Appellate Body Report, supra note 184, ¶ 159. The Appellate Body held, “The task of interpreting and applying the chapeau is . . . essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception under article XX and the rights of the other Members under varying substantive provisions . . . .” Id. 187 There are six species of turtles present in U.S. waters that are protected by the Endangered Species Act (ESA). See 16 U.S.C. §§ 1531-1544, ELR Stat. ESA §§ 2-18. The Olive Ridley, Loggerhead, and Green turtles are classified as “threatened,” and the Hawksbill, Kemp Ridley, and Leatherback are listed as “endangered.” Id. In section 609 of the 1989 U.S. Departments of Commerce, Justice, and State Appropriations Bill, the U.S. Congress added a legislative note to ESA § 8 entitled “Conservation of Sea Turtles: Importation of Shrimp” (Section 609), which directed that the protection of these endangered turtles be extended on a worldwide basis. See Pub. L. No. 101-162, tit. VI, § 609, 103 Stat. 988, 1037-38 (1989) (codified as amended at 16 U.S.C.A. § 1537 (West Supp. 1999)). Toward this objective Section 609 required that two major procedural or implementing steps be taken. First, it called upon the U.S. Secretary of State to initiate bilateral and multilateral negotiations with foreign countries with a view to protecting sea turtles. Id. § 609(a). Second, it banned the importation of wild shrimp harvested with commercial fishing technology and established a certification procedure. No shrimp would be allowed into the United States unless the President certified annually that the nation concerned employed a regulatory program comparable to the United States and that the average rate of incidental takings of sea turtles in the course of shrimp harvesting was comparable to that of the United States, or that the harvesting techniques of a nation do not pose a threat of incidental takings of sea turtles. Id. § 609(b). 188 See Tuna I, supra note 163, at § 5.34.

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the “chapeau” (introductory or preambular provisions) of article XX which prohibit “arbitrary” or “unjustified” discrimination, or a “disguised restriction” of free trade. In holding that the United States had violated the chapeau, the Appellate Body demonstrated no hesitation in second guessing the judgment and overruling decisions and rules made by the United States Environmental Protection Agency, the executive or administrative agency that makes decisions affecting national environmental policy. In doing so, it showed scant regard for the ordinary and well recognized principles of deference accorded to the primary decision-maker.189

B. Interpretive Role of GATT/WTO Judges To begin, the DSU defines who may serve as a judge: “[p]ersons who have served on or presented a case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a Member.”190 It is striking that this list does not include anyone with qualifications outside the field of trade law, and automatically excludes anyone with expertise in international environmental law who does not have Article 8 qualifications as well. Article 3(2) of the DSU is an interesting provision that has all the hallmarks of an unresolved disagreement. It reiterates that the dispute settlement system should first, preserve the rights and obligations of Members under the Covered Agreements and second, clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.191 Having stated this, it proceeds immediately to attenuate future interpretation by prohibiting any tribunal from adding to or diminishing rights and obligations provided in the covered agreements.192 This flies in the face of judicial law making and assumes a set of precise, tailor made, pre-determined and inflexible rights and duties that can be mechanically dispensed without any judicial intervention.193

189

See Venezuela Gasoline Appeal, supra note 168. See GATT 1994, supra note 25, at Annex II, art. 8. 191 See id. 192 See id. 193 Apart from judicial interpretation, Art. IX(2) of the WTO Agreement allows for “interpretation” that does not “undermine the amendment provisions of Art. X,” provided it is agreed to by three quarters of the parties. However, the required three quarters majority renders this kind of interpretation impracticable, while any interpretation given is open to legal challenge as amounting to an amendment. See WTO Agreement, supra note 190

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Such an approach is untenable for a number of reasons. First, the DSU and the Covered Agreements were made by humans not gods, and cannot anticipate the multiplicity of contingencies and circumstance that could give rise to controversies about rights and duties. Second, the DSU and Covered Agreements cannot anticipate the law that should be applied in every situation. Each set of rights and duties ought to be applied to the particular variegated fact situation; the scope of each right and duty could not possibly be ordained in advance. That is why international instruments are couched in various degrees of generality and indeterminacy.194 Third, duties and rights are correlative concepts,195 but they are “institutions” and tools of judicial reasoning for deriving and assigning benefits and burdens. It has persuasively been argued that institutional concepts consist of three sets of rules: (1) a set of constitutive rules specifying situations to which they might be applied, (2) a set of rules specifying the legal consequences, and (3) terminative rules specifying outcomes.196 Each step involves judicial analysis, reasoning, discretion and power within a continuing time frame to ascertain the nature, scope and applicability of indeterminate rights and duties. The DSU attenuates judicial discretion, or freedom, to adapt the law to new situations. It defies reality by assuming that an initial expression of law in a treaty freezes both time and content. In fact, any expression of law is intended to be applied to future events over an indefinite period of time during which its initial meaning is subject to change. The customary international rules of interpretation, re-stated in the Vienna Convention of the Law of Treaties (Vienna Convention),197 assume there can be no omniscient expression of rights and obligations that can be applied automatically with dogmatic immutability. Instead, the Vienna Convention calls for any treaty to be interpreted according to its ordinary meaning in “[c]ontext and in the light of its object and purpose.” In addition to context, the Vienna Convention states that any applicable rules of international law should be taken into account.198 28; Michael Lennard, The World Trade Organization and Disputes Involving Multilateral Environmental Agreements, 5 EUR. ENVTL. L. REV. 305 (1996). 194 See HART, supra note 125, at 124-25. 195 See generally WESLEY HOHFELD, FUNDAMENTAL LEGAL CONCEPTS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS (1923). 196 See Neil MacCormick, Law as Institutional Fact, 90 LAW Q. REV. 102 (1974). 197 Vienna Convention on the Law of Treaties, May 23, 1969, arts. 31 & 32, 8 I.L.M. 679 (1988). 198 See id. at art. 31 & 3(c). The Appellate Body in the Venezuela Gasoline Appeal paid pro forma respect to GATT 1994 art. 3(2) and to the rules of interpretation in the Vienna Convention, which it correctly identified as forming part of customary law. Having suggested that GATT/WTO is not to be read in “clinical isolation from public international law,” it could not, however, escape the predicament that all its decisions should be

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The DSU has apparently rejected the Vienna Convention criteria by asserting that the rights and obligations set out in the covered agreements are sufficient for all purposes, and earlier references to rules of interpretation in the DSU must be understood as aspirational and cosmetic rather than obligatory. The GATT/WTO’s judicial system appears even more inward looking and blinkered when compared to International Court of Justice (ICJ) jurisprudence. ICJ decisions apply treaties, international custom, the general principles of law recognized by civilized nations, judicial decisions and the teachings of the publicists.199 The law applied by GATT/WTO is confined to its own agreements. A number of recent decisions handed down by the DSB may call this thesis into question. For instance, the WTO Panel in US-Shrimp, after noting that the 1992 Rio Declaration on Environment and Development “recognizes the right of States to design their own environmental policies on the basis of their particular environmental and developmental situations and responsibilities,” interpreted the Preamble to the WTO Agreement “[i]n this light . . . [to determine if it justified] interpreting article XX to allow a Member to condition access to its market for a given product on the adoption of certain conservation policies. . . .”200 The WTO Panel also held “that CITES, even though its object is to contribute to the protection of certain species, does not impose on its members specific methods of conservation such as [turtle excluder devices].”201 In its concluding remarks, the WTO Panel further noted that “we are bound to make findings on the basis of the existing norms, without prejudice to any potential developments in the relevant fora.”202 The Appellate Body of the WTO in the Beef Hormone case203 considered whether the precautionary principle was an established international law norm. The Beef Hormone dispute involved several European Community directives forbidding the importation of U.S. beef treated by natural and artificial growthenhancing hormones. While the European Community claimed that its directives met the SPS Agreement standards, the United States asserted that the European Community had not adduced any evidence to demonstrate the existence of a bona fide risk to human health from the use of the six hormones in question.204 One contention of the EC was that it was justified in banning U.S beef because of the precautionary principle. In addressing this argument both the Panel and subject to the GATT and the covered agreements. Venezuela Gasoline Appeal, supra note 168, at 621. 199 See Statute of the International Court of Justice, supra note 26, at art. 38. 200 U.S.-Shrimp WTO Panel Report, supra note 184, at ¶ 7.53. 201 Id. at ¶ 7.58. 202 Id. at ¶ 9.1. 203 WTO Appellate Body Report on EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/AB/R, available at http://www.wto.org/english/tratop_e/ dispu_e/ab_reports_e.htm (last visited January 29, 2004). 204 See id.

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Appellate Body examined the wider body of general international law, but expressed doubt as to whether the precautionary principle was in fact a principle of customary international law or a general principle of law under article 38(c) of the Statute of the International Court of Justice.205 These developments have led some commentators to claim that DSB tribunals should continue to look beyond WTO law because they are not selfcontained regimes.206 Others suggest that DSB is indeed authorized to take account of the broader corpus of international law.207 It is clear, however, from the Dispute Settlement Understanding that the DSB is disallowed from applying other treaty norms.208 The only concession to the integrity of law is that where interpreting WTO treaties the DSB can take into account other international law. But as we have seen this is at best a marginal recognition of international law, and cannot be interpreted as a mandate to nullify the other express provisions of the DSB. This was made manifest in the Beef Hormone case, where the Appellate Body, just like the lower WTO Panel, felt that the precautionary principle, even if proven to be a part of customary international law, could not override the explicit provisions of 5.1 and 5.2 of the SPS.209 It is for this reason that the Ministerial Declaration at Doha committed to negotiating changes in the DSU in so far as it related to multilateral environmental agreements (MEA’s) where parties to the WTO are also parties to the MEA. Many of the cases coming before the DSB do not fall under this category as the litigants are not parties to both GATT and an MEA. In sum, for the four reasons mentioned it could be argued that ITLOS should be treated as more legitimate than the DSB.

VI. Conclusion This article does not purport to comprehensively address the pros and cons of proliferating international tribunals. Rather, it has sought to address a more specific cluster of challenges implicated by potential jurisdictional conflicts between international judicial bodies. Unfortunately, there are no established or 205

Id. at ¶ 123. P. J. Kuyper, The Law of GATT as a Special Field of International Law, 1994 NETH Y. B. INT’L L. 227. 207 Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 AM J. INT’L L. 535 (2001). 208 See DSU, supra note 25, at arts. 3(2), 3(5), 7(1), 11 & 21(5). For additional commentary on DSB procedures, see supra notes 29, 40 & 87-88 and accompanying text. For a comparison with UNCLOS procedures, see supra notes 80-84, 115-17, 151-62 and accompanying text. 209 Id. at ¶¶ 120, 125. 206

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received rules of international law dealing with this challenge, and recourse must be made to the general principles of law provided in article 38(c) of the Statue of the ICJ. Drawing from conflict of laws principles, this article has suggested two ways forward. The first is preventive and attempts to avoid the problem. The second is remedial. It addresses the problem that has in fact materialized and suggests ways of dealing with it. While the first approach has suggested preventive measures based on the principles of fairness and reasonableness that might nip any looming problem in the bud, the second approach has offered an analytical compass for dealing with situations in which there are two conflicting orders. It is important to note that both legitimacy and the principles of fairness and reasonableness are concepts that pervade the entire analysis offered in this article. While this article has situated these concepts in different functional roles, they each present potentially helpful methods for addressing international jurisdictional conflicts at both the preventative and remedial stages of analysis. In conclusion, if the analytical compass offered by this article for dealing with jurisdictional conflicts between international tribunals is viewed as nothing more than a heuristic baseline, we have at least begun a discussion on how to address a new and significant dimension of international dispute resolution.

CHAPTER 14

The Law of the Sea Convention Ten Years after Entry into Force: Positive Developments and Reasons For Concern Tullio Treves

The United Nations Convention on the Law of the Sea1 was opened for signature on 10 December 1982 and entered into force on 16 November 1994. Over Twenty years after signature and ten years after entry into force, it is appropriate now to assess positive developments as well as to recognize reasons for concern.

I. Positive Developments Let us first consider positive developments. In comparison to other major treaties for the codification and progressive development of international law, the Convention has been a major success in terms of the number and quality of the parties it has attracted. The Convention has as of November 12, 2003, 145 ratifications or accessions, comprising more than two thirds of the existing States. States parties belong to all areas of the world. They include developed as well as developing States and coastal, maritime and land-locked States.

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D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 349-54. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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There is no doubt that the Convention has gained great authority as a guide for the behavior of States in maritime matters. Thus, the authority of the Convention as an instrument for establishing customary rules has been confirmed various times by decisions of international courts and tribunals. In a number of cases, States have followed the rules of the Convention even when it was not certain whether, in 1982, these rules corresponded to customary law. The Convention has shown from the outset that it is both strong and resilient. Its strength is evident in the fact that there is no serious questioning of its authority as the basic set of rules concerning the rights and obligations of States in matters related to the sea. Recent evidence of its authority are the provisions, contained in different forms in multilateral international agreements concluded after the 1982 Convention, according to which the terms of the new agreements are without prejudice to the rights, jurisdiction and duties of States under the Convention and must be interpreted and applied in the context of, and in a manner consistent with, the Convention. The Convention’s resilience is evident in States’ willingness to build upon it without questioning its authority, although they realized from the outset that it could not be considered perfect and complete. So it was that Part XI (on seabed mineral resources) was amended, before entry into force of the Convention, by the well-known Implementing Agreement of 1994. So also the brief and puzzling provisions of the Convention on straddling stocks and highly migratory fish stocks were elaborated and expanded, in light inter alia of recent developments in international environmental law, by the so-called Straddling Stocks Agreement of 1995. This latter agreement has entered into force recently and provided the basis for a regional development in the Convention on highly migratory fish stocks in Central and West Pacific, signed at Honolulu in 2000. Similarly, in an effort to develop the brief provisions on historical and archaeological objects, as well as to fill the gap in the Convention as regards such objects found on the continental shelf, an admittedly controversial Convention on underwater cultural heritage was adopted in 2001 within the framework of UNESCO. Contrary to the Implementing Agreement of 1994 which amends the Convention and becomes a necessary part of it (as States parties must, after its adoption, become parties at the same time to the Convention and to the Agreement), the Straddling Stocks Agreement, the Honolulu Convention, and the UNESCO Convention—as well as two recent multilateral conventions on fisheries, the FAO Compliance Agreement of 1993 and the Windhoek Convention of 2001— may be ratified or acceded to by States that are not parties to the 1982 Convention. This circumstance makes particularly significant, as regards the authority of the 1982 Convention, that clauses safeguarding rights and obligations under the Convention are found in all these texts. Another aspect of the 1982 Convention, which confirms its strength and resilience, is that this instrument is at the center of a network of institutions. The Convention presupposes a highly institutionalised world, and its terms encourage the development of international institutions. On one hand, the Convention gives new functions to existing institutions, such as, for example, to the International Maritime Organization regarding passage through straits, archipelagic sealanes, and removal (or non-removal) of abandoned and disused installations

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on the continental shelf. On the other hand, in complying with their obligations under the Convention, States parties have established a number of new institutions: the Meeting of States Parties itself, and the International Seabed Authority, the International Tribunal for the Law of the Sea, and the Commission on the Limits of the Continental Shelf. Through their participation in these institutions States parties have many opportunities to implement the provisions of the Convention in a cooperative way, to fill some of its gaps, and to clarify the constructive ambiguities the necessities of negotiation have compelled the contracting parties to leave in the text. Perhaps the most important of the positive developments, confirming the strength and resilience of the Convention, have been seen in the mechanism for the settlement of disputes. This mechanism, although with important limitations and exceptions, is compulsory. In other words, disputes concerning the interpretation or application of the Convention may be submitted by a single party, without the need to obtain the consent of the other, to a judge or arbitrator whose decision is binding. Since the entry into force of the Convention, a number of cases have been brought unilaterally, on the basis of the compulsory settlement clauses of the Convention, to the International Tribunal for the Law of the Sea or to Arbitral Tribunals set up under Annex VII of the Convention. Yet, the importance of the limitations to the scope of compulsory settlement also cannot be denied and was underlined in particular in the Arbitration award of 4 August 2000 in the Southern Bluefin Tuna case. It must be observed nonetheless, however, that when States parties have had the opportunity to add to the automatic limitations of article 297 “optional exceptions” through the written declarations envisaged in article 298, they have used that possibility very sparingly. Only about fifteen States have made such declarations, and in some cases they have not excluded all the categories of disputes listed in article 298. By abstaining from making the declarations under article 298, States parties have made important subjects, such as maritime boundary delimitation, enforcement activities in fishery matters, and military activities subject to compulsory adjudication in most cases. The mechanism for the settlement of disputes provided in the Convention has maintained its appeal in multilateral maritime negotiations held since the end of the Third U.N. Conference on the Law of the Sea. The Straddling Stocks Agreement in 1995, the Honolulu Convention in 2000, the Windhoek Convention in 2001 and the UNESCO Convention in 2001 have adopted articles according to which the provisions of the Law of the Sea Convention concerning the settlement of disputes can be resorted to in order to reach binding settlements of disputes concerning the interpretation or application of these Agreement and Conventions. The Straddling Stocks Agreement extends this possibility to the settlement of disputes arising from regional or sub-regional agreements concerning straddling or highly migratory fish stocks. Thus, all these recent multilateral instruments, and their contracting parties, together with the Law of the Sea Convention and its contracting parties, become intertwined in an increasingly a complex system. It seems important that the unifying element of this system is the mechanism for the settlement of disputes.

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II. Reasons for Concern Considering now some reasons for concern, we must acknowledge first of all, that progress towards universal participation in the Convention is still incomplete. Obviously, the most important missing State party is the United States. All friends of the Convention feel that participation by the United States, in light of the importance of this main actor in world politics, and also in light of the great contribution made by it to the shaping of the Convention, is long overdue and would be a decisive step towards the consolidation of the Convention as the basic set of rules on the law of the sea. The positive attitude of the Clinton Administration and now of the Bush Administration must be welcomed. As this volume goes to press, the Senate is considering giving its advice and consent to accession to the treaty. The hope may be expressed that not insubstantial obstacles in the Senate be overcome. Other important accessions are still missing. The most visible for many years was perhaps that of Canada, another protagonist of the Third U.N. Law of the Sea Conference, which acceded to the Convention in November of 2003 as this volume went to press. It may also be regretted that the few States which keep away from the Convention because of concerns relating to boundary disputes with neighbours have not yet recognized that, under the Convention, their situation, like that of any other State, is no worse that under customary law. While the concerns as regards participation in the Law of the Sea Convention, are real, they are not such as to make us doubt the positive role of the Convention in the world community. However, concerns are more substantial as regards participation in the Straddling Stocks Agreement. It is true that the Agreement entered into force only very recently. It is also true, however, that the most important long-distance fishing States, such as the Economic Community, Japan, and the Republic of Korea, have not, as yet, become parties; also, some important coastal States, such as Chile and Mexico, have expressed strong objections to the Agreement. This is a serious ground for concern, since the participation of both sides is necessary in order for the Agreement to achieve its purposes. When discussing multilateral instruments and a network of international institutions connected to such instruments, the main source of concern is, of course, unilateralism, the very phenomenon against whose destabilizing effects multilateral instruments and institutions are set up. Thus, if we look at domestic legislation adopted by States since 1982, we must recognize that the influence of the Convention in setting spatial as well as jurisdictional limits to coastal States’ claims is evident. Unilateralism has been contained. Most new legislation follows the pattern set by the Convention. Economic zones, archipelagic baselines, and contiguous zones have been adopted in compliance with the provisions of the Convention. In some cases previous excessive claims have been “rolled back”; in other cases States utilize only some of the rights recognized by the Convention. Unilateralism is not dead, however. Undeniably the limit of 200 miles set by the Convention as the external border of State jurisdiction in the economic zone, and consequently the freedoms of the high seas, are under attack. It is well known that a number of States have adopted unilateral legislation extending in

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various forms their jurisdiction over fishing activities conducted by foreign ships on high seas waters adjacent to their economic zone. These unilateral extensions (especially by Canada and some Latin-American States) have met strong reactions, bringing about, as a compromise, the Straddling Stocks Agreement that strengthens the flag States’ responsibilities and prescribes a cooperative approach for enforcement activities, which coastal States claimed to conduct unilaterally. However, as observed above, it is far from clear whether all unilateralist States (as well as all long distance fishing States) have been convinced that the compromise set out in the Straddling Stocks Agreement is acceptable. Trends towards the development of environmental protection measures have sometimes encouraged proposals for unilateral legislation, to be applied within the territorial sea and the exclusive economic zone, whose compatibility with rights enjoyed in such maritime zones by States different from the coastal States would be far from certain. These trends have sometimes emerged in developed States such as Germany and the United States, which are otherwise very careful not to jeopardize the balance of rights and duties of States in the various maritime zones set out in the Convention. Sometimes provisions whose compatibility with the Convention is highly debatable are set out in multilateral agreements concluded between countries with similar interests. A recent example, which is frequently quoted, is the socalled “Galapagos Agreement” of 2000, not yet in force. It concerns certain high seas fisheries and was negotiated, in isolation from other States interested in the fisheries, by a State that is party to the Convention and other three which are not. This form of multilateral unilateralism, which could also be called militant regionalism, has also met strong resistance.

III. Conclusion One cannot forget, nevertheless, that historically unilateralism has been one of the main engines, perhaps the main engine, of the development of the law of the sea. In a world where new needs emerge and where the law must evolve, unilateral initiatives cannot be branded as always bad, as always to be fought against. They must, nevertheless, be reconciled with the general obligation of cooperation which is part and parcel of modern international law and with the obligations of States parties to the Convention as well as the obligations of those States that are not parties to it under a customary law which the Convention strongly influences. A strong mechanism for the settlement of disputes and a strong reliance on courts and tribunals seems to be an important element in order to obtain such reconciliation in a way as smooth and non-conflictual as possible. As mentioned above, the Law of the Sea Convention, as well as the other multilateral instruments that complement it, do contain such a strong mechanism for the settlement of disputes. Strong reliance on it, especially on its compulsory facets, is just beginning. States are just beginning to realize that they are parties to instruments that can be used in ways that may make going to court on most ocean law matters a routine and undramatic event. It may be regretted that most States par-

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ties to the Convention have not yet fully reviewed the pros and cons of expressing a preference for permanent courts, at the International Court of Justice and the International Tribunal for the Law of the Sea, in lieu of arbitration tribunals. Such preference, which could be expressed with a declaration to be made under the Convention, and which a vast majority of States parties have so far abstained from making, would probably ensure a more consistent development of the law.

Part 5. The Ocean Environment

CHAPTER 15

The Evolution and International Acceptance of the Precautionary Principle Jon M. Van Dyke

During the past two decades, the precautionary principle has evolved from being a “soft law” “aspirational” goal to its present status as an authoritative norm recognized by governments and international organizations as a firm guide to activities affecting the environment. Although decisionmakers and commentators still disagree about the precise definition of this principle and how it should be applied to the wide variety of situations within its scope, it can no longer be ignored. Indeed, it is frequently the starting point for discussion about how to resolve international disputes and has been characterized as a “seminal moral commitment.”1 Among the most dramatic international actions recognizing the central role this principle plays are the 1992 Biodiversity Convention,2 the 2000 Cartagena

1

Christopher D. Stone, Is There a Precautionary Principle? 31 ENVTL. L. RPTR. 10790 (2001). 2 Convention on Biological Diversity, June 5, 1992, preamble, UNEP/Bio. Div/CONF/L.2, S. Treaty Doc. No. 103-20, 31 I.L.M. 818, 822-23 [hereinafter CBD]; see infra text accompanying notes 22-23. 357 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 357-79. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Protocol on Biosafety,3 the transformation of what used to be called the London Dumping Convention,4 the adoption of the 1995 Straddling and Migratory Species Convention,5 the widespread protests against the shipments of ultrahazardous radioactive cargos,6 and the global moratorium on the harvesting of whales.7 This paper will examine the evolution of the content of the precautionary principle and its current acceptance and utilization by the international community.

I. What Is the Precautionary Principle? 8

Many scholars have observed that the precautionary principle has an elusive kaleidoscopic character9 and that it is hard to establish a universally applicable definition that is any more meaningful or useful than saying “take care”10 or “better safe than sorry.”11 Some governments seem more comfortable referring to a “precautionary approach” rather than a “precautionary principle,” hoping, apparently, that this term will allow for more flexibility.12 But as it has evolved, 3

Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39 I.L.M. 1027, available at http://www.biodiv.org/biosafety/protocol.asp; see infra text accompanying notes 25-27. 4 See infra text accompanying notes 48-64. 5 See infra text accompanying notes 65-70. 6 See infra text accompanying notes 71-76. 7 See infra text accompanying notes 77-80. 8 For commentary on the content of the precautionary principle, see James E. Hickey, Jr., and Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 VA. ENVTL. L.J. 423 (1995); Gregory D. Fullem, Comment, The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty, 31 WILLAMETTE L. REV. 495 (1995); John M. Macdonald, Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management, 26 OCEAN DEV. & INT’L L. 255 (1995). 9 See, e.g., Daniel Bodansky, Scientific Uncertainty and the Precautionary Principle, 33 ENVIRONMENT 4 (Sept. 1991)(“Although the precautionary principle provides a general approach to environmental issues, it is too vague to serve as a regulatory standard because it does not specify how much caution should be taken”) and Daniel Bodansky, Deconstructing the Precautionary Principle, Chapter 16 of this volume. But see also Daniel Bodansky, Remarks, New Developments in International Environmental Law, 85 AM. SOC’Y INT’L L. PROC. 413 (1991) (“Indeed, so frequent is its invocation that some commentators are even beginning to suggest that the precautionary principle is ripening into a norm of customary international law.”). 10 See Stone, supra note 1. 11 Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851, 851 (1996). 12 See Ellen Hey, The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, 4 GEO. INT’L ENVTL. L. REV. 303, 304 (1992) (“[The] principle implies a general rule adopted as a guide for developing international environmental policy. The same dictionary defines the term ‘approach’ as a ‘way of considering or handling something, especially a problem.’”).

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this principle has gained content and dimension. It mandates that studies precede action, and that interdisciplinary environmental impact assessments be written and distributed with public input.13 It shifts the burden to those who would undertake a new development or use of an environmental resource, replacing the old approach that had placed the burden on the environmentalists who challenged such an activity.14 It requires those who want to undertake new developments to engage in scientific studies to determine the effect of their initiatives and also to consider less intrusive alternative approaches. It accords respect to ecosystems and living creatures for their own sake, without requiring that they prove themselves to be useful or to have marketplace value. It rejects the idea that risks and costs can be transferred from one region to another, or from this generation to future ones, and requires that risks and costs be internalized in order to engage in a fair and sober analysis of whether to proceed with a project. And ultimately it requires that we proceed slowly in the face of uncertainty, constantly testing and monitoring the effects of our activities. When risks are anticipated, the precautionary principle requires those creating the risks to work with potentially-affected nations to prepare for foreseeable emergency contingencies,15 to create appropriate liability regimes to ensure that injured parties are properly compensated,16 to notify other countries of situations threatening harmful effects on their environment,17 and of course to take every appropriate precaution to prevent or limit damage to the environment.18 Some authors have broken the precautionary principle into component elements, attempting to establish, for instance, the level of risk that triggers precautionary action; the action to be taken in the face of such risks; the amount of balancing of risks, benefits, and costs permissible under the principle; and the level of scientific consensus of safety that will be sufficient to eliminate precautionary duties.19 These efforts are well worth undertaking, but it is probably im13

For a listing of international agreements requiring environmental assessments, see DAVID HUNTER, JAMES SALZMAN, AND DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 366-70 (1998). 14 Id. at 360. 15 See, e.g., United Nations Convention on the Law of the Sea, Dec. 10, 1982, entered into force Nov. 16, 1994, art. 199, U.N. Doc. A/CONF.62/122 (1982), 21 I.L.M. 1261. 16 Id. art. 235. 17 Id. art. 198; Rio Declaration on Environment and Development, June 14, 1992, Principle 18, 31 I.L.M. 874, 879. 18 See 1 PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 19495 (1995) (citing the Stockholm Declaration Principles 6, 7, 15, 18 and 24, the 1978 UNEP Draft Principles, Principle 1, the 1982 World Charter for Nature, the growing network of specific environmental conventions, the Trail Smelter Arbitration, 3 R.INT’L ARB. AWARDS 1905 (1941), and the Lac Lanoux Arbitration, 24 I.L.R. 101 (1957)). 19 See, e.g., James Cameron and Juli Abouchar, The Status of the Precautionary Principle in International Law, in THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION 29, 44-45 (David Freestone & Ellen Hey eds., 1996); Deborah Katz, Note, The Mismatch Between the Biosafety Protocol and the Precautionary Principle, 13 GEO. INT’L ENVTL. L. REV. 949, 956-57 (2001).

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possible at this early stage to have an all-encompassing formula applicable to all situations. Just as we are slowly learning about our complex environment, we are also slowly learning how to apply the precautionary principle to the situations that require its application.

II. Recognition in International Treaties and Documents Perhaps the most universal formulation of precautionary duties can be found in Principle 15 of the 1992 Rio Declaration on Environment and Development: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.20

A related document provided somewhat more specific language in the context of activities affecting the marine environment: States, in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment, commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities. To this end, it is necessary to: (a) 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. 21

Pursuant to these broad guidelines, precautionary requirements have been included in a wide variety of treaties during the past decade. The Biodiversity Convention22 utilizes what some have called a “purer form”23 of the precautionary principle, stating in its preamble that “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat...” Another example can be found in the language in the 1994 Preagreement on the Application of Sanitary and Phytosanitary Measures: 20

Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874,

879. 21

Agenda 21, Chapter 17, 17.22, in Report of the United Nations Conference on Environment and Development, Rio De Janeiro, June 3-14, 1992, U.N. Doc. A/CONF. 151/26 (Vol. II). 22 CBD, supra note 2. 23 Stephen McCaffrey, Biotechnology: Some Issues of General International Law, 14 TRANSNAT’L L 91, 97 (2001).

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In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.24

Among the more recent formulations is the complicated language that appears in the Cartagena Biosafety Protocol, which governs living modified organisms: Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account human risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living modified organism intended [for direct use as food or feed, or for processing] in order to avoid or minimize such potential adverse effects.25

This language means that countries can prevent the importation of living modified organisms even if a specific harm resulting from such organisms cannot be identified. The Protocol also refers to the “precautionary approach” in its preamble (which reaffirms “the precautionary principle contained in Principle 15 of the Rio Declaration on Environment and Development”26) and “builds it directly into the operative provisions on risk assessment.”27 Even more recently, the Persistent Organic Pollutants Treaty,28 which was signed by more than 90 nations on May 23, 2001, included a reference to Principle 15 of the 1992 Rio

24 Preagreement on the Application of Sanitary and Phytosanitary Measures, art. 5(7), April 15, 1994, 33 I.L.M. 1226. 25 Cartagena Protocol, supra note 3, arts. 10(6) and 11(8). 26 Id., preamble. 27 Peter-Tobias Stoll, Controlling the Risks of Genetically Modified Organisms: The Cartagena Protocol on Biosafety and the SPS Agreement, [1999] 10 Y.B. INT’L ENVTL. L. 82, 97 (referring to the Biosafety Protocol, arts. 10(6), 11(8)). 28 Stockholm Convention on Implementing International Action on Certain Persistent Organic Pollutants, May 22, 2001, preamble, art. 1 (“Acknowledging that precaution underlies the concerns of all the Parties and is embedded within this Convention,”); art. 8.9 (“The Conference of the Parties, taking due account of the recommendations of the Committee, including any scientific uncertainty, shall decide, in a precautionary manner, whether to list the chemical, and specify its related control measures, in Annexes A, B and/or C.”), UNEP/POPS/CONF/2, available at http://www.chem.unep.ch/pops/POPs_ Inc/dipcon/meetingdocs/conf-2/en/conf-2e.doc; see Jane C. Luxton, POPS Treaty Signed: Attention Turns to Ratification and Implementation, 17:1 ENVTL. COMPLIANCE & LITIGATION STRATEGY 1 (2001).

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Declaration in describing the process by which additional chemicals will be added to the treaty. Other treaties and agreements recognizing or incorporating the precautionary principle include the 1985 Vienna Ozone Convention,29 1987 Montreal 31 Ozone Protocol,30 1989 South Pacific Driftnet Convention, 1991 Bamako 32 Hazardous Waste Movement Convention, the 1991 Declaration of Esbjerg on the Protection of the Wadden Sea,33 the 1992 Framework Convention on Climate Change,34 the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes,35 the 1992 North-East Atlantic Ma-

29

Vienna Convention for the Protection of the Ozone Layer, March 22, 1985, preamble, 26 I.L.M. 1516, 1529 (“Mindful also of the precautionary measures for the protection of the ozone layer which have already been taken at the national and international levels . . .”). 30 Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, preamble, 26 I.L.M. 1541, 1551. 31 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (Wellington Convention), Nov. 24, 1989. 32 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Jan. 30, 1991, art. 4(3)(f), OAU/CONF/COOR/ENV/MIN/AFRI/CONV.1(1) Rev. 1, 30 I.L.M. 773, 781 (requiring parties to adopt precautionary measures for waste generated in Africa, by “preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm”). 33 Ministerial Declaration of the Sixth Trilateral Governmental Conference on the Protection of the Wadden Sea (Denmark/Germany/Netherlands), ¶ 3(iii) (“The common policies . . . will be further implemented based on . . . the Precautionary Principle, i.e. to take action to avoid activities which are assumed to have significant damaging impact on the environment, even when there is no sufficient scientific evidence to prove a causal link between activities and their impact . . .”), quoted in Chris W. Backes and Jonathan M. Verschuuren, The Precautionary Principle in International, European, and Dutch Wildlife Law, 9 COLO. J. INT’L ENVTL. L & POL’Y 43, 53 (1998). 34 United Nations Framework Convention on Climate Change, May 9, 1992, art. 3(3), U.N. Doc. A/CONF.151/26, 31 I.L.M. 849 (stating that “[t]he parties should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.”). 35 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, March 17, 1992, art. 2(5)(a), 31 I.L.M. 1312, 1316 (“the parties shall be guided by . . . the precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand . . . ”).

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rine Environment Convention,36 the Amended European Community Treaty,37 the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area,38 the 1994 Sulphur Air Pollution Protocol,39 the 1995 Meuse River Agreement,40 the 1995 Scheldt River Agreement,41 the 1996 Cetacean Conservation Agreement,42 the 1996 Izmir Protocol on Transfrontier Movement of Hazardous Wastes,43 the 1997 Kyoto Protocol on Climate Change,44 the 1998 Con36

Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Sept. 22, 1992, preamble and art. 2(2)(a), 32 I.L.M. 1069, 1076 (requiring contracting parties to apply “the precautionary principle, by virtue of which preventative measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm to living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects. . .”). 37 Article 130R, ¶ 2 of the Amended European Community Treaty requires: Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should be as a priority be rectified at source and that the polluter should pay. Available at http://europa.eu.int/abc-en.htm. 38 Convention on the Protection of the Marine Environment of the Baltic Sea Area, April 9, 1992, art. 3(2), 1992 WL 675165 at 7 (“The contracting parties shall apply the precautionary principle, i.e., to take preventive measures when there is reason to assume that substances or energy introduced, directly or indirectly, into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea even when there is no conclusive evidence of a causal relationship between inputs and their alleged effects.”). 39 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, June 14, 1994, preamble, 33 I.L.M. 1540, 1542 (“Resolved to take precautionary measures to anticipate, prevent or minimize emissions of air pollutants and mitigate their adverse effects.”). 40 Agreement on the Protection of the Meuse, July 4, 1995, art.3(2)(a), 34 I.L.M. 851, 855 (“The Contracting Parties shall be guided by . . . (a) The precautionary principle, according to which action to avoid the release of dangerous substances which could have a significant transboundary impact, shall not be postponed on the grounds that scientific research has not fully proved the existence of a causal link between the discharge of those substances and a possible significant transboundary impact.”) 41 Agreement on the Protection of the Scheldt, July 4, 1995, art.3(2)(a), 34 I.L.M. 851, 860 (same language as in the Meuse agreement in the footnote above). 42 Final Act and Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, Nov. 24, 1996, art. II(1)-(4), 36 I.L.M. 777, 785. 43 Izmir Protocol on the Protection of the Mediterranean Sea Against Pollution Through the Transfrontier Movement of Hazardous Materials, Oct.1, 1996, art. 8(3), 1996 WL 1056819. 44 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, art. 3(3), FCCC/CP/1997/C.7/Add1, 37 I.L.M. 22.

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vention on Cooperation for the Protection and Sustainable Use of the Danube River,45 1998 Rhine River Convention,46 and the 2000 Seabed Mining Regulations.47

A. The Greening of the London Dumping Convention48 The transformation of the London Dumping Convention is certainly one of the most impressive success stories of the 1990s. This Convention was drafted shortly after the 1972 Stockholm meeting that launched international environmental consciousness.49 As originally written, it contained a “black list” of materials (such as high-level radioactive wastes) that could never be dumped into the ocean and a “gray list” of items (such as low-level radioactive wastes) that could be dumped in appropriate locations if proper governmental permits were obtained. This treaty was a step forward, but it still permitted a substantial amount of dumping, and efforts were made at the annual meetings of its contracting parties to tighten its provisions so that no radioactive materials whatsoever could be dumped50 and the dumping of other hazardous materials would similarly be prohibited. Although the developed nations resisted restrictions on their ability to dump low-level radioactive wastes for a number of years,51 after many debates

45 Convention on Cooperation for the Protection and Sustainable Use of the Danube River, entered into force Oct. 22, 1998, art. 2.4, at http://158.169.50.70/eur-lex/en/lif/dat/ 1997/en_297A1212&uscore;03.html. 46 Convention on the Protection of the Rhine, Jan. 22, 1998, art. 4(b), at http://www.dundee.ac.uk/cepmlp/water/assets/images/Rhine_Convention.doc. 47 International Seabed Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, July 13, 2000, reg. 31(2), ISBA/6/A/18, at http://www.isa.org.jm/en/whatsnew/Un_mining_code.pdf. 48 This section and the one that follows are adapted from Jon M. Van Dyke, Sharing Ocean Resources—In a Time of Scarcity and Selfishness, in THE LAW OF THE SEA: THE COMMON HERITAGE AND EMERGING CHALLENGES 3, 7-9 (Harry N. Scheiber ed., 2000). 49 The London Dumping Convention has the formal name of The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, reprinted in 11 I.L.M. 129. 50 See, e.g., Jon M. Van Dyke, Ocean Disposal of Nuclear Wastes, 12 MARINE POLICY 82 (1988); W. Jackson Davis and Jon M. Van Dyke, Dumping of Decommissioned Nuclear Submarines at Sea: a Technical and Legal Analysis, 14 MARINE POLICY 467 (1990). 51 In February 1983, the contracting parties passed a resolution imposing a moratorium on the dumping of all low-level radioactive wastes, but the Soviet Union, China, Belgium, France, the United Kingdom, and the United States voted against the resolution and a number of other industrialized nations abstained. The dissenting nations did not feel that they were bound by this resolution, and the British government sought to continue its dumping program. But the British unions refused to load the low-level wastes on the British ship in 1985, and thus the British were forced to adhere to the moratorium by their own people. Van Dyke, Ocean Disposal of Nuclear Wastes, supra note 50, at 82.

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and many preliminary meetings a new Protocol was adopted in 199652 that “virtually re-writes the London Convention.”53 In fact, the name of this treaty was even changed, because the contracting parties did not want the public to think that it authorized dumping, and now it is titled simply “London Convention, 1972.” Under the new Protocol, the presumptions are reversed, and the dumping of all wastes is prohibited unless the item to be dumped is explicitly listed in Annex I.54 Even these materials, which include dredged material, sewage sludge, vessels, and ocean platforms,55 cannot be dumped without a permit.56 Permits can be granted only after assessments are undertaken that evaluate options and describe the potential effects of the dumping.57 Incineration at sea58 and the dumping of industrial wastes are completely prohibited. This new Protocol is thus based on the precautionary approach59 as well as the polluter-pays principle.60 The burden has thus shifted “from (1) dumping unless it were proven harmful to (2) no dumping unless it is shown there are no alternatives.”61 This remarkable makeover of the London Convention illustrates the “greening” of the international community and the new spirit of shared responsibility for the common areas of the planet. More than 70 countries are contracting parties to the London Convention,62 and under Article 210(6) of the Law of the Sea Convention,63 parties to the Law of the Sea Convention are also bound by the

52

1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996, 36 I.L.M. 1. 53 Hunter, Salzman, and Zaelke, supra note 13, at 764. 54 1996 Protocol, supra note 51, art. 4(1). 55 Id., Annex I. 56 Id., art. 4(2). 57 Id., Annex II. 58 Id., art. 5. 59 Id., art 3(1): In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects. 60 Id., art. 3(2): Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavor to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest. 61 Hunter, Salzman, and Zaelke, supra note 13, at 765. 62 Id. at 772. 63 Law of the Sea Convention, supra note 15, art. 210(6).

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requirements of the London Convention even if they are not parties to that treaty.64

B. The 1995 Straddling and Migratory Fish Stocks Agreement On December 4, 1995, the nations of the world settled on the text of an important document with the cumbersome title of “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.”65 The goal of this document was to stop the dramatic overfishing that has decimated fish stocks in many parts of the world.66 Although it builds on existing provisions in the 1982 United Nations Law of the Sea Convention,67 it also introduces a number of new strategies that will require the fishing industry to change its mode of operation in significant ways. Prominent among these new requirements is precaution. Article 5(c) lists the “precautionary approach” among the principles that govern conservation and management of shared fish stocks, and Article 6 elaborates on this requirement in some detail, focusing on data collection and monitoring. Then, in Annex II, the Agreement identifies a specific procedure that must be used to control exploitation and monitor the effects of the management plan. For each harvested species, a “conservation” or “limit” reference point as well as a “management” or “target” reference must be determined. If stock populations go below the agreed-upon conservation/limit reference point, then “conservation and management action should be initiated to facilitate stock recovery” (Annex II(5)).

64

See Brennan van Dyke, The London Convention, 1972 in THE USE OF TRADE MEASURES IN SELECTED MULTILATERAL ENVIRONMENTAL AGREEMENTS 256-57 ((Houseman et al., eds., UNEP, 1995) (citing a communication to the contracting parties of the London Convention issued by the Division for Ocean Affairs of the United Nations Office of Legal Affairs). 65 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, U.N. Doc. A/CONF.164/37 (1995), 34 I.L.M. 1542. 66 David E. Pitt, Despite Gaps, Data Leave Little Doubt that Fish Are in Peril, N.Y. TIMES, Aug. 3, 1993, at C4, col. 1 (nat’l ed.). See generally FREEDOM FOR THE SEAS IN THE 21ST CENTURY (Jon M. Van Dyke, Durwood Zaelke, and Grant Hewison eds., 1993). Among the stocks that are now seriously depleted are Atlantic halibut, New Zealand orange roughy, bluefin tuna, rockfish, herring, shrimp, sturgeon, oysters, shark, Atlantic and some Pacific Northwest salmon, American shad, Newfoundland cod, and haddock and yellowtail flounder off of New England. Associated Press, Steps Must Be Taken to Counter Overfishing, U.S. Panel Warns, HONOLULU STAR-BULLETIN, Oct. 23, 1998, at A19, col. 2 (quoting from a study led by Stanford biologist Harold Mooney and funded by the National Research Council, an arm of the National Academy of Sciences.). 67 Law of the Sea Convention, supra note 15, arts. 56, 61-66, 69-70, 118-20.

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Overfished stocks must be managed to ensure that they can recover to the level at which they can produce the maximum sustainable yield (Annex II(7)). The continued reference to the maximum-sustainable-yield formula indicates that the Agreement has not broken completely free from the approaches that led to the rapid decline in the world’s fisheries,68 but the hope is that the conservation/limit reference points will lead to early warnings of trouble that will be taken more seriously.69 Building on the principles found in the 1995 Agreement, the fishing and coastal countries in the Pacific and in the Southeast Atlantic have promulgated regional fishery management treaties which rely heavily on the precautionary approach as their central foundation.70

68

Fishing to attain the maximum sustainable yield inevitably means reducing the abundance of a stock, sometimes by one-half or two-thirds. This reduction can threaten the stock in unforeseeable ways and also will impact on other species in the ecosystem. 69 One recent report explains the “precautionary approach” in the context of the 1995 Straddling and Migratory Stocks Agreement, supra note 63, as follows: The precautionary approach, in summary, embodies six main elements:

N N N

N N N

caution (to be applied widely, to protect resources and preserve the environment); more caution required when uncertainty; absence of adequate information no reason for failing to take measures; information and analysis (obtain and share best available information; need to deal with risk and uncertainty); reference points (use of limit and target reference points for conservation and management objectives respectively; develop plans as LRPs [limit reference points] are approached or TRPs [target reference points] exceeded); non-target species, associated or dependent species and their environment (assess impacts of fishing; ensure conservation of species and protection of habitat); new or exploratory fisheries (early adoption of cautious measures or PRPs, remaining in effect until fishery impacts assessed; gradual development; set provisional reference points); and natural phenomena (adopt conservation and management measures to ensure fishing does not exacerbate the situation)

Report of the Eleventh Meeting of the Standing Committee on Tuna and Billfish, May 28June 6, 1998, Honolulu, in Appendix 1 (Record of Discussion of the Workshop on Precautionary Limit Reference Points) at 67. 70 The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Honolulu, 4 September 2000, (26 March 2001); Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean, fifth preambulatory paragraph, articles 3(b), 6(3)(g), and 7, 20 April 2001, 41 I.L.M. 257 (2002).

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C. Shipments of Ultrahazardous Radioactive Materials The recent regular shipments of ultrahazardous cargoes of plutonium and highlevel radioactive wastes from Europe to Japan have caused enormous concern among the coastal and island nations that could be devastated by an accident or terrorist attack involving these cargoes.71 Many of the protests have specifically cited the precautionary principle as the basis for challenging the legitimacy of these dangerous shipments.72 A Chilean naval vessel ordered the 1994-95 shipment to exit Chile’s exclusive economic zone (EEZ), citing the precautionary principle as a primary reason for banning the British-flag vessel from its EEZ.73 New Zealand has also taken a lead in protesting these shipments, arguing that they should not be permitted through New Zealand’s EEZ because of the “‘precautionary principle’ enshrined in the Rio Declaration,” and that “there should be recognition in international law of the right of potentially affected coastal states to prior notification, and, ideally, prior informed consent for shipments of nuclear material.”74 The countries opposing these shipments also argue that passage of such dangerous cargoes through coastal EEZs violates the standards found in the Law of the Sea Convention, which require countries to prepare environmental impact statements for matters that may cause substantial pollution, to prepare contingency plans for accidents,75 to consult with affected states, and to establish appropriate liability regimes for such hazards.76 71

See, e.g., Jon M. Van Dyke, Sea Transport of Japanese Plutonium Under International Law, 24 Ocean Development & Int’l L. 399 (1993); Jon M. Van Dyke, Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials, 27 OCEAN DEV. & INT’L L. 379 (1996); Duncan E.J. Currie and Jon M. Van Dyke, The Shipment of Ultrahazardous Nuclear Materials in International Law, 8 REVIEW OF EUROPEAN COMMUNITY & INTERNATIONAL ENVIRONMENTAL LAW (RECIEL) 113 (1999); Jon M. Van Dyke, The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials, 33 OCEAN DEV. & INT’L L. 77 (2002). 72 See, in particular, Article 23 of the Law of the Sea Convention, supra note 15, requiring “[f]oreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances . . . when exercising the right of innocent passage through the territorial sea [to] carry documents and observe special precautionary measures established for such ships by international agreements (emphasis added).” 73 Transcript of conversation of March 22 1994. Coastal States have the specific right “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance.” Law of the Sea Convention, supra note 15, art. 234. This provision could strengthen Chile and Argentina’s claim to ban highly radioactive nuclear carriers from their EEZs. 74 Letter from Don McKinnon, New Zealand Minister of Foreign Affairs and Trade, to Michael Szabo (July 7, 1999) (on file with author). 75 The consequences of an accident involving a ship carrying ultrahazardous radioactive materials would be so grave that emergency procedures must be in place to address possible fires, collisions, and sinkings. These procedures must include access to appropri-

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D. Whales The world-wide moratorium on whale harvesting established by the International Whaling Commission (IWC)77 represents another example of the precautionary principle in action. The special status and treatment of whales is recognized in Article 65 of the Law of the Sea Convention, which requires states to “work through the appropriate international organizations for [the] conservation, management and study” of cetaceans (whales and dolphins). Since 1986, the IWC has maintained a moratorium on all harvesting of whales, except for limited kills allocated to indigenous people, mostly in the Arctic region.78 Although Norway, Iceland, Denmark, and Japan continue to harvest some whales in defiance of this moratorium, it has been accepted by most countries as a necessary precaution to protect whale species because of the gross overharvesting that has occurred in the past and the inability to be sure how best to protect these grand creatures after their depletion, especially in light of the overt dishonesty of many whaling countries, even in recent years.79 Among the many documented abuses is the recent information that the Soviet Union harvested 48,477 humpback whales from 1948 to 1973, instead of the 2,710 it officially reported to the International Whaling Commission, and the discovery that whales recently harvested by Japan, ostensibly pursuant to its “scientific” whaling for Antarctic 80 minke whales, included humpback whales, fin whales, and Arctic minke.

ate ports, availability of tugboats and firefighting equipment, and plans for retrieval in the event of a sinking. 76 See generally articles cited supra in note 71. 77 The International Whaling Commission (IWC) was created by the International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72. 78 See generally Harry N. Scheiber, Historical Memory, Cultural Claims, and Environmental Ethics in the Jurisprudence of Whaling Regulation, 38 OCEAN & COASTAL MGMT 5 (1998), and in LAW OF THE SEA: THE COMMON HERITAGE AND EMERGING CHALLENGES 127 (Harry N. Scheiber ed., 2000). 79 See, e.g., William C. Burns, The International Whaling Commission and the Future of Cetaceans: Problems and Prospects, 8 COLO. J. INT’L ENVTL. L. & POL’Y 31, 86 (1997) (“Given the inherent unreliability of statistical models that seek to estimate ‘safe’ catch levels for whales and the perilous state of the stocks of most of the great whales, it can be argued that whaling nations can no longer ensure that their actions can be harmonized with the aspirations of the rest of the world.”). 80 David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 AM. J. INT’L L. 154, 171-73 (1995) (citing Natalie Angier, DNA Tests Find Meat of Endangered Whales for Sale in Japan, N.Y. TIMES, Sept. 13, 1994, at C4, and Michael Szabo, DNA Test Traps Whale Tenders, NEW SCIENTIST, May 28, 1994, at 4).

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III. Recognition in International Judicial Decisions A. The Gabcikovo-Nagymaros Decision The International Court of Justice acknowledged the importance of precaution in its 1997 decision adjudicating the dispute between Hungary and Slovakia over water regulation on the Danube.81 Hungary had suspended in 1989, and then in 1992 had unilaterally terminated, a 1977 treaty governing a hydroelectric dam and navigation improvement project that had been negotiated by Hungary and Czechoslovakia during the Soviet dominance of Eastern Europe. After it broke away from the Soviet Union in the late 1980s, Hungary argued that the treaty was a “mistake,” and that it was entitled to terminate the treaty on the basis of an “ecological state of necessity.” Hungary pointed to possible ecological risks that included “the replacement of Danube groundwater flow with stagnant upstream reservoir water, the silting of the Danube, eutrophication, and the threat to aquatic habitats from peaking power releases.”82 Based on these threats, Hungary argued that the precautionary principle imposed “an erga omnes obligation of prevention of damage . . . ” and invoked Article 33 of the International Law Commission Draft Articles on the International Responsibility of States, which permits countries to avoid an international duty if necessary to “safeguard an essential interest of the State against a grave and imminent peril.” The International Court of Justice agreed that Article 33 incorporated concepts of precaution, but interpreted this doctrine narrowly, finding that a country could invoke the principle as a basis for terminating a treaty only if it could demonstrate “by credible scientific evidence that a real risk will materialize in the near future and is thus more than a possibility.”83 The Court then ruled that Hungary’s evidence of potential environmental damage had failed to meet this standard and thus that Hungary remained bound by the treaty, pursuant to the principle of pacta sunt servanda, requiring countries to adhere to their treaty commitments. But the Court also stated that “new knowledge of ecological risk does impose a duty on parties to a complex river basin development treaty to take the information into consideration in the ongoing implementation of the treaty and management of the river.”84 The Court thus gave Hungary a partial victory by ordering the two countries “to undertake good faith negotiations consistent with both international environmental norms such as sustainable devel81

Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7 (Sept. 25). 82 A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES, sec.11:9 (2001). 83 One author has explained that the Court’s reluctance to embrace the precautionary principle more fully in its decision may be because “the case arose in relation to actions taken by Hungary in 1989, and the ICJ was clear in applying the law as it was at the time. As a result, the court’s statements and holdings only reflect the law as it had stood eight years earlier and not the status of the precautionary principle in 1997.” Russell Unger, Brandishing the Precautionary Principle Through the Alien Tort Claims Act, 9 N.Y.U. ENVTL. L.J. 638, 655 (2001). 84 Tarlock, supra note 82.

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opment and the law of international water courses to come up with a new management scheme”85 for the dam project. Judge Weeramantry wrote a separate opinion emphasizing that the interrelated principles of environmentally sustainable development and cautionary environmental assessment are erga omnes rules of customary international law. This opinion says that the precautionary principle includes a requirement to prepare environmental assessments and to monitor all large water development projects: “EIA, being a specific application of the larger principle of caution, embodies the larger obligation of continuing watchfulness and anticipation.”86 In the earlier 1995 Nuclear Tests Case,87 although the Court failed to reach the merits, two judges mentioned the precautionary principle as an emerging feature of international environmental law.88 One of these judges also referred to the precautionary principle in the 1996 Nuclear Weapons Case.89

B. The Southern Bluefin Tuna Case. This case90 had a promising beginning, with the International Tribunal for the Law of the Sea (ITLOS) issuing strong provisional measures designed to protect an overfished species, but its ending was unfortunate, when an ad hoc arbitral tribunal declared that both it and ITLOS lacked jurisdiction over the case because of conflicting dispute-resolution provisions in the relevant treaties. Despite the inconclusive ending of this case, the provisional measures issued by ITLOS may still be important for future disputes. The Tribunal tried to freeze the status quo, and ordered Japan to stop its unilateral “experimental fishing” in order to give the bluefin tuna a chance to recover while the countries developed new management arrangements. In its Order, the Tribunal used the following language:

85

Id. Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7 (Sept. 25) (separate opinion of Vice President Weeramantry at 18). 87 Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288 (Sept. 22). 88 Judge Palmer wrote that “the norm involved in the precautionary principle has developed rapidly and may now be a principle of customary international law relating to the environment,” 1995 I.C.J. at 412 (dissenting opinion), and Judge Weeramantry stated that the precautionary principle is “gaining increasing support as part of the international law of the environment.” Id. at 342 (dissenting opinion). 89 Judge Weeramantry said that “principles of environmental law, which this Request enables the Court to recognize and use in reaching its conclusions, [include] the precautionary principle.” Legality of the Threat or Use of Nuclear Weapons (UNGA Advisory Opinion), 1996 I.C.J. 240, 502 (July 8) (dissenting opinion). 90 Southern Bluefin Tuna Case (Austl. and N.Z. v. Japan), Provisional Measures Order (ITLOS), Aug. 27, 1999, at http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm; Award on Jurisdiction and Admissibility, Aug. 4, 2000, at http://www.worldbank.org/ icsid/bluefintuna/award080400.pdf. 86

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Jon M. Van Dyke [P]arties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna. . . . . . . [Although there is] scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and . . . although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration.91

Judge Alexander Yankov, referring to this language, wrote later that “there are some statements of the Tribunal in the Order which appear to reveal its stand in favor of essential elements of the precautionary approach.”92 Judge Tullio Treves added in his concurring opinion that, although he “understood the reluctance of the Tribunal in taking a position as to whether the precautionary approach is a binding principle of customary international law,” nonetheless “a precautionary approach seems to me inherent in the very notions of provisional measures.”93

C. The MOX Plant Case In the MOX Plant Case,94 the Tribunal issued another important provisionalmeasures ruling, stating that the duty to cooperate required Ireland and the United Kingdom to exchange information concerning the risks created by the expansion of the Sellafield nuclear facility in the United Kingdom, to monitor the effects of this plant on the marine environment in the Irish Sea, and to work together to reduce these risks. This case was then transferred to an arbitral panel, which again found procedural obstacles that blocked its ability to reach the merits of the dispute.95 But the filings of the two parties show agreement that the 91 Id., ITLOS Provisional Order, ¶¶ 77, 79, 80; see also Separate Opinion of Judge Treves, ¶ 9 (“a precautionary approach seems to me inherent in the very notion of provisional measures); Separate Opinion of Judge Shearer (“the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach”). 92 Alexander Yankov, Irregularities in Fishing Activities and the Role of the International Tribunal for the Law of the Sea, in I LIBER AMICORUM JUDGE SHIGERU ODA 773, 780 (Nisuke Ando, Edward McWhinney, and Rudiger Wolfrum, eds. 2002). 93 Id., Separate Opinion of Judge Treves, para. 9; see also Separate Opinion of Judge Shearer (“the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach”). See also Leah Sturtz, Southern Bluefin Tuna Case: Australia and New Zealand v. Japan, 28 ECOLOGY L. Q. 455, 459 (2001)(reporting that: “These provisional measures remained in place for one year, yielding great benefits in environmental protection.”). 94 The MOX Plant Case (Ireland v. U.K.), (ITLOS 2001), 41 I.L.M. 405 (2002). 95 The MOX Plant Case (Ireland v. U.K.), (Perm. Ct. Arbitration), Order No. 3 (24 June 2003), available at website of Permanent Court of Arbitration (suspending the proceeding pending a resolution of issues related to the possibly conflicting jurisdiction of

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precautionary principle is a central norm applicable to the dispute. Ireland’s Memorial96 quoted Article 2(2)(a) of the 1992 OSPAR Convention97 as defining the duties of countries under the precautionary principle and as reflecting “a rule of general international law amongst European States.” Ireland also submitted that “[t]he precautionary principle has been recognised as being inherent in the 98 approach adopted by UNCLOS” and that “the United Kingdom did not challenge Ireland’s characterisation of the precautionary principle as having the 99 status of customary international law.” The United Kingdom responded in its Rejoinder by saying that “the United Kingdom was, and is today, guided by the precautionary principle as elaborated in European Community law in the context 100 of its Strategy 2001-2020,” and that “the United Kingdom’s practice in respect of the MOX Plant was entirely consistent with a precautionary approach.”

D. European Decisions The most significant precautionary principle decision by the European Court of Justice occurred in 1998, when the Court upheld the European Commission’s decision to ban all bovine animals and all beef and veal products from the United Kingdom, based on the EC’s judgment that all risks of transmission from bovine spongiform encephalopathy (mad cow disease) could not be excluded.101 In response to the argument of the English National Farmers’ Union that this decision violated the principle of proportionality, the Court acknowledged that the principle of proportionality required that the least onerous alternative be chosen, but ruled also that “[w]here there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of the risks become fully apparent.”102 In another important decision, the Court of First Instance in Europe rejected a challenge to a decision removing an antibiotic from the list of authorized animal feeds by quoting from the statement above, referring to the precautionary the European Court of Justice, but also calling for more formalized arrangements to ensure cooperation and consultation between the two countries). 96 Id., Memorial of Ireland, paras. 6.22-6.23 (26 July 2002), available at website of Permanent Court of Arbitration. 97 Article 2(2)(a) of the 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) is quoted supra in note 36. 98 The MOX Plant Case (Ireland v. U.K.), (Perm. Ct. Arbitration), Memorial of Ireland, para. 6.25 (26 July 2002). 99 Id., para. 6.26. 100 The MOX Plant Case (Ireland v. U.K.), (Perm. Ct. Arbitration), Rejoinder of the United Kingdom, para. 8.34 (24 April 2003). 101 Case C-147-96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmer’s Union, David Burnett and Sons Ltd., R.S., 1998 E.C.R. I-2211. 102 Id. at ¶ 63. The Court repeated this statement in Case C-180/96, United Kingdom v. Commission of the European Communities, 1998 E.C.R. I-2265, ¶ 99.

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principle, and adding, that “[t]here can be no question but that the requirements of the protection of public health must take precedence over economic considerations.”103 Also, without explicitly referring to the precautionary principle, the European Court of Justice seemed to rely upon it in cases where it refused to allow an extension of the hunting season for certain birds unless scientific proof established that the extension would not impair the full protection of the affected bird species.104 Eight of the 20 judges on the European Court of Human Rights issued a strong dissent in the case of Balmer-Schafroth v. Switzerland,105 arguing that the precautionary principle is an important element of international environmental law that the majority had ignored. The majority had rejected the claim, ruling essentially that the concerned citizens attempting to challenge the extension of a nuclear power plant’s operating lease had not suffered a sufficient actual injury to give them standing to challenge the administrative decision, concluding that “the harm complained of was not imminent and there was not a sufficient link between the applicant’s right to protection of physical integrity and the operating conditions of the nuclear plant.”106

E. World Trade Organization In the case entitled EC Measures Concerning Meat and Meat Products,107 the Appellate Body of the World Trade Organization noted that the precautionary principle “continues to be the subject of debate” and that its status is “less than clear,”108 but also stated that the principle is regarded by “some” judges and commentators “as having crystallized into a general principle of customary international environmental law.”109 In its conclusion, the Appellate Body followed a precautionary approach by ruling that panels evaluating scientific data should accept that “responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. lifeterminating, damage to human health are concerned.”110

103

Case T-70/99 R, Alpharma, Inc. v. Council of the European Union 1999 E.C.R. II-2027, ¶ 3. 104 See Backes and Verschuuren, supra note 33, at 49 (citing Case C-157/89, Commission v Italy, 1991 E.C.R. I-57, I-87; Case C-435/92, Association pour la Protection des Animaux Sauvages and Others v. Prefet de Maine-et-Loure and Prefet de la LoireAtlantique, 1994 E.C.R. I-67, I-95). 105 Balmer-Schafroth v. Switzerland, 25 Eur. H.R.Rep. 598 (Eur. Ct. H.R. 1997). 106 Unger, supra note 83, at 658-59. 107 EC Measures Concerning Meat and Meat Products (Hormones), Report of Appellate Body, Adjusted Basis 1997-4, WT/DS26/AB/R (Jan. 16, 1998), 1998 WL 25520 (W.T.O.), ¶ 60. 108 Id. ¶ 123 n.92. 109 Id. ¶ 123. 110 Id. ¶ 124.

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IV. Recognition in State Practice Countries engage in a wide range of cautionary actions to protect their environments, and the burgeoning examples of such practices provide support for the conclusion that many countries recognize an international-law obligation to adhere to the precautionary principle. Among the many examples of national actions are: N Numerous nations from all parts of the globe have enacted national legislation recognizing the precautionary principle as a guiding principle of national environmental law.111 N Several national courts have applied the precautionary principle in domestic disputes, including the Supreme Courts of Pakistan and India and courts in Australia and the Netherlands.112 111

For a long list of such enactments, see Unger, supra note 83, at 660-63. See references in Unger, supra note 83, at 664 (citing Zia v. WAPDA, Human Rights Case No. 15-K (Pakistan S.C. 1992), at http://www.elaw.org/custom/custompages/resourceDetail.asp?provile_ID=280; Vellore Citizens Welfare Forum v. Union of India & Ors., (1995) 5 S.C.C. 647, 703, at http://www.elaw.org/custom/custompages/ resourceDetail.asp?profile_ID = 199; A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.), (1999) 2 S.C.C. 718, at http://www.supremecourtonline.com/; Leatch v. National Parks & Wildlife Service, (1993) 81 L.G.E.R.A. 270; Simpson v. Ballina Shire Council, (1994) 82 L.G.E.R. 392; Greenpeace Australia Ltd. v. Redbank Power Co., (1995) 86 L.G.E.R.A. 143). Of particular significance is Van der Endt-Louwerse B.V. et al. v. State Secretary of Transport, Public Works and Water Management, JM 2001/99 (Netherlands Administrative Law Division of the Council of State, 26 April 2001), where the court annulled a permit allowing shell extraction from the Wadden Sea, based on the precautionary principle, because uncertainties about the impact of the extraction on the ecosystem existed after the best available information was analyzed, and the benefit of the doubt should result in protecting the Wadden Sea. NILOS Newsletter, Feb. 2002, No. 19, at 5. Similarly, Australia’s courts have interpreted Australia’s Fisheries Management Act to require adherence to the precautionary principle to conserve resources and avoid serious or irreversible damage to the environment. See, for instance, Latitude Fisheries Pty, Ltd. v. Australian Fisheries Management Authority, [2002] FCA 416, 2002 WL 536814 (Fed. Ct. Australia, 2002). U.S. courts have not discussed the precautionary principle with any frequency yet. In Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999), the court ruled that a claim based in part on the precautionary principle did not present a cognizable claim as a violation of customary international law under the Alien Tort Claims Act, 28 U.S.C. § 1350, because the claimants had not shown that the principle enjoyed “universal acceptance in the international community” or had “articulable and discernable standards” sufficient to “constitute international environmental abuses or torts.” On the other hand, the Hawai`i Supreme Court ruled in In the Matter of Water Use Permit Applications, Waiahole Ditch Combined Contested Case Hearing, 9 P.3d 409, 466-67 (Hawai`i 2000), that “the precautionary principle simply restates the [Water] Commission’s duties under the [Hawai`i] constitution and [Hawai’i’s Water] Code. Indeed, the lack of full scientific certainty does not extinguish the presumption in favor of public trust purposes or vitiate the Commission’s affirmative duty to protect such purposes wherever feasible.” 112

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N

N N

N

The United States enacted the Sustainable Fisheries Act113 in 1996, which “takes a step towards precautionary actions” 114 by requiring a “proactive” response to a determination that a fishery is “overfished.”115 The appropriate regional fishery management council must within one year develop a new fishery management plan to stop the overfishing and rebuild the stock. The United States took action in late 1999 committing the government to conduct environmental reviews of its trade agreements.116 The Western Pacific Regional Fishery Management Council (of the United States) established “a precautionary management approach to fishery conservation and management” as evidenced by its establishment of a moratorium and then a limited-entry program “in response to the rapid entry of longline vessels into the Hawaii-based fleet.”117 The 1990 British White Paper entitled “This Common Inheritance: Britain’s Environmental Strategy”118 provides the following guide to all British governmental activities: “We must analyze the possible benefits and costs both of action and of inaction. Where there are significant risks of damage to the environment, the Government will be prepared to take precautionary action to limit the use of potentially dangerous pollutants, even where scientific knowledge is not conclusive, if the balance of the likely costs and benefits justifies it. This

The Hawai’i Supreme Court cited, as evidence that “‘[t]he precautionary principle’ appears in diverse forms throughout the field of environmental law,” the cases of Ethyl Corp. v. EPA, 541 F.2d 1, 20-29 (D.C. Cir. 1976), cert denied, 426 U.S. 941 (1976); Lead Industries v. EPA, 647 F.2d 1130, 1154-55 (D.C. Dir. 1980), cert. denied, 449 U.S. 1042 (1980); and Les v. Reilly, 968 F.2d 985 (9th Cir. 1992), cert. denied, 507 U.S. 950 (1993). “As with any general principle, its meaning must vary according to the situation and can only develop over time. In this case, we believe the [Water] Commission describes the [precautionary] principle in its quintessential form: at minimum, the absence of firm scientific proof should not tie the Commission’s hands in adopting reasonable measures designed to further the public interest.” 9 P.3d at 467. 113 Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996) (amending the Magnuson Act, 16 U.S.C. §§ 1801-82 (1976)). 114 Michele Territo, The Precautionary Principle in Marine Fisheries Conservation and the U.S. Sustainable Fisheries Act of 1996, 24 VT. L. REV. 1351, 1371 (2000). 115 Id. at 1372. See also City of Charleston, S.C. v. A Fisherman’s Best, Inc., 310 F.3d 155, 172 (4th Cir. 2002)(quoting Final Fishery Management Plan for Atlantic Tuny, Swordfish, and Sharks viii (April 1999) for the proposition that when “the United States Congress reauthorized the Magnuson-Stevens Act[, t]his authorization included a new emphasis on the precautionary approach in U.S. fishery management policy”). 116 Executive Order 13,141, Environmental Review of Trade Agreements, 64 Fed. Reg. 63, 169 (1999); see generally James Salzman, Executive Order 13, 141 and the Environmental Review of Trade Agreements, 95 AM. J. INT’L L. 366 (2001). 117 Western Pacific Regional Fishery Management Council, A 20-Year Report 26 (1998). 118 This Common Inheritance: Britain’s Environmental Strategy, Sept. 1990, Cm 1200.

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precautionary principle applies particularly where there are good grounds for judging either that action taken promptly at comparatively low cost may avoid more costly damage later, or that irreversible effects may follow if action is delayed.”

N

The European Community (EC) has been promoting reliance upon the precautionary principle “in the international arena, in general, and in the WTO [World Trade Organization], in particular.”119 The EC issued a “Communication” in 2000 stating that the precautionary principle is “a full-fledged and general principle of international law.”120

V. Is the Precautionary Principle a Rejection of the Scientific Method and a Formula for Doing Nothing? No. The precautionary principle does not reject science, but it does rest on the recognition that the physical sciences do not always provide all the answers, that social sciences and even the humanities are also valid sources of information and decisionmaking, and that concerns based on common fears are also relevant. Proportionality is always relevant, but grave harm—“the worst-case scenario”— must be considered, even if the likelihood of its occurrence seems relatively remote. Adherence to the precautionary principle does, in a sense, bias decisionmaking against innovation by slowing down the process of introducing new technologies, but this go-slow approach is justified by the realization that new development does not always deliver all that it promises and that change is frequently irreversible. If new technologies and new activities will, in fact, offer benefits, they can be introduced after meeting the burdens of proof required by the precautionary principle. Utilization of the precautionary principle will alter the “factual trigger” that requires precautions to be taken.121 Without this principle, those challenging a 119

Hans-Joachim Priess and Christian Pitschas, Protection of Public Health and the Role of the Precautionary Principle Under WTO Law: A Trojan Horse Before Geneva’s Walls? 24 FORDHAM INT’L L. J. 519, 520 (2000) (adding that “The EC relied on this principle in EC Measures Concerning Meat and Meat Products (Hormones), and it recently submitted a communication on the very same principle to the WTO Committee on Sanitary and Phytosanitary Measures. The Commission also published a communication on the precautionary principle . . . at the beginning of this year, and the Council issued a resolution on the precautionary principle at the Nice summit.”). 120 Communication on the Precautionary Principle, Communication from the Commission of the European Communities, COM (2000) 1 final (Feb.2, 2000), at http://europa.eu.int/comm/off/health_consumer/precaution.htm; see Mark Geistfeld, Reconciling Cost-Benefit Analysis with the Principle that Safety Matters More than Money, 76 N.Y.U. L. REV. 114, 176-78 (2001). 121 See, e.g., Vern R. Walker, Some Dangers of Taking Precautions Without Adopting the Precautionary Principle: A Critique of Food Safety Regulation in the United States, 31 ENVTL. L. REP. 10040 (2001).

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food additive, for instance, would have to prove that it is toxic, those challenging a new fishing activity would have to prove that it would have a negative impact on a species or ecosystem, and those challenging a shipment of a hazardous cargo or the construction of a nuclear power plant would have to prove that it is likely to cause actual pollution to the environment. But when the precautionary principle is utilized, the fears that affected human populations have about such activities become sufficient to induce caution and to require those wishing to undertake these initiatives to establish that the activities are safe, or, in appropriate cases, that the benefits outweigh the risks. Science is not ignored, but its role has changed, and the burden of persuasion is shifted. 122 In fact, the precautionary principle promotes more science, because it requires continuous monitoring as well as research into less-polluting alternatives. Some have said that the precautionary principle masks irrational fears of technology. But if the fears are irrational, then good science disseminated by those who are developing the technology can calm those fears and persuade the public that the project is sound.

VI. Summary and Conclusion It is easy and commonplace for commentators to criticize the precautionary principle as an aspiration without content, or as a feel-good “‘sound bite’ rather than a principle rooted in law.”123 But these criticisms fail to recognize the important shift in perspective that the precautionary principle exemplifies. It was not long ago that environmentalists were on the outside looking in, trying to warn governments and international organizations of the dangers facing our fragile ecosystems. But now these warnings—and the caution required to protect our depleted natural resources—are incorporated in international and national decisionmaking at the outset. How exactly these cautions translate into action varies with each problem, and we are still experimenting with the assessments and evaluations needed to ensure that changes are introduced with the required prudence. But it is still highly significant that in less than two decades, the perspective of our global community has changed from allowing developments to proceed automatically to requiring careful evaluation before the green light is given. At its core, the precautionary principle means that decisionmakers “must take precautionary measures (or avoid certain conduct and projects) when there is an expectation that a relevant activity may create adverse environmental interference, even in the absence of conclusive evidence displaying a relationship between cause and

122 Id. (“The burden of proof should always be on those who would relax precautions in order to obtain benefits. Moreover, lawmaking procedures affecting safety should place a high priority on transparency and public participation.”). 123 Deborah Katz, Note, The Mismatch Between the Biosafety Protocol and the Precautionary Principle, 13 GEO. INT’L ENVTL. L. REV. 949, 951 (2001).

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alleged effects.”124 It requires “an anticipatory response . . . in situations of uncertainty where a violation has not yet occurred and no harm has been done, but where a strong risk of such a violation exists.”125 With time and experience, the details of the precautionary principle will come into clearer focus. But already it has transformed the process of decisionmaking, by recognizing the validity of environmental concerns and by requiring some level of clarity and certainty before risky activities are begun.

124

Territo, supra note 114, at 1352 (citing JONAS EBBESSON, COMPATIBILITY OF IN119-20 (1996)). 125 John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 COLUM. J. ENVTL. L. 283, 337 (2000).

TERNATIONAL AND NATIONAL ENVIRONMENTAL LAW

CHAPTER 16

Deconstructing the Precautionary Principle Daniel Bodansky

If international environmental law were to develop Ten Commandments, the precautionary principle would be near the top of the list. Like the proscriptions against killing and theft, the precautionary principle is difficult to argue with. Who would acknowledge that an action they support is reckless? Who would prefer to be sorry than safe? As a result, the precautionary principle has become a staple of international environmental agreements,1 and at least one court has found it to be a rule of customary international law.2 But when we try to pin down exactly what the precautionary principle means, matters become more difficult. The problem is not simply one of vagueness—of applying an agreed norm in borderline situations. If this were the extent of the problem, then notwithstanding our inability to define precaution, we might still believe that we will know it when we see it. No, the problem is more fundamental, reflecting confusion about the core meaning of the term. This should not be surprising. For behind the simple allure of the precautionary principle lie a host of difficult issues. When is precaution warranted? In what

1

See ARIE TROUWBORST, PLE IN INTERNATIONAL LAW 63

EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIet seq. (2002) (precautionary principle has been incorporated in over fifty multilateral agreements). 2 Id. at 223-25 (discussing Indian Supreme Court decision in the Vellore case). 381

D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 381-91. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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ways should we be cautious? And how cautious should we be?3 Different international instruments have answered these questions in very different ways.4 Indeed, states cannot even agree on what to call the norm or whether it is a legal requirement. Some international instruments refer to a precautionary principle, others to a precautionary approach, reflecting the view of the United States that precaution is not a legal norm at all but rather a general policy orientation.5 Similarly, some formulations use mandatory language (“shall”) in characterizing the precautionary principle, others use hortatory language (“should”).6 This paper will undertake the limited task of surveying the various dimensions along which formulations of the precautionary principle vary. It will not assess, from a policy perspective, which version of the precautionary principle, if any, makes sense,7 or whether the precautionary principle has become a principle of customary international law.8 Nevertheless, the differing definitions 3 For an excellent discussion of these difficulties, see Christopher D. Stone, Is There a Precautionary Principle, 31 ENVTL. L. REP. 10790 (2001). 4 David VanderZwaag, The Precautionary Principle in Environmental Law and Policy: Elusive Rhetoric and First Embraces, 8 J. ENVTL. L. & PRAC. 355 (1999) (identifying 14 formulations of the precautionary principle in multilateral agreements and declarations). 5 TROUWBORST, supra note 1, at 4-6. A number of international instruments follow the U.S. terminology, referring to the precautionary approach rather than the precautionary principle. See, e.g., Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, art. 6, Sept. 5, 2000; Stockholm Convention on Persistent Organic Pollutants, art. 1, May 22, 2001, UNEP/POPS/ CONF/2, reprinted in 40 ILM 532 (2001). 6 Compare Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, Feb. 16, 1975, as amended June 10, 1995 (amendment not yet in force) (“shall”); U.N. Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, art. 5(c), Aug. 4, 1994, U.N. Doc. A/CONF.164/38, reprinted in 34 ILM 1542 (1995) (not yet in force) (same) with 1994 Sulphur Protocol to the 1979 Convention on LongRange Transboundary Air Pollution, June 14, 1994, preamble para. 4, reprinted in 33 ILM 1540 (1994) (“should”). 7 For critical assessments of the precautionary principle on policy grounds, see Jonathan H. Adler, More Sorry than Safe: Assessing the Precautionary Principle and the Proposed International Biosafety Protocol, 35 TEXAS INT’L L.J. 173 (2000); Daniel Bodansky, Scientific Uncertainty and the Precautionary Principle, 33 ENVT. 4 (1991); Frank Cross, Paradoxical Perils of the Precautionary Principle, 53 WASH. & LEE L. REV. 851 (1996); Stone, supra note 3. 8 In the World Trade Organization’s Beef Hormones case, the European Union argued in favor of the customary law status of the precautionary principle, while the United States argued against it. World Trade Organization, EC Measures Concerning Meat and Meat Products (Hormones), ¶ 16, 43, 60, AB-1997-4, Report of the Appellate Body, Doc. No. WT/DS26/AB/4, WT/DS48/AB/R (Jan. 16, 1998) [hereinafter Beef Hormones case]. Notwithstanding the EU position in the Beef Hormones case, individual European countries (including France and the United Kingdom) have argued against the customary law status of the precautionary principle when this suits their interests. See Peter H. Sand, The Precautionary Principle: A European Perspective, 6 HUMAN & ECOLOGICAL RISK ASSESSMENT 448 (2000). On the customary law issue, see generally Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 INDIANA J. GLOBAL LEG. STUD. 105 (1995), McIntyre & T. Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. ENVTL. L. 221 (1997).

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of the precautionary principle, and their generally platitudinous quality, suggest that the precautionary principle may not take us very far in addressing specific environmental problems.9

I. What Legal Function Does the Precautionary Principle Serve? The precautionary principle first appeared in an international instrument in 1987, but the idea of precautionary action has a much longer history in both national and, to some extent, international law.10 It originated in the context of marine pollution, but now is applied across the entire range of international environmental law. Although the precautionary principle is often treated as a single concept, it can serve three quite different legal functions, which are important to distinguish at the outset. Some formulations of the precautionary principle operate in a purely negative way, to exclude certain justifications for inaction. Others operate as a license to act; they permit but do not require precautionary measures. Still others create a positive duty to take precautionary action. In analyzing different formulations of the precautionary principle, it is vital to understand which of these three functions they serve.

A. The Precautionary Principle as a Reason not to Postpone Action due to Scientific Uncertainty The most common formulation of the precautionary principle is as an exclusionary reason. Traditionally, international agreements tended to make environmental action dependent on scientific evidence.11 For example, the 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources calls for regulation “if scientific evidence has established that a serious hazard may be created . . . and if urgent action is necessary.”12 The precautionary principle represents a rejection of this belief that environmental action must await scientific proof. As Christopher Stone notes, formulations of the precautionary principle along these lines articulate a triple negative: lack of scientific certainty is not a reason not to act. Principle 15 of the Rio Declaration on Environment and 9

For a more detailed elaboration of these conclusions, see Stone, supra note 3, at 10799 (“questioning the claim that there is a precautionary principle there”). 10 Sand, supra note 8. 11 See, e.g., International Convention for the Regulation of Whaling, art. V(2)(b); Dec. 2, 1946 (amendments of the Schedule shall be “based on scientific findings”); London Convention on the Prevention of Dumping of Hazardous Wastes and Other Matter, art. XV(2), 13 Nov. 1972, 1046 UNTS 120 (entered into force August 30, 1975) (amendments will be based on “scientific or technical considerations”). 12 Convention for the Prevention of Marine Pollution from Land-Based Sources, art. 4(4), June 4, 1974, reprinted in 13 ILM 352 (1974).

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Development is perhaps the best known example of this approach: it states that “lack of scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.”13 Similar formulations can be found in the U.N. Framework Convention on Climate Change14 and the IUCN Draft International Covenant on Environment and Development.15 Other similar provisions include: N The decision by the Ninth Conference of Parties to the Convention on International Trade in Endangered Species, stating that “scientific uncertainty shall not be used as a reason for failing to act in the best interest of the conservation of the species.”16 N The preamble to the Convention on Biological Diversity, which declares that “where there is threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.”17 N Article 6(2) of the Straddling Stock Convention, which states: “The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.”18 Article 8(7)(a) of the Stockholm Convention on Persistent Organic Pollutants, which provides that “lack of full scientific certainty shall not prevent [a] proposal [to list a chemical] from proceeding.”19 Note that, in all of these formulations, the precautionary principle does not create any affirmative duty to take environmental action. If such a duty exists, it must come from elsewhere. Instead, the effect of the precautionary principle is purely negative: States may, for other reasons, decide not to act, but they should not use scientific uncertainty as an excuse for inaction.

13

Rio Declaration on Environment and Development, principle 15, June 14, 1992, U.N. Doc. A/Conf.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874, 879 (1992). 14 U.N. Framework Convention on Climate Change, art. 3.3, May 29, 1992, 1771 U.N.T.S. 107, reprinted in 31 I.L.M. 849 (1992) (entered into force March 21, 1994). 15 Draft International Covenant on Environment and Development, IUCN Environmental Policy and Law Paper No. 31, at 40 (1995). 16 Resolution of the Conferences of the Parties, Criteria for Amendment of Appendices I and II, Ninth Meeting of the Conference of the Parties, Fort Lauderdale (USA), Nov. 7-18, 1994, Com. 9.24 [hereinafter CITES decision]. 17 Convention on Biological Diversity, preamble para. 9, June 5, 1992, 1760 UNTS 79, reprinted in 31 ILM 818 (1992) (entered into force Dec. 29, 1993). 18 Straddling Stocks Convention, supra note 6, art. 5(c). 19 POPs Convention, supra note 5, art. 8(7)(a). An expert group convened by the Commission on Sustainable Development to identify principles of international law formulated the precautionary principle in similar terms. Report of the Expert Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, Switzerland, Sept. 26-28, 1995, Background Paper No. 3 for the 4th Session of the Commission on Sustainable Development, New York (April 1996) [hereinafter CSD Expert Group].

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B. The Precautionary Principle as a License to Act In the trade context, the precautionary principle serves a different legal function; it operates as a license to act. In effect, the precautionary principle provides a justification for taking environmental measures that might otherwise be questionable as disguised barriers to trade.20 Consider, for example, the articulation of the precautionary principle in the 2000 Biosafety Protocol: Lack of scientific certainty due to insufficient relevant scientific information and knowledge . . . shall not prevent [a] Party from taking a decision, . . . in order to minimize [the] potential adverse effects [of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import].21 Here the precautionary principle arguably operates as a justification for the imposition of import restrictions on living modified organisms that otherwise might fall afoul of the WTO Sanitary and Phytosanitary Measures (SPS) Agreement, which requires states to base SPS measures on risk assessment and to apply those measures only to the extent necessary to protect human, animal and plant life or health.22 Under the Biosafety Protocol formulation, the precautionary principle does not require the importing state to impose any restrictions. Whether the importing state decides to do so is purely a matter of its discretion. The precautionary principle merely seeks to remove a legal barrier that might otherwise stand in its way. In the Beef Hormones case, the European Union invoked the precautionary principle in this manner, to justify a ban on the import of beef produced from cattle that had been fed growth hormones.23 Although the EU could not prove scientifically that beef growth hormones pose a threat to human health, it attempted to justify its measures on precautionary grounds, arguing that, in case of scientific uncertainty, countries should not be precluded from taking action. While the WTO appellate body did not accept that the precautionary principle justifies measures that would otherwise be inconsistent with trade rules, it recognized that the SPS Agreement itself allows governments to take precautionary action, on a provisional basis, in the face of scientific uncertainty.24

20 See generally CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW, THE LEGAL IMPLICATIONS OF THE PRECAUTIONARY PRINCIPLE FOR MULTILATERAL TRADE RULES, unpublished paper (March 22, 2000). 21 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, art. 11.8, Jan. 29, 2000, UNEP/CBC/ExCOP/1/L.5, reprinted in 39 ILM 1027 (2000). 22 WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), April 15, 1994, arts. 5.1 (requiring parties to base their SPS on risk assessment), id. art. 2.2 (requiring parties to apply SPS measures only to the extent necessary to protect human, animal and plant life or health). However, this interpretation of Article 11.8 of the Biosafety Protocol is undercut by the inclusion of a “savings clause” in the Protocol, which “emphasizes” that the Protocol shall not be interpreted as “implying a change in the rights and obligations of a Party under any existing international agreements.” Biosafety Protocol, preamble, para. 10. 23 Beef Hormones case, supra note 8. 24 Id. at para. 124. Article 5(7) of the SPS agreement allows states to adopt sanitary or phytosanitary measures on a provisional basis in cases where relevant scientific

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C. The Precautionary Principle as a Duty to Act By far the strongest versions of the precautionary principle are those that create a duty to act. Some of these formulations articulate the duty in general terms, as a duty to take preventive measures even in cases of uncertainty. The 1992 Baltic Sea Convention, for example, provides that states “shall ... take preventative measures when there is a reason to assume that substances or energy introduced, directly or indirectly, into the marine environment, may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the seas even when there is no conclusive evidence of a causal relationship between inputs and their alleged effects.” 25 Along similar lines, one commentator argues that the precautionary principle “dictates that in the face of environmental hazards, ... preventive and abatement action must be taken even where uncertainty of whatever nature remains.”26 Other formulations of the precautionary principle create more specific duties. For example, a resolution adopted under the Paris Convention for the Prevention of Marine Pollution from Land-Based Sources provides that, when a defined threshold of risk is crossed, states should use “best available technology” to reduce polluting emissions at source.27 The World Charter for Nature also calls for the use of “best available technologies” to minimize significant risks to nature.28 The Bamako Convention contains an even more general duty on Parties to prevent the release into the environment of harmful substances.29 These duties will be explored in greater detail in section III.2 below.30

II. The Trigger: When Is a Precautionary Approach Warranted? Regardless of the legal function served, formulations of the precautionary principle have the same basic structure: if a threshold of risk is crossed (the evidence is insufficient, while seeking additional information in order to make a more objective assessment of risk. 25 Helsinki Convention for the Protection of the Marine Environment of the Baltic Sea Area, art. 3(2), April 9, 1992; see also Bergen Declaration (“Environmental Measures must anticipate, prevent and attack the causes of environmental degradation.”) 26 TROUWBORST, supra note 1, at 286. 27 PARCOM Recommendation 89/1 on the Principle of Precautionary Action, June 22, 1989. 28 World Charter for Nature, para. 11, Oct. 28, 1982, UNGA Res. 37/7, U.N. Doc. A/Res/37/7 (1982), reprinted in 22 I.L.M. 455 (1983). 29 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, art. 4(3)(f), Jan. 29, 1991, reprinted in 30 ILM 773, 781 (1991). 30 Some of the formulations are very tentative as to whether there is any duty to take precautionary action. For example, the expert group convened by the Commission on Sustainable Development to examine principles of international environmental law concluded only that the precautionary principle “could” require that harmful activities be regulated. CSD Expert Group, supra note 19, at para. 72.

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trigger), then a precautionary approach is warranted (the response). Both sides of this equation, however, have many possible values, which are reflected in different versions of the principle. Consider, first, the trigger. Under what circumstances are precautionary measures warranted? In answering this question, three factors may be relevant: (1) the severity of the potential harm, (2) the likelihood or evidence of that harm, and (3) the source of the harm.

A. Severity of Potential Harm Most formulations of the precautionary principle limit its application to threats that raise special environmental concerns because of their magnitude and/or type.31 Among the standards that have been put forward are the following: Persistence, toxicity and liability to bioaccumulate—Three years after the Second North Sea Conference articulated the precautionary principle in terms of protection against the damaging effects of the most dangerous substances, the Third North Sea Conference identified three characteristics that make substances particularly dangerous and that therefore warrant application of the precautionary principle: persistence, toxicity and liability to bioaccumulate.32 The North Sea Ministerial Declaration provided that countries should take action to avoid potentially damaging impacts of substances with these three characteristics, even when there is no scientific evidence to prove a causal link between emissions and effects. Serious or irreversible harm—The Rio Declaration on Environment and Development enunciates the most widely-used trigger for the precautionary principle, namely a threat of “serious or irreversible damage.”33 This formulation suggests that harms with either of two characteristics can trigger application of the precautionary approach: (1) high intensity or geographical scope or (2) a very long time scale. A UNEP group meeting gave as examples of “serious or irreversible harm,” “extinction of species, widespread toxic pollution or major threats to essential ecological processes.”34 In contrast to these formulations that make the precautionary applicable only to serious environmental harms, the Bamako Convention on Hazardous Wastes in Africa adopts a much broader standard, which urges states to prevent the release 31 For example, the very first international articulation of the precautionary principle, in the Final Declaration of the Second North Sea Conference, spoke of protecting the North Sea against the “possibly damaging effects of the most dangerous substances.” Second International Conference on the Protection of the North Sea: Ministerial Declaration Calling for Reduction of Pollution, art. VII, Nov. 25, 1987, reprinted in 27 ILM 835 (1988) (emphasis added). 32 Declaration of the Third International Conference on Protection of the North Sea, March 7-8, 1990, reprinted in 1 Y.B. INT’L ENVTL. L. 658, 662-73 (1990). 33 Rio Declaration, supra note 13, principle 15. Irreversibility is identified as a cause for concern in many international instruments, including the World Charter for Nature. 34 UNEP, Final Report of the Expert Group Workshop on International Environmental Law Aiming at Sustainable Development, ¶ 47, Doc. No. UNEP/IEL/WS/3/2 (Oct. 4, 1996) [hereinafter UNEP Expert Meeting].

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into the environment of any substance that “may cause harm to humans or the environment,”35 without any specification of a minimum level of risk or any explicit de minimis exception.36

B. Evidence of Harm Although formulations of the precautionary principle vary significantly, the one fixed star in the precautionary firmament is that scientific certainty is not a prerequisite for environmental action and, conversely, that lack of scientific certainty does not justify inaction. But this leaves open the question: Is any scientific evidence at all required of a potential threat before precautionary action is warranted, or justified, or required? And, if so, how much evidence? Or can mere speculation or fear trigger application of the precautionary principle? Negative formulations—Many if not most articulations of the precautionary principle do not go beyond a purely negative formulation: they define the type of evidence or proof that is not required (“full scientific certainty,”37 “absolutely clear scientific evidence”38 “conclusive evidence”39), but do not define what positive evidence of an environmental risk is needed in order to trigger application of the precautionary principle. In themselves, these negative formulations seem unexceptionable. “Full scientific certainty” or “absolutely clear scientific evidence” is rarely if ever achievable, so requiring such evidence as a prerequisite for action would be unreasonable. But, without an articulation of what evidence is needed of a potential threat, these standards seem to suggest that the precautionary principle is applicable whenever there is uncertainty—which, in effect, means always. Positive formulations—A purely negative evidentiary standard may be appropriate when the precautionary principle is intended only to exclude the use of uncertainty as an excuse for inaction. But, to the extent that the precautionary principle is used to justify or require environmental action, then a purely negative evidentiary standard is inadequate. For example, if the precautionary creates a duty to prevent “serious or irreversible” threats, then we need to know how much evidence is required that a threat is, in fact, “serious or irreversible.” Existing formulations of the precautionary principle address this issue only in broad, qualitative terms. The Baltic Sea Convention, for example, requires that there be “reason to assume” that an activity is risky, 40 while a UNEP expert 35

Bamako Convention, supra note 29, art. 4(3)(f). Trouwborst claims that it is an open question “whether . . . [the precautionary principle] requires a certain threshold of gravity of likely harm to be met for the principle’s application to be triggered.”). Supra note 1, at 286. 37 E.g., Bergen Declaration on Sustainable Development in the ECE Region, para. 7, May 16, 1990, U.N. Doc. A/CONF.151/PC/10, reprinted in 1 Y.B. INT’L ENVTL. L. 430 (1990). 38 E.g., Second North Sea Declaration, supra note 31, art. VII. 39 Convention for the Protection of the Marine Environment of the North-East Atlantic, art. 2(2)(a), Sept. 22, 1992, reprinted in 32 ILM 1069 (1993). 40 Baltic Sea Convention, supra note 25, art. 3(2) (must be “reason to assume” that substances are hazardous); North East Atlantic Convention, art. 2(2)(a) (same). 36

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group on environmental that the risk must be “identifiable.”41 These formulations suggest that mere speculation is not enough to trigger application of the precautionary principle, but do not define the quantum of evidence required more precisely.42

C. Source of Potential Harm A final basis for narrowing the scope of the precautionary principle is to limit it to new activities or technologies. Such an approach could be justified on environmental grounds (the risks of new activities are in general less well understood than existing activities, making precaution appropriate) or on pragmatic grounds (it is more difficult to stop something that is already underway than something that has not yet begun). Thus far, none of the formulations of the precautionary principle has explicitly taken this approach. But to the extent that an international agreement containing the precautionary principle focuses on new activities, then the scope of the principle will, in effect, be limited in this way.

III. The Response: What Constitutes a Precautionary Approach? A. To Whom Does the Precautionary Principle Apply? Ordinarily, international norms apply to the individual states that have accepted them. But some formulations of the precautionary principle suggest that it is instead addressed to states collectively in their efforts to develop and apply international environmental law.43 The premise seems to be that, just as, in certain circumstances, individual countries should not use scientific uncertainty as a reason to postpone action, sometimes parties to a treaty should not do so either. For example, the decision by the CITES parties to incorporate the precautionary principle into the listing procedure for threatened or endangered species provides: “When considering any proposal to amend Appendix I or II, the Parties shall apply the precautionary principle so that scientific uncertainty should not be used as a reason for failing to act in the best interest of the

41

UNEP Expert Meeting, supra note 34, ¶ 47. In several German cases questioning the safety of electromagnetic fields from cellular phone networks, German administrative courts have distinguished actionable risks from mere “concerns.” See Sand, supra note 8, at 450. The WTO Appellate Body has also taken the view that, in order to adopt SPS measures, there must be an ascertainable risk to human or animal life. Australia - Measures Affecting Importation of Salmon, AB-1999-5, Report of the Appellate Body, Doc. No. WT/DS18/AB/R (Oct. 20, 1998), available at . 43 See also CSD Expert Report, supra note 19, para. 72 (“The principle provides guidance for the development and application of international environmental law.”). 42

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conservation of the species.”44 Along similar lines, the preamble to the Montreal Protocol states the determination of the parties to take “precautionary measures to control equitably total global emissions of substances that deplete [the ozone layer].”45

B. What Constitutes Precautionary Action? Undoubtedly the most difficult question raised by the precautionary principle concerns its substantive implications. Previously, we considered the possible legal ramifications of the precautionary principle. Now, we need to consider, from a substantive standpoint, what concrete policies or measures constitute a precautionary approach. Many formulations of the precautionary principle are, of course, silent on this question. They merely state that uncertainty is not a basis to postpone action; but they do not indicate what types of action might be considered precautionary. But some formulations do articulate substantive elements of a precautionary approach: N Preventive action—The most common articulation of a precautionary approach is in terms of preventative action. The World Charter for Nature, for example, provides that activities that “are likely to cause irreversible damage to nature shall be avoided.”46 Similarly, the Bergen Declaration states that “environmental measures must anticipate, prevent and attack the causes of environmental degradation.”47 Unless these general statements are intended to create an absolute duty of prevention, however, they leave many important questions open, including, in particular, whether the environmental benefits of action should be weighed against the economic costs. N Shifting the burden of proof—Rather than create an absolute duty of prevention whenever an activity creates a risk of environmental harm, some versions of the precautionary principle simply shift the burden of proof. Traditionally, international environment law placed the burden on the person opposing an activity to prove that it would damage the environment. Some versions of the precautionary approach would reverse this, placing the burden on proponents of an activity to prove that 44 CITES decision., supra note 16; see also International Convention on the Control of Harmful Anti-Fouling Systems on Ships, Oct. 18, 2001, art. 6(3), IMO Doc. AFS/CONF/26 (IMO Marine Environment Protection Committee shall apply the precautionary principle in considering proposed amendments to controls of anti-fouling systems). 45 Montreal Protocol on Substances that Deplete the Ozone Layer, preamble, Sept. 16, 1987, 1522 UNTS 3 (entered into force Jan. 1, 1989). 46 World Charter, supra note 28, para. 11. 47 Bergen Declaration, supra note 37, para. 7. See also Baltic Sea Convention, supra note 25, art. 2(5)(a) (defining “precautionary principle” in terms of “taking preventative measures when there is reason to assume that a substance . . . may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea”).

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N

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it is safe.48 Since proof of safety is often difficult, the effect of shifting the burden of proof can be to stop an activity from proceeding. Best available technology / clean production methods—Some versions of the precautionary principle set forth more specific requirements to use the best available technology,49 or clean production methods (as opposed to basing permissible emissions on calculations of assimilative capacity).50 Cost-effectiveness—Finally, many formulations of the precautionary principle provide that precautionary measures should be cost-effective. For example, the UNFCCC states that precautionary measures to anticipate, prevent or minimize climate change “should be cost-effective so as to ensure global benefits at the lowest possible cost.”51

IV. Conclusion In assessing the precautionary principle, Christopher Stone acknowledges, “Caution should be high on everyone’s agenda. The proponents of the precautionary principle deserve credit for their effective and insistent advocacy.”52 That said, the various formulations of the precautionary principle put forward thus far have not moved the international community towards consensus about what it means to take a precautionary approach. They differ along virtually every important dimension: the legal status and function of the precautionary principle; the circumstances that trigger its application; the nature of a precautionary response, even what the norm should be called (precautionary principle or precautionary approach). Virtually the only point of overlap is a truism, namely, that lack of full scientific certainty is not, in itself, a basis to postpone some type of action. The result, as Christopher Stone notes, is that the precautionary principle is in “disarray.”53 Giving it meaning will require hard thinking about what it means to be cautious in particular contexts, rather than continued incantations of the same old formulations.

48 Peter Sand has called this the “most radical variant” of the precautionary principle. Sand, supra note 8. 49 Paris Commission Recommendation 89/1 on the Principle of Precautionary Action, 22 June 1989, quoted in Trouborst, supra note 1, at 305; World Charter, supra note 28, para. 11. 50 Bamako Convention, supra note 29, art. 3(f); Resolution LDC 44/14 on the Application of the Precautionary Approach to Environmental Protection within the Framework of the London Dumping Convention, Dec. 30, 1991, LDC Doc. 14/16. 51 UNFCCC, supra note 14, art. 3.3; see also Amendment of June 10, 1995 to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution, Feb. 16, 1976 (amending art. 4(3)(a)). 52 Stone, supra note 3, at 10799. 53 Id.

CHAPTER 17

Finding Out What the Oceans Claim: The 1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission David D. Caron1

I. Introduction A singularly important innovation has occurred as regards the protection of the environment through international institutions. This chapter discusses that innovation as it arose in the work of the United Nations Compensation Commission (“UNCC”) on the environmental claims arising out of the 1991 Gulf War. Despite its fundamental importance, this signal innovation can be overlooked. To approach the innovation, one need appreciate how a focus on the needs of the environment dramatically alters political interactions. In the diplomatic negotiation of a treaty, for example, state parties normally seek a deal that addresses their interests. When the issue addressed involves the environment, however, the negotiation is radically more complex. 1

Professor Caron served as a Commissioner with the E2 Panel of the United Nations Compensation Commission from 1996 to 2003. The views expressed are his own and do not reflect the views of the UNCC. He wishes to thank Susan Spencer, Julia Klee, and Cymie Payne for their comments and Leah Harhey for her invaluable assistance in the preparation of this manuscript. 393 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 393-415. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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In diplomatic negotiations concerning environmental matters there is the added and quite different task of the parties seeking to discover precisely what the environment requires. In this sense, the environment is an unobtrusive, but central presence in the negotiations. It is a party that does not volunteer information, but may answer questions if asked correctly. It is also a party that refuses to negotiate.2 In the case of diplomatic negotiations, the institutional challenge is to devise mechanisms by which the negotiators may interrogate the environment as to its needs and adapt the regime to that process of learning. A basic point of this chapter is that this institutional challenge arises not only in diplomatic negotiation, but also in claims resolution processes when a claim concerning the environment is presented. This raises the closely related question of what precisely constitutes a claim concerning the environment, a more elusive question than what one might at first think. Fundamentally, an environmental claim is a claim for remediation of damage sustained by the environment. In this situation, the claimant is an agent for the environment, not a principal seeking compensation for itself.3 If claimant is principal, then an award of damages may be used as the claimant sees fit. If the claimant is an agent, however, then the award of damages is intended to go to the betterment of the environment harmed. In attempting to address the consequences of war for the environment, one may attempt to prevent war or to prevent an on-going war from extending to particularly sensitive environments.4 Often, however, despite such efforts, war 2 See David D. Caron, Protection of the Stratospheric Ozone Layer and the Structure of International Environmental Law-Making, 14 HASTINGS INT’L & COMP. L.Q. 755, 773 (1991). 3 For a discussion of agency, see David D. Caron, The Place of the Environment in International Tribunals, in THE ENVIRONMENTAL CONSEQUENCES OF WAR: LEGAL, ECONOMIC AND SCIENTIFIC PERSPECTIVES 250, 253-54 (Jay E. Austin & Carl E. Bruch, eds., Cambridge University Press, 2000) ( “[A]t its root, the question that must be addressed is how a claims process may be said to be about the environment, or, in a more conventional sense, about the representation of a community’s interest in the environment. . . . In other words, is the claimant a principal in possession of an asset called the environment that been damaged, or is the claimant instead an agent executing the directions and will of a community (the principal) regarding the environment”). 4 For recent discussions, see Bernard H. Oxman, Environmental Warfare, 22 OCEAN DEV. & INT’L L. 433 (1991); Florentino P. Feliciano, Marine Pollution and Spoliation of Natural Resources as War Measures: A Note on Some International Law Problems in the Gulf War, 14 HOUSTON J. INT’L L. 483 (1992); Michael D. Diederich, Jr., “Law of War” and Ecology—A Proposal for a Workable Approach to Protecting the Environment Through the Law of War, 136 MIL. L.REV. 137 (1992); Wolff Heinschel von Heinegg and Michael Donner, New Developments in the Protection of the Natural Environment in Naval Armed Conflicts, 19 GERMAN Y.B. INT’L L. 281; Glen Plant, Legal Aspects of Marine Pollution during the Gulf War, 7 INT’L J. EST. & COASTAL L. 217 (1992); Anthony Leibler, Deliberate Wartime Environmental Damage: New Challenges for International Law, 23 CAL. W. INT’L L.J. 67 (1992); Katherine Kelly, Declaring War on the Environment: The Failure of International Environmental Treaties During the Persian Gulf War, 7 AM. U. J. INT’L L. & POL’Y 921 (1992); Walter G. Sharp, Sr., The Effective Deterrence of Environmental Damage During Armed Conflict: A Case Analysis of the Persian Gulf War, 137 MIL. L. REV. 1(1992) Stephanie N. Simonds, Conventional Warfare and Envi-

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has significant impacts on the fundamental structure of our world, the environment.5 The specific institutional challenge discussed in this paper is that of a tribunal considering remediation of damage to the environment when the extent —or even existence—of damage is poorly understood. Scholars often call for liability regimes both to compensate for acts damaging to the environment and to deter such actions in the future. But what was the damage to the environment? As in diplomatic negotiations, the environment can be viewed as a participant in a claims process. The challenge is that the environment is a difficult client, it does not volunteer the information needed. The environment may respond to determined interrogation as to the harm it suffered, but even then one may fail to ascertain and present to the tribunal the full extent of harm suffered. How are the parties or the claims institution to find out what the environment claims? It is possible that the state (or another agent) presenting a claim for damage to its environment will expend the funds necessary to interrogate the environment and ascertain the contours of the damage it suffered. But are those expenses also a part of the damage claimed? What happens when states can not afford the costs of interrogating the environment or politically cannot allocate such funds given other priorities? How can the claims process, rather than the claimant, be a part of ascertaining what the environment, and in this instance the oceans, claim? This chapter examines the first decision in the UNCC’s path breaking efforts to address the damage to the environment caused by the Gulf War; it will do so particularly as such damage relates to the marine environment. Part II introduces briefly the mandate and organization of the UNCC in the environronmental Protection: A Proposal for International Legal Reform, 29 STAN. J. INT’L L. 165(1992); Michael N. Schmitt, Green War: An Assessment of the Environmental Impact of International Armed Conflict, 22 YALE J. INT’L L. 1(1997); Florencio J. Yuzon, Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons: “Greening” the International Laws of Armed Conflict to Establish an Environmentally Protective Regime, 11 AM. U. J. INT’L L. & POL’Y 793 (1996); Richard Falk, The Environmental Law of War, in ENVIRONMENTAL PROTECTION AND THE LAW OF WAR 78 (Glen Plant ed., 1992); Adam Roberts, The Law of War and Environmental Damage, in THE ENVIRONMENTAL CONSEQUENCES OF WAR 47 (Jay E. Austin & Carl E. Bruch, eds., 2000); Michael N. Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, in THE ENVIRONMENTAL CONSEQUENCES OF WAR 87 (Jay E. Austin & Carl E. Bruch, eds. , 2000); Christopher D. Stone, The Environment in Wartime: An Overview, in THE ENVIRONMENTAL CONSEQUENCES OF WAR 21 (Jay E. Austin & Carl E. Bruch, 2000). See also ENVIRONMENTAL WARFARE: A TECHNICAL, LEGAL, AND POLICY APPRAISAL (A. Westing ed., 1984); ENVIRONMENTAL PROTECTION AND THE LAW OF WAR (G. Plant ed., 1992); and William M. Arkin, Damian Durrant and Marianne Cherni, MODERN WARFARE AND THE ENVIRONMENT: A CASE STUDY OF THE GULF WAR (1991). 5 For a recent significant statement of this view, see Principle 24 of the Rio Declaration on Environment and Development (1992). For relatively early and explicit international statements of this view, see the Preamble of the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques recommended for adoption by states by U.N. General Assembly Res. 31/72 (10 Dec. 1976), entered into force 5 Oct. 1978, 1108 UNTS 151; and U.N. General Assembly Res. 35/8 (30 Oct. 1980) entitled “Historical responsibility of states for the preservation of nature for present and future generations.”

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mental area. Part III discusses the first report of the Panel of Commissioners dealing with the environmental claims, and in particular it assesses how the claims regarding the marine environment fared.

II. The United Nations Compensation Commission: Its Mandate and Organization in the Environmental Area In January of 1991, Coalition forces acting under Security Council resolution 678 began an aerial bombardment to prepare the way for a land assault to reverse Iraq’s unlawful invasion and occupation of Kuwait. In reaction, President Saddam Hussein of Iraq initiated a series of devastating actions. He ordered the release of millions of barrels of oil into the Persian Gulf. He ordered the lighting of more than six hundred oil wells.6 These actions stunned the world, and the extent of the damage that resulted in many respects remains unknown. As a part of the cease fire resolution for the war, the United Nations looked to create a compensation commission to, among other things, resolve claims for damage to the environment. Security Council Resolution 687 affirmed that Iraq: is liable under international law for direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait7

The Security Council through the same resolution created the UNCC to decide upon claims alleging such damage. The inclusion of the specific phrase concerning the environmental impact of the war—including environmental damage and the depletion of natural resources—reflected the Council’s awareness of the enormity of the actions of President Hussein. The UNCC was established several months later in the summer of 1991. It has three bodies within it: (1) Panels of Commissioners, (2) a Governing Council which both adopts policy guidance for Commissioners and approves the report and recommendations of Commissioners, and (3) a Secretariat. The Commissioners were organized in Panels of three. The Panels were organized to handle different portions of the UNCC’s docket: first by the nature of the claimant (Categories A though D involved claims of individuals; Category E, the claims of corporations; and Category F, the claims of government and international organizations), and second by the type of claim within that category. One of these Panels has as its docket the claims for damage to the environment and to public health and safety. In the parlance of the UNCC, this is the “F4” panel, that is, the fourth Category “F” Panel. 6 For a detailed discussion of the actions taken by President Hussein and particularly their impact on the marine environment, see Mahmood Y. Abdulraheem, War-Related Damage to the Marine Environment in the ROPME Sea Area, in THE ENVIRONMENTAL CONSEQUENCES OF WAR 338 (Jay E. Austin & Carl E. Bruch, eds., 2000). 7 S.C. Res. 687, U.N. SCOR, 2981st mtg., para. 16, U.N. Doc. S/RES/687 (1991) (emphasis added).

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It is important to note that although the UNCC is an unparalleled success in the history of claims resolution (if for no other reason than that it had by 1998 resolved the claims of, and provided actual compensation to, over two and half million individuals injured by the war), the UNCC in its early years was not decisive in addressing the claims as to the environmental and public health consequences of the Gulf War.8 Indeed, it was only as the individual claims approached their full resolution in 1998 that the UNCC took concrete steps to address the environmental claims. In that year, the Governing Council appointed a distinguished panel of Commissioners to address the claims (Peter H. Sand, Jose R. Allen and Thomas A. Mensah as Chairman) and the Secretariat built up an impressive and dedicated staff under the direction of Julia Klee to assist the Panel in its work. Since that time, the Panel and Secretariat have displayed tremendous initiative and expended great energy toward the prompt resolution of this category of claims. By the time the F4 Panel began its work, the UNCC had already developed a substantial jurisprudence. The Governing Council provides guidance to panels on claims resolution through “Decisions,” and the seventh Decision provided the Commissioners initial guidance as to what were to be considered compensable losses. Recalling that Security Council resolution 687 provided for compensation “for direct loss, damage, including environmental damage,” Governing Council decision 7 explains that a loss for which a claim is made by a government or international organization is direct if it is suffered as a result of: (a) military operations or threat of military action by either side during the period of 2 August 1990 to 2 March 1991; (b) departure of persons from or their inability to leave Iraq or Kuwait during the same period; (c) actions by Iraqi government officials or agents connected to the invasion or occupation; (d) the breakdown of 8 See David D. Caron, The UNCC and the Search for Practical Justice, in THE UNITED NATIONS COMPENSATION COMMISSION, 367, 375-77 (R. Lillich ed., 1995), originally presented at the Sokol Colloquium, “The United Nations Compensation Commission,” University of Virginia, April 16, 1994; and David D. Caron, The Place of the Environment in International Tribunals, in THE ENVIRONMENTAL CONSEQUENCES OF WAR: LEGAL, ECONOMIC AND SCIENTIFIC PERSPECTIVES 250, 262-63 (Jay E. Austin & Carl E. Bruch, eds., Cambridge University Press, 2000), originally presented at the “The First International Conference on Addressing the Environmental Consequences of War,” The Smithsonian Institution, Washington, D.C., June 12, 1998. See also Tiffani Y. Lee, Note, Environmental Liability Provisions Under the U.N. Compensation Commission: Remarkable Achievement with Room for Improved Deterrence, 11 GEO. INT’L ENVTL. L. REV. 209, 216 (1998) (“It is arguable that this delay [of seven to eight years before the F claims were first addressed] has diminished somewhat the full deterrent effect of the environmental liability provisions under the UNCC.”). For other discussions of the UNCC’s work in the environmental area, see Mojtaba Kazazi, Environmental Damage in the Practice of the U.N. Compensation Commission, in ENVIRONMENTAL DAMAGE IN INTERNATIONAL AND COMPARATIVE LAW: PROBLEMS OF DEFINITION AND VALUATION (Michael Bowman and Alan Boyle, eds., 2002); Luan Low & David Hodgkinson, Compensation for Wartime Environmental Damage: Challenges to International Law After the Gulf War, 35 VA. J. INT’L L. 405 (1995); John Briscoe, Iraq’s Defilement of the Gulf Environment, and the Damages Awards to Come, presented in London on January 7, 1999 at the 23rd Annual Conference “Current Maritime Issues and the International Maritime Organization” (paper on file with author).

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civil order in Kuwait or Iraq during this period; and (e) hostage-taking or other illegal detention.9 As to environmental claims specifically, paragraph 35 of Decision 7 further provides that “direct environmental damage and depletion of natural resources” include losses or expenses resulting from: (a) Abatement and prevention of environmental damage * * *; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluation and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings * * *; and (e) Depletion of or damage to natural resources.10

The first installment of claims decided by the F4 Panel relates in its entirety to monitoring and assessment claims described in paragraphs 35(c) and (d). The practical significance of this category of loss is that it provides a vehicle for potentially funding the cost of interrogating the environment as to the scope of damages that occurred.

III. The First Decision of the F4 Panel A. The Focus of the First Installment on Claims for “Monitoring and Assessment” On June 20th 2001, the Governing Council of the UNCC approved the “Report and Recommendations Made by the Panel of Commissioners Concerning the First Installment of ‘F4’ Claims” (the “Report”).11 The first F4 installment consisted of 107 claims seeking monitoring and assessing costs in a total amount of $1,007,412,574. The Report recommended compensation of $243,234,967 to five claimant Governments. (See Table 17.1). The Claimants alleged that Iraq’s invasion and occupation of Iraq had resulted in damage to their environments and natural resources in the form of damage from air pollution, depletion of water resources, groundwater pollution,

9

Governing Council decision 7 (S/AC.25.1991/7/Rev.1), para. 34. Governing Council decision 7 (S/AC.25.1991/7/Rev.1), para. 35. 11 UNCC Report and Recommendations Made by the Panel of Commissioners Concerning the First Installment of “F4” Claims (28 March 2001) (Environment and Public Health Monitoring and Assessment Claims Arising Out of the Gulf War filed by Iran, Jordan, Kuwait, Saudi Arabia, Syria and Turkey) (hereinafter “Report”) available at http://www.unog.ch/uncc/reports/r01-16.pdf, approved by UNCC Governing Council Decision 132 (June 21, 2001) available at http://www.unog.ch/uncc/decision/ dec_132. pdf. 10

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Table 17.1. Summary of Claims and Awards for Monitoring and Assessment Claimsa Country

Total Number of Claims

Amount Claimed (USD)

Amount Recommended (USD)

40 10 22 24 10 1

42,951,383 12,488,949 460,421,114 482,156,943 5,623,885 3,770,300

17,007,070 7,060,625 108,908,412 109,584,660 674,200 nil

107

1,007,412,574

243,234,967

Iran Jordan Kuwait Saudi Arabia Syria Turkey Total

a This table reproduces Table 14 of the Report of the Commissioners, see Report, page 127.

destruction of cultural heritage resources, oil pollution in the Persian Gulf, degradation of coastlines, depletion of fisheries, injury to wetlands and rangelands, injury to forestry, agriculture and livestock, and injury or risk of injury to public health.12 They asserted that these various damages resulted from five general sources: (1) the release and transport into Claimants’ territories of airborne pollutants caused by oil fires; (2) numerous oil rivers and lakes formed by oil from destroyed oil wells that did not ignite; (3) the release by the Iraqi military of millions of barrels of oil into the sea; (4) disruption of fragile desert ecosystems and coastal terrain by the movement of military vehicles and personnel, the construction of military trenches and fortifications, and the emplacement of mines; and (5) adverse environmental impacts from the transit and settlement of thousands of refugees and involuntary emigrants from Iraq and Kuwait.13 The claims for monitoring and assessment made in the first installment involved three different types of activities.14 First, the Claimants in some instances sought to investigate whether environmental damage or depletion of natural resources had in fact occurred. Second, the Claimants in other cases submitted proposals to quantify the loss or depletion. Third, the Claimants proposed to investigate methodologies to abate or mitigate the damage or depletion. In some cases, the monitoring and assessment work had already occurred, but in most cases it had not. It is crucial to observe that the first installment claims for monitoring and assessment were reviewed prior to the review and determination of compensa12

Report, para. 13. Report, para. 14. 14 Report, para. 28. 13

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bility of any substantive claims.15 Therefore, in seeking monies for monitoring and assessment there was not necessarily any proof that damage had actually occurred.16 The heart of the Panel’s decision is that monitoring and assessment activities are critical to proving the existence of damage and thus the Panel determined that conclusive proof of environmental damage was not a prerequisite for a monitoring and assessment activity to be compensable.17 The Panel wrote: 29. The monitoring and assessment claims present special problems in that they are being reviewed before decisions have been taken on the compensability of any substantive claims. Thus, the claims are being reviewed at a point where it may not have been established that environmental damage or depletion of natural resources occurred as a result of Iraq’s invasion and occupation of Kuwait. Yet, the results of the monitoring and assessment activities may be critical in enabling claimants to establish the existence of damage and evaluate the quantum of compensation to be claimed. Hence, although it may be correct in some cases to say that a claimant is seeking compensation for monitoring and assessment without prior proof that environmental damage has in fact occurred, it would be both illogical and inequitable to reject a claim for reasonable monitoring and assessment on the sole ground that the claimant did not establish beforehand that environmental damage occurred. To reject a claim for that reason would, in effect, deprive the claimant of the opportunity to generate the very evidence that it needs to demonstrate the nature and extent of damage that may have occurred. 30. For that reason, the Panel does not consider that conclusive proof of environmental damage is a prerequisite for a monitoring and assessment activity to be compensable in accordance with paragraph 35 of Governing Council decision 7. In the view of the Panel, the purpose of monitoring and assessment is to enable a claimant to develop evidence to establish whether environmental damage has occurred and to quantify the extent of the resulting loss.

The Panel, however, did require that monitoring and assessment activities not be purely theoretical or speculative, having only tenuous links to damage resulting from the invasion and occupation.18 Rather, there had to be a nexus between the activity and damage directly attributable to Iraq’s aggression.19 In assessing this nexus, the Panel considered: (a) whether there was a possibility of damage or depletion as judged by the plausibility that pollutants released in the invasion could have impacted the Claimants’ territories; (b) whether the particular areas to be studied could have been affected as determined by examining possible pathways and media for transport of pollutants; (c) whether there was evidence of environmental damage or risk of such damage; and (d) whether

15

Report, para. 29. Id. 17 Report, para. 30. 18 Report, para. 31. 19 Id. 16

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there was a reasonable prospect that the activity would produce results that could assist the Panel in reviewing a related subsequent substantive claim.20 In determining the compensability of a particular claim, the Panel considered the circumstances of the claim, including the nature of the damage to be assessed, the location and purpose of the activity, the general acceptance of the scientific criteria and methodologies to be used, and the likelihood that such a study would produce information helpful in identifying environmental damage or in mitigating it.21 The fact that the damage revealed by a monitoring and assessment activity could have been wholly or partly caused by factors unrelated to the invasion did not automatically rule out the possibility of compensation.22 In assessing the claims, the Panel stressed coordination between various projects—both in the sharing of information and technology and in the use of each other’s personnel, databases, computer models and physical resources. Cooperation seemed to intrigue the Commissioners as not only a cost saving measure, but also as a way to prevent each project from reinventing the wheel as far as concerned technology, methodologies and information. This impetus appears particularly appropriate since the claims, as Table 1 indicates, originated from the six states within a small region where similar investigations in these states, despite their proximity to one another, often were not coordinated. In this sense, the F4 Panel played a role similar to that of research foundations whose grants often seek to encourage cooperation among institutions.23

B. A Sampling of the Claims Resolved and Reasoning Employed by the Panel The Panel resolved 107 claims from six countries. Of the claims, 9.5% were granted in full, 56% were reduced in amount, and 34% were rejected in full.24 The following discussion samples this array of claims, presenting two claims

20

Id. Report, para. 35. 22 Report, para. 34. 23 It is interesting that given the Panel’s tendency to encourage cooperation, that the Panel systematically rejected claims for conferences with national and international experts, and with the greater scientific community in general. This pattern likely reflects a separate concern with avoidance of expenses that are not a sufficiently direct result of the asserted loss. 24 Report, Tables 3, 5, 7, 9, 11, and 13. One claim, Claim 5000394, was transferred to a later installment to be reviewed by the Panel with substantive claims. In this claim, Iran sought funds to investigate possible links between petroleum-based pollutants and the incidence of cancers and hematological disorders in its population. The Panel felt that such a study was premature as it would be unlikely to find increased cancer rates only ten years after the release of the pollutants, as most cancers has a latency period of 15 to 20 years between exposure and clinical evidence. Report, para. 288-90. Saudi Arabian claim 5000360 was also transferred to a later installment in that it concerned remediation activities. Report, para. 558-60. 21

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from Kuwait and two from Iran.25 In each instance, for the purpose of showing the range of reasoning, one of the claims selected was one of those rejected in its entirety by Panel.26 1. Two Kuwaiti Claims Kuwait’s claims centered on the environmental destruction caused, and the harm done to the public health of its citizenry, by two acts: (1) the setting fire of its oil wells, and (2) the use of its land as a battlefield. Oil fires resulted in the release of over one billion barrels of crude oil into the environment, both in the form of smoke and oil mist from the fires which returned to the ground as soot and oil droplets, and in the form of oil lakes from wells that did not ignite as planned.27 Kuwait estimated that, despite the removal of 24 million barrels of oil, 49 square kilometers of its delicate desert ecosystem were still contaminated, a condition which could affect groundwater.28 The desert was additionally harmed by the construction of antitank ditches, berms, bunkers, trenches and pits, the emplacement of land mines, and the movement of military vehicles. This caused destruction of sand sheets and dunes, long-term deterioration of soil productivity, and increased sedimentation of the Persian Gulf.29 Iraq commented on these claims, arguing that Kuwait’s coastal areas had always been subject to high volumes of oil production and transport and that its environment had thus always been exposed to chronic oil pollution from tanker traffic and operational discharges.30 Iraq also asserted that oil breaks down quickly in warm, tropical waters like the Persian Gulf, resulting in roughly half of spilled oil disappearing within 24 hours.31 Iraq argued finally that the extent of the oil lakes was “ambiguous” and that, regardless, “such heavy end compounds are very useful in improving soil productive properties.”32 The Panel

25

Saudi Arabia had approximately the same number of claims as Kuwait. But inasmuch as the claims from Saudi Arabia were similar to those of Kuwait in type of harm alleged, this sampling draws only from the Kuwaiti submissions. Turkey and Syria had relatively few claims. All of Jordan’s claim related to damage caused to its environment from the influx of refugees and involuntary immigrants from Iraq and Kuwait as a result of the invasion and occupation of Kuwait. Report, para. 297. Jordan specifically alleged environmental damage in the form of increased groundwater extraction rates to provide drinking water and services to the refugees, which resulted in over-extraction, saline intrusion into aquifers and eventual degradation of water resources and its water supply infrastructure. Report, para. 298. Additionally, it claimed pollution of its water supply by wastes from the refugee camps and settlements; damage to its coastal environment around the transit city of Aqaba from the presence of refugees; and damage to its desert ecosystem from the deployment of its own troops to defend its borders and from increased nomadic traffic. Report, para. 300. 26 Each claimant state, with the exception of Jordan, had at least one of its claims rejected in full. All of Jordan’s claims were granted at least in part. 27 Report, para. 363. 28 Report, para. 364. 29 Id. 30 Report, para. 371. 31 Report, para. 373. 32 Id.

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rejected these arguments, restating its view that environmental damage is not a prerequisite for a monitoring activity to be compensable.33 Claim 5000397 is typical of the claims that the Panel chose to compensate, both in its reasoning and its final award. Kuwait requested USD $76,620,762 to gather information on the amount and type of oil pollution caused to its shoreline.34 As is typical of the Commissioners’ reasoning process, they began their analysis by stating that the study would address an area where environmental harm was a distinct possibility, and that therefore the monitoring and assessment activity was reasonable. They cited general scientific opinions and common facts to arrive at this conclusion, as opposed to requiring any substantive proof of such harm. The Panel recognizes that some biodegradation of released oil took place [this was in response to Iraq’s claim that the oil had all but disappeared]. However, the evidence in the scientific literature indicates that large quantities of oil were washed onto the shores of Kuwait; shoreline studies conducted several years after the spill indicate that substantial amounts remain. Therefore, it is appropriate for Kuwait to attempt to ascertain the extent of shoreline contamination attributable to Iraq’s invasion and occupation of Kuwait. . . . The Panel finds that the programme constitutes reasonable monitoring and assessment.35

Recognition of the reasonableness of the activity was distinct for the Panel from the question of whether the amount claimed was justified. In this claim, for example, the Panel employed its two most common reasons for cost reduction: reducing the scope of the activity and cutting the cost expectations for time and labor.36 Budget cuts for time and labor were made to different degrees in many claims; scope changes were not as common, though far from unusual. In this claim, the Panel reduced the scope by stating simply that all of the analyses proposed were not necessary.37 This was a little unusual; it was more common for the Panel to state that the scope was over-broad as the project could use information already garnered in another project or could consolidate its own research components. Additionally, in an Annex, the Panel, mapped out the exact scope that it wanted the project to have, from the various species that should be analyzed, to the type of studies that should be done on these species, from the need for control groups, to the benefits of a longer time frame.38 This type of detail was common in the annexes directed at individual claims, though far less 33

Report, para. 377. Report, para. 417. 35 Report, para. 419 and 421. 36 In reviewing the various claims, it appears that the Panel employed the following reasons in valuing a compensable claim: (1) some items are not necessary to or within the scope of the approved M&A (e.g., handbooks, seminars), (2) a reduction to reflect changes in costs since the time of the claim, (3) a reduction as a result of a more “focused” study or from cooperation with other projects, and (4) a reduction in scope of the proposed activity. 37 Report, para. 422. 38 Report, Annex XI. 34

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than half the claims had annexes attached. In the end, the Panel awarded this particular project USD $18,077,770. Claims were denied for lack of evidence offered or because the Panel doubted the project’s ability to provide important information. This was the case in Claim 5000399. Kuwait requested USD $543,792 to determine whether there was sunken oil in its marine environment, through the use of aerial surveys, acoustical technology and commercial divers.39 The Panel rejected the claim as it felt the study’s methodology had several defects, primarily in its proposed use of aerial surveys. It believed that these surveys would be useless in that, after 10 years, the oil would be buried under sediment making it impossible to see from the air. Additionally, visibility was hindered even further by poor water clarity.40 The Panel also cited as fatal the study’s failure to differentiate between oil sunk as a result of the invasion from oil that was released prior to or following the invasion.41 For these reasons, the Panel found that the study did not constitute reasonable monitoring and assessment42 and thus did not warrant compensation.43 2. Two Iranian Claims Iran claimed damage in three areas. First, it stated that Iraq’s detonation of Kuwait’s oil wells resulted in 760,000 tons of smoke being released into the environment, 280,000 tons of which were dispersed by air and deposited on Iranian soil.44 Over 15 million people inhaled this smoke over 250 days and the pollutants affected one-third of Iran’s freshwater resources, its largest agricultural lands, and its most important archeological sites.45 Second, Iran claimed that million of barrels of oil were deliberately released into the Persian Gulf, causing serious damage to the Gulf’s delicate ecosystem.46 Third, Iran alleged that this environmental damage would continue to harm its water, land and people long into the future, making monitoring and assessment activities essential. 47 As it did with the Kuwaiti claims, Iraq argued that the plume of smoke rarely reached Iranian territory and that Iran had no way to establish a baseline as studies were not done prior to the invasion.48 Again, the Panel rejected these arguments reiterating that proving the existence of specific harm was not a prerequisite to these claims.49 Claim 5000330 is an example of the Panel’s focus on coordination between projects to increase speed and efficacy and to prevent reinvention of the wheel. In this claim, Iran requested USD $1,984,660 to develop a computer-based model of the transport of air pollutants from the Kuwaiti oil fires to determine 39

Report, para. 434. Report, para. 436. 41 Report, para. 437. 42 Report, para. 439 43 Report, para. 440. 44 Report, para. 56. 45 Id. 46 Report, para. 57. 47 Report, para. 58. 48 Report, para. 59. 49 Report, para. 61. 40

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the short-term effects of wet and dry deposition of pollutants on various types of its vegetation.50 The Panel felt that this was reasonable monitoring and assessment activity, given the fact that little information was gathered as the fires were burning. Thus it was understandable for Iran to want to determine the terrestrial effects of these fires.51 The Panel, however, stressed coordination. First, it stated that the only way that the project would succeed within one to two years was to build on existing computer models rather than rely upon a newly constructed model.52 It went on to state that many excellent models already existed and were available for public use.53 Second, the Panel requested that the project should supplement its studies with data on “black rain” and “black snow”54 and should take into account data obtained from soil core samples in other monitoring and assessment projects in Iran.55 As the project could rely on existing models, the Panel reduced the compensation granted to USD $672,960. Claim 5000386 is a member of a minority group of claims which were denied compensation because the Panel felt that the activity was not reasonable in that the procedures proposed were unlikely to be effective. In this claim, Iran requested USD $826,000 to study the effects of genetically modified bacteria on residual oil pollution resulting from the invasion.56 The Panel rejected the claim citing unspecified evidence that a more effective way of combating such pollution was through the addition of nutrients and oxygen that would encourage naturally occurring bacteria to grow and combat the pollution.57 This process was also safer in the Commissioners’ eyes in that they “had serious reservations about the deliberate release of genetically modified organisms into the environment … not[ing] that widespread concerns have been expressed that the release of such organisms could pose risks to the environment and to human health.”58 The Panel added that such procedures were best done soon after the spill and therefore this activity would not be effective ten years later59 and was thus not reasonable.60

C. Survey of Claims Relating to the Coastal and Ocean Environment Table 17.2 sets forth an overview of the claims in the first installment that related to the marine environment. The table includes, among other information, 50

Report, para. 71. Report, para. 72. 52 Report, para. 73. 53 Id. 54 Report, para. 75. 55 Report, para. 76. 56 Report, para. 169. 57 Report, para. 170. 58 Report, para. 171. 59 Report, para. 170. 60 Report, para. 172. 51

Claimant

Iran

Iran

Iran

Iran

Iran

Iran

Iran

Claim # ¶s within Report

5000347 --113-118

5000349 --119-125

5000350 --126-131

5000351 --132-137

5000352 --138-144

5000344 --145-151

5000345 --152-155

143,600

686,100

488,630

454,500

822,500

363,537

822,400

Claim Amount

143,600

489,750

357,730

157,776

661,140

263,037

711,200

Award Amount

Wetland bird population study

Monitor Plant Community Characteristics

Restoration of Mangrove Forests

Assess sea grass

Assess coral reefs

Current status of indicator microfaunal species

Investigate natural revegetation capacities of mangroves

Type of Monitoring & Assessment Requested

No

No

No

No

No

No

No

Was the Work Already Conducted?

Annex X

Annex IX

Annex VIII

Annex VII

Annex VI

Annex V

Comments on the Panel Modification of the Requested Work

Table 17.2 Survey of Panel’s Recommendations on Monitoring and Assessment Claims Relating to Impact on the Marine and Coastal Environment

412,000

Iran

Iran

Iran

Iran

Iran

Iran

5000387 --174-177

5000382 --178-186

5000388 --187-191

5000389 --192-198

5000383 --199-204

5000384 --205-208

375,700

Iran

5000386 --169-173

842,500

178,400

3,686,520

1,035,000

826,000

594,000

Iran

5000348 --163-168

4,208,900

Iran

5000346 --156-162

0

375,700

842,500

0

953,220

0

0

377,900

2,908,274

Use of algae to degrade oil

Effect of black rain on wetland root zone soil

Assess coast recovery and methodologies for cleanup

Map tarballs on coast

A ocean transport model (with Kuwait and Ropme)

Study use of algae to remove oil borne heavy metals from env.

Genetically modified bacteria to deal with residual oil pollution

Link sediment pollution to presence in fisheries

Bioaccumulation in Fisheries

No

No

No

Yes

No

No

No

No

No

Annex XV

Annex XIV

Annex XIII

Annex XII

Annex XI

184,125

Kuwait

Kuwait

Kuwait

Kuwait

Kuwait

Kuwait

5000397 --417-425

5000398 --426-433

5000399 --434-440

5000400 --441-443

5000401 --444-447

5000402 --448-450

543,792

Kuwait

5000378 --411-416

1,985,633

543,792

157,249,044

76,620,762

57,554,587

612,600

Kuwait

5000377 --402-410

865,400

Iran

5000385 --209-212

0

0

0

0

8,237,792

18,077,770

37,546,888

0

0

Study of loss of recreational sports fishery

Study of loss of beach use

Study of technologies for sunken oil

Survey of Sunken oil

Study of technologies to treat coastline

Monitoring program to asses amount and type of oil damage to coast

5 Year monitoring program to assess impacts o oil on marine environment

Studies to monitor and assess the effects of oil on its marine resources

Investigate biological and genotoxic effects of pollutants on fish species

No

No

No

No

No

No

No

Yes

No

Annex XXII

Annex XXI

Annex XX

612,000

163,907,795

Saudi Arabia

Saudi Arabia

Saudi Arabia

Saudi Arabia

Saudi Arabia

Saudi Arabia

5000362 --569-573

5000363 --574-579

5000364 --580-583

5000365 --584-587

5000408 --588-591

5000409 --592-599

6,442,735

Saudi Arabia

5000361 --561-568

693,000

11,475,985

52,377,910

1,414,740

19,549,743

Saudi Arabia

5000360 --558-560

3,533,670

Saudi Arabia

5000359 --551-557

34,976,723

567,985

0

0

18,142,163

0

4,418,360

Deferred to later installment

1,861,174

Impact on Marine and Coastal environment: Survey of particular shore

Impact on Marine and Coastal environment: Assess risks to human health

Impact on fisheries: Survey of impact of sport fisheries

Impact on fisheries: Survey of impact of commercial fisheries

Impact on fisheries: 5 year oceanographic survey

Impact on fisheries: Implementation plan for claims 363,364,365

Impact on Marine and Coastal environment: Assess damage to reefs

Impact on Marine and Coastal environment: Assess after cleanup

Impact on Marine and Coastal environment: survey

No

No

No

No

No

No

No

No

No

Annex XXVIII

Annex XXVII

Annex XXVI

Annex XXVIII

5000412 --617-619

5000411 --606-616

5000410 --600-605

756,553

148,470,998

Saudi Arabia

Saudi Arabia

1,708,685

Saudi Arabia

0

12,793,477

0

Impact on Marine and Coastal environment: Survey beach use

Impact on Marine and Coastal environment: Evaluate technologies for remediation

Impact on Marine and Coastal environment: Survey of sunken oil

No

No

No

Annex XXIX

Finding Out What the Oceans Claim

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(1) the amount claimed, (2) the amount awarded and, (3) the type of monitoring and assessment work requested. From Table 17.2, it can be seen that only 37 of the 107 claims in the installment related to the marine environment. One of these 37 claims was deferred to a later F4 installment. Moreover, two of the 37 claims involved situations where the work had already been done and reimbursement of the costs of monitoring and assessment were sought. Both of those claims were denied, an outcome consistent with a tendency of the Panel in other claims in the installment where the work was already conducted to find that the claimant failed to submit adequate evidence of monitoring and assessment work claimed to have already been performed. Of the remaining 34 claims, fifteen were denied. Of the nineteen claims for which compensation was recommended, only three claims were granted in full. Two observations are particularly noteworthy. First, five of the nineteen successful claims involve a very significant proportion of the total amount awarded. The nineteen claims were awarded in total an amount of USD 144,864,159. But, five of these nineteen claims were awarded a total of USD 121,537,021.61 Thus, 84 percent of the amount awarded for the 37 claims related to the marine environment stems from five claims. (Indeed, fifty percent of the amount awarded in the entire installment of 107 claims (USD 243,234,967) arises from these five claims.) Four of these five claims involve the detailed work of ascertaining what happened to the marine environment. Claim 500378 involves a five year program to monitor and assess the impact oil had on Kuwaiti marine resources, while claim 500397 involved a program to monitor and assess the impact on Kuwait’s coastline. Claims 500363 and 500409 similarly involved monitoring and assessment programs for Saudi Arabia fisheries and coastline respectively. (The remaining claim, Claim 500411, involves broad ranging research and experimentation evaluating various technologies for remediation.) In short, a substantial portion of the total amount awarded for monitoring and assessment dealt with uncovering over a substantial amount of time the nature and extent of damage to the coastal and marine resources of the region. That this effort—even after substantial reductions by a Panel which closely scrutinized each claim—costs approximately USD 125 million evidences how difficult it is to ascertain what occurred to the marine environment as a result of the Gulf War. Second, it is noteworthy that all claims relating to the monitoring and assessment of sunken oil were denied. In claim 5000410, for example, Saudi Arabia proposed “a study to determine the quantity and location of sunken oil in its marine environment.”62 More specifically: Saudi Arabia proposes to develop a survey plan using bathymetric and oceanographic data, together with fate and trajectory modelling of the oil spill. The search for sunken oil would be undertaken, mainly in deep waters, using aerial and sonar surveys. If sunken oil is found, Saudi Arabia proposes to use divers to examine it visually and retrieve samples for analysis. The information ob61 62

Claim numbers 5000378, 5000397, 5000363, 5000409, and 5000411 Report, para. 600

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David D. Caron tained from the survey would eventually be used to formulate a remediation plan.63

The Panel denied the claim not because it was thought unlikely that there was sunken oil, but rather because it was unclear that anything would be learned through the proposed study. The Panel wrote: 602. The Panel finds several technical problems with the proposed methodology of the survey. Aerial surveys are not likely to detect sunken oil in deep water ten years after it was released, because the oil most probably would have been buried by sediment during that time. Even if sunken oil were found, diver identification and sampling of sunken oil becomes limited in the deep waters where Saudi Arabia proposes to look for them. 603. In the Panel’s opinion, the study as proposed is unlikely to identify sunken oil attributable to Iraq’s invasion and occupation of Kuwait in quantities that would pose a significant risk to the environment so long after Iraq’s invasion.64

Why is sunken oil handled so differently that oil that was deposited on coastlines or may or may not have affected marine resources? In my view, this decision reflects not so much a conclusion about the degree of risk but rather reflects the infancy of skills in interrogating the marine environment as to the harm it has suffered. New knowledge about the effects of sunken oil may change this assessment someday. New technologies both as to finding of sunken oil and possibly remediation of the harm such oil would likewise change the decision. The law and its application are limited by our understanding of the context in which we find ourselves and our capacity to address the realities with which we are confronted.

D. The Governing Council Decision and the Position of Claimant as Agent In the case of the UNCC, there are several indications that the government claimants file the environment claims not as principal, but rather as agent. An important backdrop to understanding agency in the case of environmental claims is the way in the UNCC earlier handled the claims of individuals. First, in the UNCC a government does not have the capacity to prevent the presentation of the claim of a person resident in its territory. Under Decision 1 of the Governing Council, “the Council may request an appropriate person, authority or body to submit claims on behalf of persons who are not in a position to have their claim submitted by a Government.”65 The UNCC’s focus was thus on the 63

Id. Report, paras. 602-603. The Panel handled Claim numbers 500399 (paras. 434439) and 500400 (paras 441-443) similarly. 65 Paragraph 19 of Decision No. 1, Criteria for Expedited Processing of Urgent Claims, U.N. Doc. S/AC.26/1991/1 (1991). 64

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individual and not the state within which the individual resided. States submitted claims on behalf of persons resident in their territories because they were logical agents of the UNCC to do so, not because the state owned the claim of person by a link of nationality. Indeed, numerous claims were filed with the Commission by UNDP or UNHCR, although it was not necessary to rely upon the authority quoted above as the basis for such representation.66 Second and as significant, the government agency role in acting as a channel is monitored by the UNCC. Decision 18 offers important insights in this regard. Traditionally, under diplomatic protection, it is the state that receives the award. The state in such cases does not have a duty to inform the tribunal of what it ultimately does with the funds received. The UNCC process is quite different. Decision 18 of the Governing Council requires that all governments receiving awards (1) prior to or immediately following receipt of payment, inform in writing the UNCC on the arrangements made for distribution of the funds to claimants; (2) within six months of receipt, distribute the specified funds to named claimants; (3) not later than three months after the deadline for distribution, inform the UNCC on the amounts distributed and the reasons for any non-payment; and (4) after distribution of all payments received, provide a final summary account of all distributions made.67 If a government fails to distribute the funds received, fails to submit adequate reports, or does not in the view of the Governing Council provide satisfactory reasons for non-payment, the Governing Council “may decide not to distribute further funds to that particular government.”68 Funds received which have not been distributed to claimants owing to inability to locate such claimants “shall be reimbursed to the Compensation Fund.”69 Governments in establishing their arrangements for distribution may deduct processing costs from payments made to claimants, but such fees (1) shall not be imposed until the government involved provides “explanations satisfactory to the Governing Council;” (2) shall be commensurate with the actual expenditure of governments; and (3) should not exceed 1.5% of amounts payable in categories A, B and C, or 3% of amounts payable in categories D, E and F.70 If the governments involved intend to convert the United States dollar payments into other currencies for distribution, they shall notify the Council on the method of conversion and exchange rate to be used.71 The provisions of Decision 18 reflect an astounding shift in this century. This is not imply that the practice of diplomatic protection is gone, but rather that in certain institutional contexts we have witnessed the development of a view of the state as agent rather than principal. The crucial point to note is that there has also been a similar development for environmental claims.

66

As in the case of the Iran-United States Claims Tribunal, the emphasis on the individual claimant before the UNCC is also evident in the wording of captions for procedural orders in the recent corporate claims. 67 Decision 18, Distribution of Payments and Transparency, U.N. Doc. S/AC.26/ Dec. 18 (1994), paragraphs I (2), I (3), I (4) and I (6). 68 Id., paragraph I (5). 69 Id., paragraph I (6). 70 Id., paragraph I (1). 71 Id., paragraph I (7).

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Precisely, what a shift to agency for state claimants would entail has been preliminarily explored by the author elsewhere.72 Particularly relevant here to note is how the Governing Council’s Decision approving the F4 Panel’s report on its first installment of claims has within it at least a partial image of agency: 5. Recalls that, bearing in mind the provisions of decision 18 (S/AC.26/ Dec.18 (1994)), claimant Governments shall expeditiously distribute amounts received for successful claims to the entity responsible for conducting the environmental monitoring and assessment activities, pursuant to the agreed upon procedures, and shall provide information on such distribution as soon as possible. 6. Decides that, to ensure that funds are spent on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities, the “F4” panel of Commissioners is requested to issue procedural orders directing claimant Governments to submit periodic progress reports concerning the environmental monitoring and assessment projects to the panel. The panel, through the Executive Secretary, will therefore keep the Governing Council informed of such progress reports for any appropriate action that may be required.73

Thus the UNCC did not simply award monies to the claimant Governments but rather—recalling Decision 18—directed the claimant Governments to “‘expeditiously distribute amounts received” to the entities responsible for conducting the approved monitoring and assessment activities, and to provide the UNCC with information concerning that distribution “as soon as possible.” Moreover, the UNCC authorized and instructed the F4 Panel to monitor the use of the funds by requiring the claimant Governments to submit “periodic progress reports.” The claimant Governments did not receive monies into their general treasury for damage to their environment to use as they saw fit, rather they had received funds for the primarily the purpose of ascertaining and monitoring the damage to the environment that resulted from the Gulf War.

IV. Conclusions In establishing “monitoring and assessment” set of claims, the UNCC gave a source of funding for efforts to ascertain and monitor still unknown damage to the environment for the region affected by the 1991 Gulf War. Moreover, the funding and the possibility of even only partial compensation for remediation of environmental damage uncovered appears to have positively influenced budget72 David D. Caron, The Place of the Environment in International Tribunals, in THE ENVIRONMENTAL CONSEQUENCES OF WAR: LEGAL, ECONOMIC AND SCIENTIFIC PERSPECTIVES 250, 257-259 (Jay E. Austin & Carl E. Bruch, eds., Cambridge University Press, 2000). 73 UNCC Governing Council Decision 132 (June 21, 2001) available at http://www. unog.ch/uncc/decision/dec_132.pdf.

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ary decisions internal to claimant Governments as to their own efforts to monitor, assess and abate harm.74 Simultaneously, the process of resolving the “monitoring and assessment” set of claims has, with the courageous and imaginative efforts of the UNCC Secretariat, greatly encouraged coordination in research and abatement efforts of the various Gulf States and to an enhanced long term role in the region for the U.N. Environment Program.75 Before the 2003 war in Iraq, one commentator wrote, “Twelve years on, are we in a better position to judge how badly the environment would suffer in a new war with Iraq?”76 In truth, it still cannot be said that even now it is fully known what the environmental consequences of the 1991 Gulf War were for the environment generally or the marine environment specifically. It is difficult to draw lessons without such assessment. Yet, we are certainly much closer because of the important steps taken by the UNCC. Compensation can be not only about money, but also the reconstruction of an area. Through both innovation and rigor, the UNCC facilitated the environmental reconstruction of entire region. Institutionally, the UNCC has opened a new era of claims resolution process in the areas of the environment and public health.

74 For a report of the complex state of affairs shortly after the conclusion of the war, see John H. Cushman, Jr., “Environmental Claims For Damage by Iraq Go Begging for Data,” N.Y. Times, B7 (Nov. 12, 1991). 75 For other discussions of the UNCC process, particularly as to the substantive law to be applied, for the environmental claims, see “Report of the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities,” U.N. Doc. No. UNEP/Env.Law/3/inf.1 (15 Oct. 1996); Sonja Boelaert-Suominen, Iraqi War Reparations and the Laws of War: a Discussion of the Current Work of the United Nations Compensation Commission with Specific Reference to Environmental Damage During Warfare, 50 ZEITSCHRIFT FÜR ÖFFENTLICHES RECHT 225-316 (1996); and Ruth Mackenzie and Ruth Khalastchi, Liability and Compensation for Environmental Damage in the Context of the Work of the United States Compensation Commission, 5 RECIEL 281- 89 (1996). 76 Future looks bleak for Iraq’s fragile environment, New Scientist 12 (March 15, 2003). The Iraqi Marshes were pointed to as a possible environmental cost of invading Iraq in 2003, although such fears do not appear to have been realized. As to the marshes, see Mesopotamian Marshes a Casualty of War, 15 GLOBAL ENVIRONMENTAL CHANGE REPORT 1 (May 2003). It similarly has been difficult to draw strong conclusions about the environmental and health impact of warfare employing shells tipped with depleted uranium. See Duncan Graham-Rowe, Depleted uranium casts a shadow over peace in Iraq, NEW SCIENTIST 4 (April 19, 2003).

Part 6. The New Practice of Maritime Boundaries

CHAPTER 18

The Practice and Value of Compromise in Ocean Boundary Law: The Experience of Sweden Hugo Tiberg

To lead the Swedish Delegation at the peace negotiations after the Thirty Years’ War, in Westphalia 1648, the Swedish Acting Regent Axel Oxenstierna sent his 26-year-old son Johan. On the son voicing doubts because of his inexperience, the father is said to have responded (in Latin): “Do you not know, my son, with how little wisdom the world is governed”? 1 The observation that international relations in this world are far from always managed with wisdom is only too apparent in these days, and we have seen it demonstrated not least in boundary negotiations, where national prestige and mutual mistrust seem often to have got the better of sagacity and solicitude of long-term considerations. Leaving examples aside, I shall look instead at the quiet nook of Sweden, where it seems to have been possible, in the mainly peaceful environment of the last two hundred years or so, to negotiate such issues in relative detachment and mutual awareness of the need for compromise. Sweden is a country hemmed in on all sides by land and waters of other nations. Thus the country’s boundaries are in many parts affected by those of the neighbouring countries and have in those parts been settled in agreement with 1

“An nescis, mi fili, quantilla prudentia mundus regatur?” 419

D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 419-25. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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those neighbours. The territorial sea boundaries of twelve miles from the baselines are, relative to its other maritime boundaries, largely unaffected by the claims of adjacent nations and have mostly been drawn unilaterally by Sweden. The drawing of those unilateral borders testifies to the great objectivity of the civil servants doing the job. A look at the maps in my separate study— “Mysteries of Water Boundaries: Baselines and Boundaries Around Sweden’s Coasts”2—will show how meticulously the drafters have applied the principles of the 1982 Law of the Sea Convention,3 cautiously eschewing any cornercutting. The negotiated boundaries include all shelf lines and EEZ lines, but also some territorial boundaries. It is my point that these lines were negotiated with much restraint and an absence of nationalistic fervour. A number of such boundary disputes are illustrated in the just mentioned “Mysteries” article, but I shall restrict myself here to three illustrations. Sweden affords particularly good illustrations of interesting boundaries from the topographic point of view. The very mottled character of the country’s coastline, with fringes of islands surrounding the mainland coast, have complicated the issues and caused many knotty problems for the negotiators.

I. International Corridors Following Sweden’s western territorial boundary from north towards the south, one cannot fail to note that the breadth of the territorial sea gradually narrows from twelve miles north of Danish Skagen to about seven miles off the city of Varberg, without any adjoining Danish water providing an apparent explanation for it. The Danish territorial water, in fact, was as much as twelve miles distant when this tapering was first introduced. Its explanation is as follows. The Baltic is separated from the North Sea by the two Danish ”Belts” and the Sound of Denmark. All three straits were long in Danish hands and the Kings levied a toll on passing shipping. In the peace of Roskilde in 1658, Scania (Skåne) became Swedish, and the Sound became the dividing line between Sweden and Denmark. However, the Danish Kings were permitted to retain their toll on foreign—but not Swedish—shipping passing here until the ”Abolition Treaty” in 1857, where the levy was finally redeemed by a substantial sum of money. Since then, the Treaty has governed passage rights in the Sound.

2

See Hugo Tiberg, Mysteries of Water Boundaries: Baselines and Boundaries Around Sweden’s Coasts, in CURRENT INTERNATIONAL LAW ISSUES—NORDIC PERSPECTIVES, ESSAYS IN HONOUR OF JERZY SZTUCKI, 195–217 (Ove Bring and Said Mahmoudi, eds., 1994) (cited hereinafter as “Mysteries”), which circles the coast of Sweden to explain such oddities. 3 In some places I have chosen to illustrate such principles by examples from the old 4-mile boundary. The principles in the illustrated cases are the same as under the 1982 Convention but have been chosen only because the shorter radius of 4 miles shows the effects on the boundary line much more clearly than the wide radius of the present 12mile border.

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The Sound is quite narrow and in its northern part just over two miles, so the Swedish four-mile limit and the Danish three-mile limit would have met at mid-water. But a demarcation line through the Sound—last adjusted in 1932— determined the two countries’ areas of interest, while passage remained essentially free under the Treaty. At the northern and southern entrances to the Sound the waters widen, so these were not ”international straits” in the sense activating the special regime in article 16(4) of the Geneva Convention of the Territorial Sea. But in 1979, with the increasing international recognition of 12-mile territorial seas, Sweden extended her territorial boundary to twelve miles from her baselines, although not beyond the median line to Denmark. If Denmark had done the same, large areas at the north and south approaches of the Sound would have become national Swedish and Danish water, which would have subjected these whole areas to the regime of ”transit passage” according to the consensus already reached in the UNCLOS negotiations then in progress. In anticipation of such extension, it was important to Sweden to avoid the application of such transit rights, which would have given passing traffic the rights, inter alia, of submarines’ underwater navigation right up to the coastal baselines,4 and instead to preserve the status of mere ”innocent” passage applicable to the territorial sea. This was achieved through an understanding with Denmark5 that both countries—Denmark from the time when she might introduce the twelve-mile territorial waters6—would abstain from utilising the full extent allowed by the new international order so as to leave an international corridor for the passage of foreign traffic, inside of which there would remain external water territory (territorial sea) with only innocent passage up to the coast. The regime of these corridors applies through most of the Kattegat, where the Danish boundary is determined by baselines to the outlying islands of Læsö, Anholt and small Hesselö (of which more below), and in the Baltic at the southern approaches of the Sound and on the north side of the Danish island of Bornholm. The passage through the Sound itself remains governed by the historical rights of the 1857 Abolition Treaty. Further north in the Baltic, in the sea of Åland, there is the strait of South Kvarken between Finnish Åland and various islands off the Swedish East Coast. Åland like the rest of Finland was ceded by Sweden to Russia through the peace of Fredrikshamn in 1809. A demarcation line through the Gulf of Bothnia negotiated the following year7 marked off the areas of interest of Sweden and Imperial Russia down to the breadth of southern Åland. Finland remained in Russian hands until the 1917 Soviet Revolution, in which Finland cast off the foreign yoke and became independent. In a census, the majority of the islanders voted for Swedish rule, but this was repugnant to 4 Briefly, transit passage allows the following rights above innocent passage: (1) passage is the basic and presumed rule, (2) submarines may navigate submerged, (3) overflight is permitted, (4) unhampered passage with coast state limited to protesting, (5) warships may conduct exercises, and (6) passage rights extending to the whole area. 5 Swedish declaration of June 25, 1978, 1979:43 SÖ. 6 This has since occurred in 1999. 7 Torneå Agreement 1810, see further BO JOHNSON, SUVERÄNITET I HAVET OC LUFTRUMMET 306 (Stockholm 1972).

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Russia, and on recommendation of the League of Nations Åland was instead given a semi-independent status with guaranteed non-militarisation (1921 Treaty on Non-Militarisation of the Åland Islands), in which the previously agreed demarcation line was on the whole confirmed. This agreed demarcation line runs through the divided island of Märket (the Mark),8 near mid-water between Sweden and the Åland mainland. On account of the configuration of the land, the area on the eastern side of the island has been designated as internal Finnish water, while on the western side the water is Swedish territorial sea extending about six miles from the island to the nearest Swedish rocks.9 The prevailing traffic passes on the deeper and safer Swedish side. 10 The presence of the divided island in the middle has prevented Sweden from achieving an international corridor through the area, and it might be thought that international shipping would enjoy full transit rights under the present Convention’s Articles 37–44. But Sweden maintains and declared on signing the 1982 Convention11 that this regime is excluded by historical rights created by the above-mentioned Non-militarisation Treaty.

II. Fishing “Pockets” The Åland aspect brings us to the second dispute to be considered here, namely, that between Finland and Sweden concerning the Åland Fishing Zones. The previously mentioned demarcation line between the two countries terminated between the islands of Söderarm and Lågskär in the southern part of the Åland Strait, ”losing itself into the Baltic” according to a topographic description from 1888. But on the two countries’ establishment of Continental Shelves, in 1972,12 a rather angular line was drawn between a few turning points into the main part of the Baltic. When somewhat later the idea of fishing zones was taken up by the two countries, the parties did not accept this simple line for fishing zone purposes but provisionally agreed on an equidistant line, which resulted in a sinu-

8

JOHNSON, supra note 7 at 307. On the complicated boundary-drawing in this area, see Mysteries, supra note 2 at 214–16. 10 The existence of territorial water on the Finnish side would not in itself prevent the choice of that side for passage, compare the situation at the Hormuz strait into the Persian Gulf, where the regular traffic passes wholly through Oman territorial water inside a number of Oman islands rather than in the territorial sea of Iran, see Said Mahmoudi in THE PASSAGE OF SHIPS THROUGH STRAITS 43–49 ( Athens 1999) and Said Mahmoudi, Passage of Warships through the Strait of Hormuz, 15 MARINE POLICY 338–48 (1991). 11 See BO JOHNSON AND JOHNSON THEUTENBERG, FOKRÄTT OCH SÄKERHETSPOLITIK, 105 (fn 1 (in English)) (Stockholm 1986). 12 Agreement Concerning the Delimitation of the Continental Shelf in the Gulf of Bothnia, the Bothninan Sea, the Åland Sea and the Northernmost Part of the Baltic Sea (with Protocol), 29 September 1972, in 71 LIMITS IN THE SEAS (1973). By and large, the line followed one already drawn in the 1921 Treaty on the Non-militarisation of the Åland Islands. Official declaration, see SÖ (Sweden’s Agreements) 1973:1. 9

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ous fishing curve winding around the straighter shelf delimitation.13 Thus there were formed on the Swedish side of the shelf line ”pockets” where Finns were allowed to fish but not to touch the shelf, while on the Finnish side there were similar Swedish ”fishing pockets” where Swedes might fish but not use any bottom resources. This situation, combined with the fact that the tiny and barren Bogskær rocks south of Åland14 had not previously been taken account of, caused prolonged discussions between the two brother countries. When in 1992 Sweden decided to merge her fishing rights into the wider rights inherent in an Economic Zone, a draft bill was prepared in apparent oblivion of the Bogskær situation. The draft declared all EEZ rights to be exercisable to a line declared by the Government, which at that time would be the then applicable shelf line. This would have amounted to pretence of full fishing rights in the Finnish fishing pockets and to renunciation of Swedish rights in the Swedish fishing pockets. The gaffe was accidentally discovered only four days before the bill coming into force and was rectified in the nick of time.15 The final solution, reached in 1994,16 resulted in a common line for the shelf and economic zones, being an adjustment of the previous shelf line in which Sweden was given compensation for some loss of fishing waters through the elimination of her (larger) fishing pockets, while Finland was given some revenue for the Bogskær rocks

III. The Importance of Public Opinion The third situation to be recounted was a complex one. It concerned primarily a dispute from the 1970s and 1980s with the Soviet-Russian Government concerning Shelves and Fishing Zones17 east of the island of Gotland in the middle of the Baltic Sea. Gotland is a Swedish island of 3,140 square kilometres and has an extension from north to south including the adjacent Fårö Island of about 125 kilometres. There was a belief at the time that there might be exploitable oil resources in the sea bed of this area, and the Soviet Union maintained that Gotand could not be considered for purposes of generating a shelf, and that any such shelf must be measured from the Swedish mainland, which would produce a So13

Note Exchange SÖ 1978:15–16, see also Hugo Tiberg, Sweden’s Baltic Boundaries, 34 GERMAN YEARBOOK OF INTERNATIONAL LAW 92, 104–05 (1991). 14 The Bogskær rocks are two deserted rocks of perhaps some fifty metres across, the southern one sporting a lighthouse. About a mile to the northeast there is a separate third islet with a beacon. 15 Hugo Tiberg, Baltic Borders in TURUN YLIOPISTON MERENKULKUALAN 34, 38 (1994). 16 The Agreement is noted in Erik Franckx, First Trijunction Point Agreed Upon in the Baltic Between Poland, Sweden and the USSR, 5 INTERNATIONAL JOURNAL OF ESTUARINE AND COASTAL LAW 394-97 (1990). 17 The discussions originally concerned the Continental Shelf only but were widened in the 1980s to include Fishing Zones also, see Said Mahmoudi, Delimitation of Maritime Zones between Sweden and the Soviet Union, 34 SCANDINAVIAN STUDIES IN LAW, 151–80 (1990).

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viet shelf area right up to Gotland’s eastern territorial waters. Sweden, on the other hand, claimed a dividing line equal to the median line between Gotland and the Soviet baseline, in accordance with the 1958 Continental Shelf Convention and the settled practice of nations,18 which at the time was generally held to be that expressed in the new 1982 Law of the Sea Convention. The test for drawing a baseline valid for Shelf purposes, according to these sources, was that such a line could not be drawn to a ”rock which cannot sustain human habitation or an economic life of its own”,19 which certainly was not the case with Gotland, with its many industries and population of some 56,000 persons. On the other hand there was not in the new Convention’s Shelf provisions any reference to the median line, the relevant Article 83 providing only that the delimitation should be effected by agreement on the basis of international law. The suggested test was “equity”, in which giant Soviet’s need for water areas would play an appreciable role. The Swedish position was, moreover, complicated by a simultaneous dispute with Denmark. Denmark had disagreed with the proposed establishment of a Swedish fishing zone both in the Kattegat and in the Baltic north of Bornholm. Pending discussions, fishing rights remained what they had been under various fishing agreements. Denmark, on the other hand, had drawn a disputed baseline to the islands of Læsö, Anholt and particularly to the islet of Hesselö, which is a gravel elevation of 0.7 sq. kilometres with two houses inhabited during the summer time only. Was this a “rock which cannot sustain human habitation or an economic life of its own” in UNCLOS’ sense? The discussions had stalemated when in July 1983 the Danish foreign office granted A.P. Möller A/S a concession to drill for oil inside the disputed area created by the Danish base line. In spite of a Swedish demand for postponement, drillings began in August, followed three days later by an official Swedish protest. The affair became widely publicised, and both the Danish and Swedish press perceived a discrepancy in the Swedish position vis-à-vis Denmark compared to that against the Soviet superpower.20 The distinction between a large and populated island and an isolated gravel reef without permanent dwellings was scarcely noted in the press. But a seemingly high hand against Denmark might create an unwelcome precedent for the simultaneous negotiations with the Soviet Union, and it was important for the Swedish negotiators to find a quick and tidy solution. Within a few days, the Swedish and Danish prime ministers had agreed to initiate discussions, and towards the end of the same month a Danish delegation was in Stockholm for negotiations.21 A final agreement was made that autumn and ratified a few months thereafter. It gave Denmark full credit for the islands 18

Neither the Soviet Union nor Sweden, at the time, had ratified the 1982 Law of the Sea Convention. 19 UNCLOS, Article 121. 20 For references, see Hugo Tiberg, New Sea Boundaries in a Swedish Perspective (In Memoriam William W. Bishop, Jr. Part 2), 10 MICHIGAN JOURNAL OF INTERNATIONAL LAW 686, 696–97 (1989). 21 For references, see id. at 694.

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concerned in the much-publicised affair in the Kattegat but gave Sweden some compensation in the Baltic, of which nothing had been heard in public. Thus, the Swedish negotiation position could be upheld against the Soviet Union without the handicap of a widely publicised big brother attitude against Denmark. In January 1988, the Soviet negotiations were finally brought to an end by a compromise which can probably be described as moderately successful for Sweden. Sweden received 75% of the disputed ”white” area and the Soviet Union the remaining 25%,22 and the parties mutually granted one another certain fishing rights in the relinquished areas. A few years later, the Soviet Union collapsed, and the coast east of Gotland devolved on the small resuscitated republic of Estonia. There arose an Estonian nationalism and a wish not to be dependent on any achievements brought about by the late occupation power. There was a movement to reopen the Gotland treaty for new negotiations. An Estonian author in Sweden, Andres Küng, wrote eloquently on the unfairness of the Eastern Power having received only one quarter of the disputed area. But before the movement had developed into State action, Küng was told by better-informed Swedish friends that a major consideration in the Soviet Union’s getting as much as the one quarter they did receive was the size of the Soviet Hinterland and the huge country’s need for water areas. After this nothing further was head about reopening of negotiations.

IV. General Appreciation While all these disputes—and particularly the last-mentioned one—have been accompanied by heated press campaigns about the fairness or unfairness of the one or other position, the diplomatic negotiations seem to have been conducted in an atmosphere of quiet foresight, where the necessity of reaching viable results has overshadowed the emotional and nationalistic arguments so apparent in the press. Whether this distance from a popular excitement is always characteristic of diplomatic deliberations is hard to say for an outsider, but it seems safe to say that it must be favourable for a country to have been able to conduct such important negotiations against the background of a long and unbroken experience of peace. Sweden’s necessary negotiations with her neighbours on account of the 1982 Convention are at this time fully achieved, and the country’s water boundaries have all been settled. This has been done in relative harmony and in a manner that the territorial boundaries allow reasonable national control and that the previous Shelf limits have been brought into conformity with those of the present Economic Zone. It might have been possible to gain more in some of the disputes, but there might also have been a risk of gaining less in others. It may be appropriate in such circumstances to consider that the best is often the enemy of the feasible and that the strifeless attainment of permanent solutions through compromise is a valuable end in itself. 22

See Prop. 1987/88:175, in particular the satisfaction expressed on page 7.

CHAPTER 19

Stormy Waters on the Way to the High Seas: The Case of the Territorial Sea Delimitation between Croatia and Slovenia Damir Arnaut

I. Introduction Territorial sea delimitation, while one of the most intensely debated issues prior to World War II, has largely been delegated to the sidelines of ocean and coastal law. Modern students of maritime delimitation mostly concern themselves with the delimitation of the exclusive economic zone (EEZ) and the continental shelf, and few, if any, significant diplomatic problems associated with territorial sea boundaries have been recorded in the last several decades. Indeed, over the last twenty-five years there has been no important judicial or arbitration case on the territorial sea delimitation,1 as this period has been dominated by instances of

Many sources used in this article are available in the Croatian and Slovenian languages only. Except where noted, translation was done by the author. 1 PROSPER WEIL, THE LAW OF MARITIME DELIMITATION—REFLECTIONS 135 (1989) [hereinafter MARITIME DELIMITATION]. Writing in 1989, Weil mentions a period of “the last fifteen years.” Id. Research of the 1989-2002 period has indicated that nothing has changed since that time. Note that the recent International Court of Justice (ICJ) decision in the dispute between Indonesia and Malaysia over the sovereignty of the Ligitan and Sipadan islands involved the discussion of the territorial sea boundary, but this issue was 427 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 427-65. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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negotiated territorial sea delimitation between the concerned parties. The reasons for these phenomena are not overly surprising. First, the delimitation of the territorial sea—absent special circumstances such as islands—is a relatively simple affair, at least when compared to the EEZ or continental shelf delimitation. The modest twelve mile width of the territorial sea,2 and the fact that the distorting effects of equidistance lines are “comparatively small within the limits of territorial waters,”3 both allow for a relatively smooth process. Second, the law to be applied to territorial sea delimitation is relatively more predictable in its application at least when compared to the EEZ or continental shelf. The EEZ and the continental shelf delimitation involves an element of equity not present nearly to the same degree in the equidistance and the special circumstances rules governing territorial sea delimitation.4,5,6 The break up of the Soviet Union and the former Yugoslavia, however, has seen a dramatic rise in the delimitation of territorial seas. The questions regarding such delimitation have emerged largely due to the fact that although land boundaries between the republics of these federal states were firmly established in most cases, delimitation was never carried out at sea. Croatia, in particular, has contested its territorial seas with all of its former republican neighbors— Bosnia, Slovenia, and Serbia-Montenegro.7 While the Croatian dispute with Bosnia was largely solved in 1999, and the boundary negotiations with SerbiaMontenegro have been restarted in recent months, Croatia’s maritime dispute with Slovenia in the Bay of Piran and further in the Bay of Trieste has been the most controversial bilateral issue between the two countries. Despite the inraised only for the purposes of determining sovereignty over the disputed islands. Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.) 2002 I.C.J. 102. 2 The Law of the Sea Convention declares twelve nautical miles as the maximum breadth of territorial sea. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 (entered into force Nov. 16, 1994) [hereinafter LOSC]. The LOSC is binding only upon those states that have ratified it—142 states as of the time of this writing, see Table recapitulating the status of the Convention and of the related Agreements [hereinafter the Table], as at 28 February 2003, available at http://www.un.org/ Depts/los/reference_files/status2003.pdf (last visited March 6, 2003), but the twelve-mile limit is now probably firmly established in international law. Indeed, only fifteen countries continue to claim territorial seas wider than twelve miles. See ROBIN CHURCHILL AND A. VAUGHAN LOWE, THE LAW OF THE SEA 471 (1999) [hereinafter LAW OF THE SEA]. 3 North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. Rep. para. 59 [hereinafter North Sea Cases]. Also, “owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight. . . . ” Id. para. 8. 4 MARITIME DELIMITATION, supra note 1, at 136. 5 LOSC, supra note 2, art. 15. 6 MARITIME DELIMITATION, supra note 1, at 136. 7 Both the land and the maritime boundary with Bosnia was contested around the only Bosnian outlet to the Adriatic Sea at Neum, the maritime boundary with Slovenia in the Bay of Piran and beyond has been one of the thorniest issues in the CroatianSlovenian relations, and the land and maritime boundary between Croatia and Montenegro at the Prevlaka peninsula required the posting of a United Nations observer mission (United Nations Mission on Prevlaka—UNMOP) there.

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creased activity aimed as resolving this problem in the past three years, which included an agreement between the two countries’ prime ministers,8 a solution is not in sight.9 Unless a negotiated solution satisfactory to both countries is reached soon, the issue will probably have to be submitted to an international judicial or arbitration body. This Chapter offers a detailed study of this unusual case of the territorial sea delimitation,10 and proposes solutions for solving this problem through bilateral negotiations in order to avoid a costly and protracted dispute before an independent body, an option that would not benefit the interests of either country.

II. The Bay of Piran and the Bay of Trieste: Deep Divisions in Shallow Waters Croatian and Slovenian secession from the former Yugoslavia in 1991 brought about a need to delimit the boundaries of these two newly-independent states. While the land boundaries between the former Yugoslav republics were largely agreed upon well before the break up of the country, no delimitation was ever carried out at sea.11 Boundary negotiations between the two countries began shortly after their independence, and were especially intensified following the end of the war in Croatia in 1995. Some land boundaries needed to be adjusted, mostly in order to take account of the needs of the population living in the border region, but this issue has not been nearly as perplexing or controversial as that of delimitation that needed to be carried out at sea de novo. Indeed, while practically every square inch of the land territory was officially included into one or another municipality, thereby indicating which republic exercised juris8 Pogodba Med RepublikR6ORYHQLMRLQ5HSXEOLNR+UYDãNRR6NXSQL'UåDYQL0HML (Agreement between the Republic of Slovenia and the Republic of Croatia on the State %RUGHU WUDQVODWLRQIURPWKH6ORYHQLDQE\$QGUHM0LOLYRMHYLü >KHUHLQDIWHU$JUHHPHQW@ The Agreement was initialed on July 20, 2001, but it must be ratified by the parliaments of both countries before it can enter into force. This agreement is not available in any library or electronic sources. A copy in the Slovenian language was obtained by author from the Ministry of Foreign Affairs of the Republic of Slovenia, and this copy is on file with author. 9 Indeed, it appears that Croatia has backed away from the initialed agreement, and its government indicated that “it will soon begin to ‘prepare new negotiating positions’ because it is ‘mindful of the fact that the majority opinion in the Parliament is against the $JUHHPHQW¶´0DUNR%DULãLüNovi pregovori o granici sa Slovenijom? [New Negotiations on the Boundary with Slovenia?], VJESNIK, June 14, 2002, at 3 (quoting DrDåHQ%XGLãD Croatia’s Deputy Prime Minster) [hereinafter New Negotiations]. 10 It appears that no academic study of the problem has been published in any English-language legal journal. While the issue of a territorial sea boundary between two small East European states may seem insignificant, the specifics of the dispute, the solutions offered by the two sides, and the novelty of several issues surrounding the dispute, all call for a detailed examination of this problem. 11 See, e.g., Kristian Turkalj, Ra]JUDQLþHQMHWHULWRULMDOQRJPRUDL]PHÿX+UYDWVNHL Slovenije u sjevernom Jadranu [Delimitation of the Territorial Sea between Croatia and Slovenia in the Northern Adriatic], 51 ZBORNIK PRAVNOG FAKULTETA U ZAGREBU 939-40 (2001) [hereinafter Delimitation].

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diction, no such official allocation of jurisdiction existed at sea. To be sure, there was little need for such delimitation during the life of the Yugoslav federation, as federal authorities exercised most of the control over the sea,12 but the Croatian and Slovenian independence placed the matter into the realm of international law, calling for such delimitation to take place. The area subject to delimitation13 between the two countries lies in the northern Adriatic, namely in the Bay of Trieste. Included in this area is the small Bay of Piran, one coast of which belongs to Croatia and the other to Slovenia. The land boundary between the two countries follows the course of the Dragonja River which empties into the Bay of Piran roughly at its middle. The waters of the Bay of Piran were considered the internal waters of the former Yugoslavia, with the baseline stretching over its entrance. The coasts of the Bay of Trieste belong to the three coastal states situated around it: Italy, Croatia, and Slovenia. The former Yugoslavia and Italy delimited the waters in the bay into two roughly equal parts, with the entire area constituting the territorial sea of one or the other country. As a result, no delimitation issues exist between Italy on the one hand and Croatia and Slovenia on the other. The area of concern to this article, hence, is bordered with the Croatian and Slovenian coasts on one side and with the inherited Italian-Yugoslav territorial sea boundary on the other.14 As for the other characteristics, there is no delimitation problem in terms of any of the other maritime zones, such as the EEZ given the relatively small size

12

For a very early argument in support of delimitation at sea between municipalities see LUCIJAN KOS, PODJELA NAŠEG OBALNOG 025$ 1$ 23û,1( [MUNICIPAL DIVISION OF OUR COASTAL SEA], (1970). Writing in the late 1960s, Kos raised a number of important arguments in support of such delimitation, ranging from maritime safety, exploitation of natural resources, access to ship wrecks, fishing, pollution prevention, and, most importantly, legislative and enforcement jurisdiction, id. at 16-23. Kos’ proposal was not limited to mere advocacy that municipal delimitation at sea be carried out. On the contrary, more than two-thirds of his study is devoted to making specific recommendations as to where municipal boundaries at sea should lie, and he used the equidistance method in all cases except for some specifically-mentioned islands. Id. at 27-8. Kos’ proposal for the area of concern to this article uses the line of equidistance in the Bay of Piran and the Bay of Trieste, as evidenced both by the proposed coordinates for the Slovenian Piran municipality, id. at 52-3, and the Croatian Umag municipality id. at 64, as well as from a map appendix, id. insert. It must be borne in mind that this study was a proposal only, and that neither its general nor specific recommendations were ever adopted. Moreover, having been written at the time when the Yugoslav federation was still particularly strong, it can be safely assumed that this proposal never contemplated any problems arising under international law. As such, the value of the study to this article is not found in any of its specific recommendations regarding the lines of municipal delimitation at sea. Rather, Kos’ study demonstrates that despite the existence of detailed and serious proposals on the topic, the Yugoslav federation never found it important enough to carry out such delimitation, underlining the fact that any territorial sea delimitation between what now are independent states must be carried out de novo either through negotiations or through third-body mechanisms. 13 See Map Exhibit A. Reproduced with the permission of the American Society of International Law (© American Society of International Law, 1991). 14 Id.

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Map Exhibit A: Territorial Sea Boundary, Italy-Yugoslavia (Gulf of Trieste Area)

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of the area in question. The Bay of Trieste is only twenty-four nautical miles wide at its widest point, namely at the entrance into the bay, so each of the countries is entitled to territorial sea only.15 Also, the Bay of Trieste and the Bay of Piran have relatively low depths, with the average depth in the Bay of Trieste of only twenty to thirty meters,16 while the depth in most of the Bay of Piran does not extend below fifteen meters.17 The entrance into the Bay of Piran is about three miles wide.18 Reduced to the basics, the dispute between Croatia and Slovenia includes two questions: 1) the place of the boundary in the Bay of Piran, and 2) the extent of the Slovenian territorial sea in the Bay of Trieste, including Slovenia’s access to the high seas.19 With regard to the first question, Slovenia’s underlining position is that the waters in the Bay of Piran constitute a single unit which should lie under Slovenia’s sovereignty, despite the fact that one coast of the Bay undeniably belongs to Croatia. Croatia’s position, in turn, has been that those waters should be delimited using the method of equidistance.20 As for the second question, Slovenia has taken the position that its territorial sea should be extended to the point where it is at least partly adjacent to the high seas in order to avoid its territorial sea being “cut off” from the high seas by the territorial seas of Italy and Croatia.21 Croatia’s position, again, has been that the territorial sea boundary between the two countries in the Bay of Trieste should follow the line of equidistance, the cut-off effect of Slovenia’s waters notwithstanding.

III. The Positions of Croatia and Slovenia on the Delimitation of their Territorial Seas A. Slovenia’s Position Slovenia’s positions regarding the territorial sea delimitation with Croatia were most clearly stated in a Memorandum adopted by the Slovenian Parliament in March 1993.22 The Memorandum articulates two basic Slovenian demands: 1) “maintaining the unity of the Bay of Piran under Slovenia’s sovereignty and 15 Croatia and Slovenia, as well as Italy, claim the territorial sea of twelve miles, see LAW OF THE SEA, supra note 2, app. 1, at 463-71. 16 Delimitation, supra note 11, at 953. 17 Id. 18 Id. Turkalj cites a figure of five kilometers which is roughly equal to three miles. 19 While it does not explicitly define the term “high seas,” the LOSC states that its provisions relating to the “high seas” apply to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State. . . .” LOSC, supra note 2, art. 86. Since no country claims an EEZ in the Adriatic, see Delimitation, supra note 11, at 967, any areas outside of the territorial seas of any particular country constitute the “high seas.” 20 The method of equidistance will be discussed in Section IV, infra. 21 If the method of equidistance is used, Slovenia’s territorial sea will be entirely surrounded by the territorial seas of Italy and Croatia. 22 Delimitation, supra note 11, at 953 (citing the Croatian translation of the Memorandum).

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jurisdiction,” and 2) “access to the high seas based on the established criteria of international law and respect for the specific situation of…Slovenia.”23 Regarding the first demand, the Memorandum declares that Slovenia considers the Bay of Piran as “the case sui generis which demands strict respect for the historic title and other special circumstances, and categorically rejects the use of the equidistance method.”24 In support of this position, the Memorandum declares that Slovenia exercised jurisdiction in the Bay of Piran during the life of the former Yugoslavia, that such state of affairs existed at the time of the two republics’ independence, and that Slovenia also exercised economic rights in the Bay, as well as “cared for its biological balance and ecological protection.”25 Finally, the Memorandum claims that the Bay of Piran “historically belonged to the Piran Municipality,”26 and that its resources were under the “exclusive use of the population” of this municipality, and that only the Slovenian side of the Bay was ever populated.27 As for the second Slovenian demand, access to the high seas, the Memorandum states that “considering the specificity of the situation, it is necessary to respect the principle of equity and…the special circumstances, articulated in Article 12 of the Territorial Sea Convention.”28 The Memorandum further states that Slovenia is to be considered a “geographically-disadvantaged state” which cannot declare its EEZ, 29 and that the issue is crucial for “obtaining sufficient amounts of natural resources for the survival of the Slovenian people.”30 Thereby, the Memorandum continues, Slovenia believes it necessary, “in accordance with the principle of equity and taking into account special circumstances,”31 to draw the maritime boundary with Croatia in a way that would allow the territorial sea of Slovenia to, “at least in a narrow region, touch upon the high seas in the Adriatic.”32 Slovenia advanced two proposals to achieve the second demand.33 The first declares all of the waters in the Bay of Piran Slovenia’s territorial sea, notwithstanding the fact that one coast of the Bay undeniably belongs to Croatia. The boundary would then turn towards the south-west from Cape Savudrija which is 23

Id. at 954 (reprinting a portion of the Croatian translation of the Memorandum). Id. 25 Id. 26 Id. The Piran Municipality is based in the Slovenian town of Piran, and it encompasses only the Slovenian territory. 27 Id. 28 Id. Two issues are peculiar regarding this statement. Primarily, it is unclear why Slovenia cites the Territorial Sea Convention, as opposed to the LOSC to which it is also a party. However, considering that art. 12 of the Territorial Sea Convention is identical to art. 15 of the LOSC, this issue is of little importance. The more peculiar is the fact that the Memorandum cites “the principle of equity” which is contained neither in the Territorial Sea Convention, nor in the LOSC provisions dealing with the territorial sea. Id. 29 Delimitation, supra note 11, at 954 (reprinting a portion of the Croatian translation of the Memorandum). 30 Id. 31 Id. Here, again, the Memorandum mentions the equitable principles which do not factor into the matters of territorial sea delimitation. 32 Id. at 954-55. 33 Id. at 956. 24

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Croatia’s northernmost point at the entrance into the Bay, until it reached the high seas. All waters between this line and the inherited Yugoslav-Italian territorial sea boundary would constitute Slovenia’s territorial sea.34 The second proposal is far less radical. It envisions a boundary line going through the Bay of Piran,35 continuing in the same north-west direction toward the inherited Yugoslav-Italian territorial sea boundary, and then turning towards the south-west until it reaches the high seas.36 The proposal leaves for Croatia a triangle-shaped territorial sea “enclave” which would border the Italian territorial sea on one side, and that of Slovenia on the other.37 This proposal would have the effect of creating a “corridor-like” portion of Slovenia’s territorial sea extending to the high seas.

B. Croatia’s Position Croatia outlined its position through its Declaration on the State of Inter-State Relations between Croatia and Slovenia.38 Croatia’s position, to be sure, is very simple when compared to that of Slovenia. It declares that due to the fact that both Croatia and Slovenia are parties to the LOSC, Croatian representatives, such as the Government and the State Committee for Borders, are obligated to advance positions in accordance with the Convention, that is, to insist that the maritime boundary line be determined following the rule of equidistance.39 The Declaration further states that until the boundary is established, the coastal states are “obligated to refrain from exercising any type of jurisdiction beyond the line of equidistance,”40 and that the government is authorized to seek an advisory

34

See Map Exhibit B. Reproduced with the permission of Zbornik Pravnog Fakulteta u Zagrebu (© Zbornik Pravnog Fakulteta u Zagrebu, 2001). 35 It is unclear from this proposal where exactly the boundary in the Bay of Piran would lie. It is evident that it would not go through the middle of the Bay, and it appears that it would leave some waters in the Bay to Croatia. See Map Exhibit B. 36 See Map Exhibit B. 37 Id. 38 'HNODUDFLMD R VWDQMX PHÿXGUåDYQLK RGQRVD 5HSXEOLNH +UYDWVNH L 5HSXEOLNH Slovenije [Declaration on the State of Inter-State Relations between the Republic of Croatia and the Republic of Slovenia], 32 NARODNE NOVINE 1089-90 (1999), reprinted in Delimitation, supra note 11, at 957 [hereinafter Declaration]. 39 Id. Croatian Parliament’s Declaration only mentions the border in the Bay of Piran, but not further in the Bay of Trieste. It seems implicit, however, that the position was that the entire boundary between Croatia and Slovenia should be determined using the rule of equidistance, since such a rule would allow the boundary to simply continue its course even after it leaves the Bay of Piran. See also Map Exhibit B for the illustration of the Croatian proposal. Moreover, a thorough examination of the Croatian press shows that Croatia’s representatives and the media almost exclusively refer to the entire area in question as “the Bay of Piran,” probably for reasons of simplicity. 40 Declaration, supra note 38, reprinted in Delimitation, supra note 11, at 957.

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Map Exhibit B: Territorial Sea Boundary, Croatia-Slovenia, Various Proposals

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opinion from international institutions if the dispute is not resolved within twelve months.41

C. The Prime Ministers’ Agreement: Initials Only After several years of negotiations that began on the basis of the Slovenian Memorandum and the Croatian Declaration, the Prime Ministers of the two countries reached an agreement on their maritime boundary in July 2001.42 The Agreement is in many ways a compromise between the positions contained in the Memorandum and the Declaration respectively, but is nonetheless much closer to Slovenia’s positions than those of Croatia. Specifically, the Agreement declares that the boundary in the Bay of Piran shall begin at the river Dragonja’s outlet into the Bay (Point A), and continue in a straight line to Point B, located at the entrance into the Bay, three-quarters of the distance between the northernmost points of Cape Savudrija43 and Cape Madona,44 measured from the northernmost point of Cape Savudrija. 45 From this point, the boundary line shall turn to the west and continue in a straight line to Point C, which lies on the territorial sea boundary established between Italy and the former Yugoslavia,46 “except in the area where the territorial sea of Slovenia is adjacent to the high seas” (between the points C1 and C2 on the Point B to Point C line).47 With respect to this last provision, the agreement stipulates that the two countries agree to create a high seas corridor between Slovenia’s territorial sea and the currently established high seas, noting that “the sea area demarcated by points C1, C2, T5, and T6 constitutes the high seas.”48 Finally, the Agreement creates a small triangle patch of Croatian territorial sea bordering the territorial sea of Italy, stating that “the sea area demarcated by points C, C2 and T5 constitutes the Croatian territorial sea.” Hence, the boundary line outside of the Bay of Piran is basically divided into three parts: the first part being the boundary between the Slovenian and Croatian territorial sea, the second part constituting the border between Slovenia’s territorial sea and the high seas, and the third again being the border between the territorial seas of the two states. Reduced to the basics, the practical effects of the Agreement are as follows: The method of equidistance is not at all employed. Slovenia receives as its territorial sea approximately eighty percent of the Bay of Piran49 and a substan41 Id. The Declaration specifically allows the Government to seek an advisory opinion “from the International Tribunal for the Law of the Sea in Hamburg, or from another appropriate institution.” Id. 42 See Agreement, supra note 8. 43 Point Savudrija is on the Croatian coast at the entrance into the Bay of Piran. 44 Point Madona is on the opposite side of the Bay, on the Slovenian coast. 45 See Agreement, supra note 8, art. 3(1) and Map Appendix I (included as Map Exhibit C). 46 Id. 47 See id. art. 3(1). 48 See id. art. 4(1) and Map Appendix I (included as Map Exhibit C). 49 RFE/RL, Slovenia and Croatia Reach Border Agreement, 5 BALKAN REPORT 54, Aug. 3, 2001, http://www.rferl.org/balkan-report/2001/08/54-030801.html

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Map Exhibit C: Territorial Sea Boundary, Croatia-Slovenia, The Prime Ministers’ Agreement

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tial portion of waters outside of the Bay to which it would not be entitled if equidistance was used.50 In total, Slovenia’s territorial sea under the Agreement is around 113 square kilometers larger than it would be if the method of equidistance were to be employed.51 Furthermore, the Agreement establishes a 3.6 kilometer by 12 kilometer52 “high-seas corridor,” (demarcated by the points C1, C2, T5 and T6), bordered by the Slovenian territorial waters in the north and the current high seas in the south-west.53 The eastern side of the corridor is bordered by the Croatian territorial sea, and Croatia also retains a “triangle” of territorial sea (demarcated by points C, C2 and T5), which is squeezed between the corridor in the east, the Italian territorial sea in the west, and the Slovenian territorial sea in the north.54 The Agreement finally stipulates that it must be ratified by the two countries’ parliaments before it can enter into force. Over two years after it was initialed, however, the Agreement does not appear to have a chance to receive a two-thirds majority of the Croatian Parliament, and the Croatian media has noted on more than one occasion that the Parliament “does not even want to seriously discuss the Agreement.”55 The Croatian deputies’ approach is not overly surprising. It is not only the appearance of the relative advantage gained by Slovenia that is troubling to them, but the media coverage of the issue and the resulting public outcry have made ratification a risky political move at best. There is a general perception in Croatia, among the public and in the Parliament, that the Government was primarily motivated by political and economic considerations, rather than by concern for preserving Croatia’s territorial sea. Such perception, to be sure, is not entirely without merit. Primarily, the Croatian Prime Minister, in commenting on the Agreement, has noted that Croatia’s aspirations to join the European Union and NATO cannot be fulfilled as long as unresolved territorial disputes with the neighboring states persist.56 Moreover, he also noted, one week prior to initialing the Agreement, that “Slo50

See Map Exhibit C. See http://www.lawofthesea.net/parafirani_sporazum_2001.htm. 52 See RFE/RL, supra note 49. 53 See Map Exhibit C. 54 See Agreement, supra note 8, art. 4(1) and Map Appendix I (included as Map Exhibit C). Maintaining the territorial sea boundary with Italy was important to Croatia for two reasons. Primarily, that boundary was established between Italy and the former Yugoslavia through the Treaty of Osimo, which Croatia succeeded to, and Croatia did not want to jeopardize its rights under that Treaty by ignoring one of its provisions, that is by removing its territorial sea boundary with Italy. Also, Croatia’s territorial sea boundary with Italy is at present its only boundary with a European Union country, and this fact carries symbolic, but also some tangible strategic and political connotations. 55 See, e.g., 0DUNR%DULãLü-HVXOLPRJXüLLGRGDWQLSUHJRYRULRJUDQLFDPDLQXklearki? [Are Additional Negotiations on Boundaries and the Nuclear Plant Possible?], VJESNIK, Feb. 17, 2002, at 5 [hereinafter Are Additional Negotiations Possible?]. Also, as noted previously, the Croatian government has now signaled that it will most likely abandon the Agreement and present Croatia’s new negotiating positions. The government has not yet formally adopted this approach, but the statement by the Deputy Prime Minister that it “soon will” indicates that Croatia has probably rejected the Agreement for all practical purposes. See New Negotiations, supra note 9, at 3. 56 Konferencija za štampu Premijera Ivice RaþDQD >3ULPH 0LQVWHU ,YLFD 5DþDQ¶V Press Conference], Sep. 17, 2001, available at http://www.vlada.hr/racan-press.10.html. 51

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venia is situated on the road from Croatia to Europe, literally and figuratively.”57 More problematic than these rational calculations, however, were speculations in the Croatian media and by the opposition that the Government “traded” the territorial sea for Slovenia’s promises to return the savings of Croatia’s citizens left in the Slovenian banks upon the break-up of Yugoslavia,58 to build roads leading to the Croatian borders,59 or to make some compromises on the land boundary.60 While categorically denied by the government, and probably wellexaggerated, these speculations nonetheless created a wave of anti-Agreement feelings in Croatia.61 The lowest point, however, came following the address of the Slovenian Foreign Minister to the Croatian Parliament’s Foreign Affairs Committee, at which he spoke about the division of the “Yugoslav sea,” causing the Croatian Foreign Minister to compare his views to those of Slobodan MilRVHYLü62 The combination of these developments likely caused the Croatian government to indicate that it would soon formally reject the Agreement by forming new negotiating positions, and some have suggested that the issue would remain dormant for at least five to six years absent a major breakthrough.63 This prediction may well prove to be correct. Immediately following Croatia’s Deputy Prime Minister’s statement that Croatia would present its new positions,64 Slovenia’s Foreign Ministry stated that “Slovenia’s stance is clear and it will not be changed. The agreement on boundary with Croatia was ini-

 )UHQNL /DXãLü 5LEDUVND åUWYD [Fisherman Victim], SLOBODNA DALMACIJA, July 27, 2001, available at http://www.slobodnadalmacija.hr/20010727/kolumne.htm. 58 See, e.g., 0DUNR%DULãLüInflacija sporazuma koji uglavnom proizvode nove nesporazume [Inflation of Agreements which Usually Create New Disagreements], VJESNIK, Jan. 6, 2002, at 4 [hereinafter Inflation of Agreements]. See also Vinka Drezga, Spekulacije o “trgovanju” sa Slovenijom nisu utemeljene [Speculations on “Trade” with Slovenia are Baseless], VJESNIK, July 1, 2001, at 6. 59 Inflation of Agreements, supra, at 4. This would increase the tourist flow into Croatia. 60 Fueling the tensions was an article in the Slovene press that declared that the Croatian Prime Minster promised to give Slovenia three villages in return for “300 meters of sea” along the Croatian coast of the Bay of Piran. Particularly problematic for the Croatian public is the fact that while it cannot be ascertained whether these three villages belong to Croatia or Slovenia, Croatia appears to have a claim to them just as valid as that of Slovenia (the villages were officially included into a Slovenian municipality, but the judicial and law-making jurisdiction was exercised by Croatia). This caused the sentiment that Croatia was giving Slovenia its territories to receive parts of the sea that already belong to it. See0DUNR%DULãLü+UYDWVNDQHPRåHWUJRYDWLWHULWRULMDPDVD6ORYHQijom po QDþHOX³VYRMH]DVYRMH´ [Croatia Cannot Trade Territories with Slovenia on the Principle “Ours for Ours”], VJESNIK June 16, 2001, at 3. 61 Especially damaging were the constant accusations by the opposition that the Government “gave ours to receive what had already been ours.” See, e.g.,OLMDâDULüDQG *RUGDQD'XMLüPresedan pod maskom demokracije [Precedent under a Mask of Democracy], DOM I SVIJET, Sep. 24, 2001, available at http://www.hic.hr/dom/353/dom02.htm. For accusations that Slovenia pressured Croatia into accepting the Agreement by threatening to involve EU diplomats, see Inflation of Agreements, supra note 58 at 4. 62 Inflation of Agreements, supra note 58, at 4. 63 Are Additional Negotiations Possible?, supra note 55, at 5. 64 See New Negotiations, supra note 9, at 3. 57

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tialed and we continue to stand behind that approach.”65 If such conflicting positions remain, Croatia and Slovenia will likely revert to the deadlocked stage they were at prior to the Agreement. Thus, they should seek another mutuallyacceptable solution, as failure to do so will probably result in the necessity to have the dispute resolved by a third body, the course that both countries prefer to avoid.

IV. International Legal Analysis of the Problem A. Reverting to the Memorandum and the Declaration? Despite its shortcomings and wide rejection in Croatia, the Agreement can certainly be considered as the first step on the way to solving the maritime boundary between Croatia and Slovenia. It is, of course, entirely possible that, should the dispute be taken to an international judicial or arbitral body, the two countries will back away from the positions set out in the Agreement, and adopt their previous positions, as set out in the Slovenian Memorandum and the Croatian Declaration. It is not, however, entirely necessary to analyze those positions in detail for several reasons. Most importantly, Slovenia’s pre-Agreement position that all of the waters in the Piran Bay should be declared its territorial sea, and that its territorial sea should stretch all the way to the currently-established high seas is probably unsustainable under international law. In the Bay of Piran, it is very unlikely that any judicial or arbitral body would deliver an award extending Slovenia’s jurisdiction all the way to the Croatian beaches on the opposite coast absent strong proof of historic title.66 Moreover, outside of the Bay, both of the Slovenian Memorandum proposals appear unsustainable under international law for the simple reason that the currently-established high seas are more than fourteen nautical miles away from the closest point on the Slovenian coast.67 Hence, Slovenia’s proposals to extend its territorial sea all the way to the point where it would be adjacent to the current high seas exceeds the LOSC’s unequivocal limit on the breadth of the territorial seas to twelve nautical miles from the baselines.68 Slovenia’s government and negotiators most likely understand these international law limitations, which perhaps was one of the reasons why they departed from the Memorandum in the Agreement with Croatia. 65 Id. (quoting Nataša Prah, the spokesperson for the Ministry of Foreign Affairs of Slovenia). 66 For the analysis of historic title and special circumstances, see the discussion of the Agreement’s award to Slovenia of at least some of the waters in the Bay lying beyond the line of equidistance infra. 67 Delimitation, supra note 11, at 959. Slovenia does not have, and in all likelihood cannot claim, any baselines that would extend the line from which the breadth of the territorial sea is measured. 68 LOSC, supra note 2, art. 3. Again, the normal baselines, that is, the low water line along the coast will probably have to be used, as Slovenia could not claim any other baselines. See LOSC, supra note 2, art. 5.

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The second reason why Slovenia is unlikely to revert to the positions contained in the Memorandum is that its government and the public appeared to be satisfied with the Agreement,69 so there is little reason to insist on the more expansive Memorandum demands, especially in light of its weaknesses under international law. Whether Croatia will revert to the position expressed in its Parliament’s Declaration, however, is an entirely different question. Almost no one in CroaWLD DSDUW IURP WKH 3ULPH 0LQLVWHU 5DþDQ¶V *RYHUQPHQW LPPHGLDWHO\ IROORZLQJ the initialing offered any praise for the Agreement, causing an atmosphere that almost dictates that any argument before a third body be concentrated on use of an equidistance line.70 Moreover, it is questionable whether any independent body decision could possibly be less favorable to Croatia than the Agreement, a circumstance which may motivate Croatian representatives to revert to their argument for an equidistance line.71 Before examining the merits of such an approach, I first analyze the Agreement’s position under international law.

B. The Agreement and International Law 1. Legality of the Negotiated Agreement Claims to maritime delimitation have an international character, and their validity is to be appraised in terms of international law.72 Notwithstanding this undisputed principle, it is also true that governments can, if they so desire, depart from legal considerations and adopt any boundary line that is agreeable to them. Indeed, the ICJ has declared that “it is well understood that, in practice, rules of international law can, by agreement, be derogated from…”73 Hence, states enjoy contractual freedom in making boundary agreements between them. And in making such agreements, they may employ any delimitation method they wish, 69 For the discussion of how favorably the Slovene fishermen look upon the Agreement, see Fisherman Victim, supra note 57. Also, for the Slovenian Government’s praise of the Agreement, see Slovene Press Agency, Press Release: Slovene and Croatian Governments Pass Draft Agreements on State Border and N-Plant, July 20, 2001, http:// www.uvi.si/eng/new/press/data/press/2001-07-20_2001-07-20-094308.html. 70 Indeed, as noted supra, only condemnation of the Agreement has emanated from the Parliament, the press, public, and noted academics. For a veiled opposition to any line other than equidistance, see the interview with Croatia’s foremost international law expert, Vladimir Ibler, in Mihailo NiüRWD3RSXVWLOL+UYDWVNDQDPRUXL]JXELWüHLGLRLstarskog kopna [Should Croatia Acquiesce on the Sea, it will Loose a Portion of the Istrian Land], VJESNIK, June 6, 1999, at 5, available at http://www.vjesnik.com/html/ 1999/06/06/Clanak.asp?r=unu&c=4. Professor Ibler argues that should Croatia “give in” to Slovenian demands, it would risk loosing its land territory bordering the Bay of Piran. While this argument has little merit, it has created fears among the public, and thereby the politicians. 71 By “beneficial” and the “best solution,” it is only the boundary issue that is considered. That is, no other considerations such as economic, EU relations, etc. are given weight given the fact that they would probably not matter extensively unless a negotiated solution is reached. 72 See the Fisheries Case (U.K. v. Nor.) 1951 I.C.J. 116, 218. 73 North Sea Cases, supra note 3, para. 72.

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a combination of methods, or no method at all, simply drawing a boundary that is satisfactory to both of them. Indeed, a number of negotiated boundary agreements are silent as to the methods employed, emphasizing only the joint desire of the parties to reach an agreeable solution. Moreover, when international judicial bodies are asked to provide advisory opinions, or even when courts issue rulings, states are at liberty to depart mutually from such advice or decisions in their subsequent negotiations. For example, the agreements concluded between Germany and its neighbors following the ICJ’s North Sea judgment rested on economic and convenience considerations not connected to the Court’s legal guidelines.74 The Court has acknowledged such practice declaring that “they may . . . still reach mutual agreement upon a delimitation that does not correspond to the decision,”75 and that “their accord will constitute an instrument superseding their Special Agreement.”76 In this sense, the Croatian-Slovenian Agreement is valid under international law. This fact, however, does necessarily mean that a subsequent judicial or arbitral body would regard this, or any other, agreement as dispositive of the issue presented to it. On the contrary, such bodies must maintain the “objective legal reasoning,”77 and must apply “justice according to the rule of law,”78 rather than “justice” as it may be viewed by negotiating states. Indeed, states may take into their negotiations a number of factors unrelated to the legal settlement of the dispute, such as political, economic, or any other,79 but “although there may be no legal limit to the considerations which States may take account of, this can hardly be true for a court...”80 Hence, the legality of the negotiated Agreement notwithstanding, it is necessary to analyze the legal implications of its provisions if the dispute were to be presented to a judicial or an arbitral body. 2. Legality of the Agreement’s Provisions when Determined by a Third Body It must be noted from the outset that several of the Agreement’s provisions are unprecedented, both as a matter of state practice and international law. First, the delimitation in the Bay of Piran is controversial, not so much as a matter of international law, despite the fact that one state (Slovenia) receives eighty-percent of its waters. The real controversy exists with respect to the provisions of the Agreement (1) establishing a high seas corridor, (2) a triangle of territorial sea 74

See MARITIME DELIMITATION, supra note 1, at 112-13. MARITIME DELIMITATION, supra note 1, at 113 (quoting the Application for Revision and Interpretation of the Judgment of 24 February 1982, 1985 I.C.J. 219). 76 Id. The parties were committed through a Special Agreement to effect the delimitation in accordance with the rules handed down by the Court, but later departed from those rules. MARITIME DELIMITATION, supra note 1, at 113. 77 Award of the Arbitral Tribunal in the Third Party Settlement of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 251, para. 102 (1986) [hereinafter Guinea/Guinea-Bissau Award]. 78 Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, 45 [hereinafter Libya-Malta]. 79 This, indeed, may have been the case for the purposes of the Croatian-Slovenian Agreement, at least if the some of the Croatian media accounts are correct, but also given the statements by the Croatian government. See supra notes 54-63 and the accompanying text. 80 Libya-Malta, supra note 78, at 48. 75

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for Croatia that is not bordered at any point by its coast or any other part of its territorial sea, and (3) granting Slovenia a substantial portion of waters for its territorial sea to which it would not be entitled if the method of equidistance were used. These three aspects of the Agreement will be considered in turn. As for the Bay of Piran, it must be reiterated that, in territorial sea delimitation, the line of equidistance is not used when historic title or other special circumstances dictate otherwise.81 With regards to the existence of special circumstances, Slovenia’s claim that such circumstances exist, is not, to be sure, entirely without merit. Primarily, it is undisputed that it is only the Slovenian side of the Bay that has ever been significantly populated, so the waters have been more extensively used by the Slovenian population.82 Moreover, it appears that in the last years of the existence of the former Yugoslavia, Slovenia’s police exercised control over the entire Bay.83 This is not without significance because the Badinter Commission, an arbitration commission for issues emanating from the dissolution of Yugoslavia, including boundary issues, decided that the principle of uti possidetis “applies to the republican borders of Yugoslavia in the context of its current dissolution.”84 Hence, Croatia’s claims that it exercised jurisdiction and control within the Bay up to the line of equidistance for much of the life of the Yugoslav federation may not be as important as the fact that Slovenia’s control over the entire Bay may have been present in the years leading up to the independence of the two republics. 85 Whether special circumstances warranting a departure from the equidistance method indeed existed is, hence, a factual question, and cannot be answered with certainty here. It is sufficient to state that there is at least a possibility that such circumstances existed, and that Slovenia may be entitled to some portion of the Bay beyond the line of equidistance, although it is questionable whether any such special circumstances demand that as much as eighty percent of the Bay is awarded to Slovenia. With respect to historic title of the Bay, Slovenia’s claim stands on weaker grounds. The U.N. General Assembly prepared a Memorandum on historic bays,86 which states that in order for a bay to have a “historic” status, a state 81

LOSC, supra note 2, art. 15. See Fisherman Victim, supra note 57. 83 0DULMD3XOLüTreba li Sabor poduprijeti ugovor o UD]JUDQLþHQMXVD6ORYHQLMRP" [Should the Parliament Support the Delimitation Agreement with Slovenia?], ARENA, Aug. 2, 2001, available at http://www.franic.info/arena_20010802.htm. 84 Badinter Commission Opinion 3, reprinted in 3 E.J.I.L. 182-185 (1992). 85 However, a documentary video was filmed in 1988, showing a Slovenian police officer explain to a Yugoslav Army officer (also of Slovenian nationality) that an Italian fishing boat must be towed to Umag (on the Croatian coast), and not to Piran (on the Slovenian side) because it was caught fishing “in the Croatian territorial waters” within the Bay, see Delimitation, supra note 11, at 965-66 (quoting the conversation from Videozapis televizije Novi SadQDPLMHQMHQþHšNRMQDFLRQDOQRMPDQMLQLRXKLüHQMXWDOLMDnskog ribarskog broda Pantera Prima [Video of the Novi Sad Television Geared toward the Czech National Minority Regarding the Arrest of the Italian Fishing Boat Pantera Prima], July 8, 1988. 86 The General Assembly Memorandum Concerning Historic Bays, A/CONF.13/1 (1957). 82

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must effectively and continuously maintain its sovereignty for a significant period of time, that the state officially made a “historic bay” claim, that it is evident from the practice of other states that they have accepted this designation, and that the entire coast surrounding the bay belongs to only one country.87 Considering that all of the requirements must be met for a bay to be declared historic,88 the mere fact that the coasts of the Bay of Piran belong to two states indicates that Slovenia’s position is probably unattainable. The weakness of the historic title ground may be of little importance, however, in light of the fact that special circumstances may exist that would allow Slovenia to claim a larger portion, if not the entire Bay, and that Croatia is probably willing to accept a line other than that of equidistance within the Bay of Piran itself. Larger questions, however, loom when the issue of the corridor to the high seas is analyzed. As was already noted, states are free to demarcate their territorial seas as they wish, so the declaration of one part of the sea as the high seas is not invalid under international law, whether that decision is based on considerations of giving another state access to the high seas, or simply limiting the breadth of territorial sea. It is an entirely different question, however, whether a judicial or arbitral body would make such a determination. To be sure, the practice of states indicates that corridors to the high seas are not a novel concept, especially when their purpose is to grant a coastal state access to the high seas from its territorial sea which it would not have if a line of equidistance were employed. For example, France and Monaco concluded an agreement in 198489 delimiting their territorial seas in a way that provides Monaco with a corridor to the high seas. The agreement came about because, after the territorial seas of the two countries were enlarged from three to twelve nautical miles, an equidistance line would have resulted in cutting off the Monegasque territorial waters from the high seas, as well as in converging boundary lines that intersect less than twelve miles from Monaco. To avoid this scenario, the two countries agreed to attribute to Monaco a full twelve mile territorial sea corridor, not following any particular method of delimitation, and a continental shelf corridor to which it would not have been entitled either under the equidistance method.90 This agreement was not unprecedented. The Gambia and Senegal agreed in 197591 to use the parallels of latitude instead of equidistance in order to avoid

87

Id. Id. 89 Maritime Delimitation Agreement between the Government of His Most Serene Highness the Prince of Monaco and the Government of the French Republic, Feb. 16, 1984, reprinted in 9 L.O.S. BULL. 58 (1987) [hereinafter France-Monaco Agreement]. 90 See id. See also Map Exhibit D. Reproduced with the permission of the American Society of International Law (© American Society of International Law, 1991). The method of delimitation, in fact, did not even use Monaco’s coastline as the base because, if it had, the corridor would have gone toward the Italian territorial sea, and no access to the high seas would have been possible. Id. Equidistance was only used in closing Monaco’s continental shelf corridor, as the line that closes it is equidistant from the coasts of Monaco and the French island of Corsica. See id. 91 Agreement between The Gambia and the Republic of Senegal, June 4, 1975, reprinted in 85 LIMITS IN THE SEAS (1979) [hereinafter Gambia-Senegal Agreement]. 88

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Map Exhibit D: Territorial Sea and Maritime Boundaries, FranceMonaco

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the cut-off of the Gambian maritime area, including its territorial sea, from the high seas.92 The circumstances of this agreement are very similar to those in the France-Monaco one. Like Monaco, The Gambia is bordered by sea on one side, and by another country (Senegal) on the other three sides. The projections of the Senegalese coast would, as a result, cut off The Gambia’s maritime area from the high seas if the line of equidistance were used (but The Gambia, unlike Monaco, would have retained full twelve miles of territorial sea). The agreement avoids this scenario by giving The Gambia a corridor to the high seas.93 The existence of these precedents notwithstanding, three important factors about them must be noted. First, these precedents were not required by international law. Indeed, it has been noted that Monaco’s cut-off, as disadvantageous as it was, was not explicitly prohibited by international law.94 The second, and perhaps the more important factor, is that none of the sides to either of the agreements asserted rights under international law, and all were instead motivated by desires to strengthen and improve relations with their neighbors. So, for example, the France-Monaco Agreement expressly mentions the “privileged relations of friendship” existing between the two countries,95 and the French rapporteur stated before the French Senate that “because of the tight and exceptional nature of the French-Monegasque relations, France has accepted provisions that the rules of international law did not oblige it to accept.”96 As for The Gambia and Senegal, they also avoided international law claims, and were instead motivated by an effort to maintain favorable conditions for development and cooperation between them.97 Finally, the third factor is as important, if not more so, as the second. Both Monaco and Gambia were bordered on three sides by another state, France and Senegal respectively. This allowed for the agreements to grant them corridors to the high seas without at the same time affecting the cut-off of the territorial seas of the other states. While both France and Senegal lost portions of their maritime areas to which they would have been entitled under the method of equidistance, they nonetheless retained an uninterrupted access to all of their remaining territorial seas directly from their coasts.98 Given the nature of the boundary between Croatia and Slovenia, however, Slovenia cannot achieve a corridor to the high seas without either cutting-off a portion of the Croatian territorial seas from the territorial seas directly adjacent to its coast, or eliminating Croatia’s territorial sea boundary with Italy, something that Croatia is probably not willing

92

See id. See also Map Exhibit E. Reproduced with the permission of the American Society of International Law (© American Society of International Law, 1991). 93 The Agreement did not distinguish between different zones of jurisdiction, and may, hence, be considered to have created an all-purpose boundary. No outer limit of the boundaries is specified. Id. 94 JONATHAN CHARNEY AND LEWIS ALEXANDER, INTERNATIONAL MARITIME BOUNDARIES 1584 (Vol. 2, 1993) [hereinafter INTERNATIONAL MARITIME BOUNDARIES]. 95 France-Monaco Agreement, supra note 89, Preamble. 96 INTERNATIONAL MARITIME BOUNDARIES, supra note 94, at 1582 (quoting the Records of the meeting of the French Senate of June 26, 1985). 97 Gambia-Senegal Agreement, supra note 91, preamble. 98 See Map Exhibits D & E.

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to lose. These two precedents, hence, should not be viewed in light of international law, but rather in political and diplomatic terms. The question that remains, then, is whether an international judicial or arbitral body would reach the same or similar conclusion as that contained in the Agreement between Croatia and Slovenia. The answer is difficult to predict, but some light can be shed by examining the relevant principles. Slovenia insists that the line of equidistance should not be used because special circumstances exist that warrant a departure from that line. Slovenia’s argument, in short, is that the existence of special circumstances dictates not only the establishment of a corridor to the high seas, but also enlargement of its territorial sea beyond what the country would be entitled to if the equidistance method were employed. The rule of special circumstances as it relates to territorial sea delimitation is probably among the least developed in the body of international law of the sea. Not only does the LOSC fail to provide any guidance as to what those special circumstances may be,99 but the relatively little litigated or arbitrated world of territorial sea delimitation has not produced any substantial body of case law. This article does not attempt to offer a contribution to the debate as to what kinds of circumstances warrant a designation as “special” circumstances. Instead, only those circumstances that pertain to the dispute at hand will be considered and analyzed, and a conclusion will be reached as to whether they, in this particular context, do indeed constitute “special circumstances.” As to Slovenia’s desire to have an access to the high seas, the arguments contained in the Memorandum indicate that the special circumstances that warrant such a solution are freedom to fish, freedom to navigation, and Slovenia’s position as a geographically-disadvantaged state.100 With respect to the first two issues, the Memorandum declares that the access to the high seas would enable . . . Slovenia to continue an uninterrupted exercise of its internationally-recognized right to fish in the high seas in the Adriatic, and would prevent . . . fishing incidents. This is the only way to enable . . . Slovenia to retain the basis to exercise its right to communicate with the world, the right which it always had, and which is one of the basic rights of every sovereign state.101

The right to fish on the high seas, however, is a right that is well-enshrined in international law, both its customary component, but also as codified through the LOSC.102 The exercise of this right is not dependent on any corridor to the high seas, and all states, coastal or even landlocked,103 enjoy the right to fish on the high seas. Separation of Slovenia’s territorial sea from the high seas would 99

The LOSC only declares that equidistance shall not be used when special circumstances exist. See LOSC, supra note 2, art. 15. 100 Delimitation, supra note 11, at 954 (citing the Croatian translation of the Memorandum). While it cannot be predicted what the official Slovenian position would be in any arbitration or litigation, it must be reiterated that the Memorandum, having been adopted by the Slovenian Parliament, is the most official articulation of the Slovenian position to date. 101 Id. at 955 (citing the Croatian translation of the Memorandum). 102 LOSC, supra note 2, art. 87(1)(e). 103 Id. art. 87(1).

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not diminish this right that Slovenia undoubtedly has. As for the access to the high seas and the related concept of freedom of navigation, it is undisputed that the ships of all states enjoy the right of innocent passage through territorial seas of other states.104 It is true that states may regulate passage through their territorial seas, but only for limited purposes, and with no discrimination against any one state. That Slovenian ships would have to abide by any such regulations while traversing Croatia’s territorial sea on their way to the high seas is a matter of substantial concern, but probably does not rise to the level of special circumstances under the international law of the sea. However, while international law does not appear to mandate the establishment of a corridor connecting Slovenia’s territorial sea with the high seas for the purposes of preserving Slovenia’s exercise of fishing and navigational rights, Slovenia’s concerns cannot be lightly dismissed.105 As for the Memorandum’s characterization of Slovenia as a geographicallydisadvantaged state, Slovenia undoubtedly meets the definition of such a state, as defined by the LOSC.106 However, the only rights that geographicallydisadvantaged states may receive pertain solely to the EEZ, and not to territorial seas or the high seas, especially with respect to delimitation. Indeed, the LOSC grants these states only “the right to participate…in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region.”107 Again, no state bordering on the Adriatic Sea has declared an EEZ in that sea, so the middle part of the Adriatic continues to have the status of the high seas.108 The only right that Slovenia has under its status as a geographically-disadvantaged state cannot, hence, be exercised in the Adriatic due to the absence of an EEZ of any state there. Furthermore, it appears that no judicial or arbitral decision pertaining to the delimitation of the territorial sea has ever taken the geographically-disadvantaged status into account when making a decision. In light of the aforementioned analyses, it appears that a judicial or arbitral body would probably not favor the creation of a high seas corridor, especially if any such corridor had the effect of compartmentalizing a portion of Croatia’s territorial sea into a triangle that does not touch Croatia’s coast or any other portion of its territorial sea. Finally, the third issue regarding the Agreement stems from the fact that Slovenia receives a substantial portion of territorial sea which it would not be entitled to if the line of equidistance were used. What is especially peculiar about this fact is that such enlargement of Slovenia’s territorial sea is not even 104

Id. art. 17. For the analysis of the seriousness of Slovenia’s concerns, and the potential impediments of its navigational rights through Croatia’s territorial sea, see Section V(B) infra. In particular, see infra notes 114-20 and the accompanying text. 106 “[G]eographically disadvantaged States" means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own. Id. art. 70(2). 107 Id. art. 70(1). 108 Delimitation, supra note 11, at 967. 105

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necessary for the establishment of a corridor, as any such corridor could simply extend further north until it reached Slovenia’s territorial sea that Slovenia would receive if equidistance is applied. Indeed, a map that would establish such an arrangement is the only kind that could have been found in the Croatian media immediately following the Agreement.109 This issue, however, is not as controversial as that of the corridor itself. It can be argued that the principle of non-encroachment dictates that equidistance not be used in the Bay of Trieste when delimiting Croatian and Slovenian territorial seas. The principle of non-encroachment is well-established in international law, and it aims to ensure that a delimitation line does not have the effect of cutting-off one of the states from part of its maritime projection. Or, in the words of the ICJ: . . . the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another when the configuration of the latter’s coast makes the equidistance line swing out laterally across the former’s coastal front, cutting it off from areas situated directly before that front.110

It is questionable whether the line of equidistance would have this effect on Slovenia, but the argument can be made that such a line is situated directly before at least a portion of its coast.111 More importantly, however, the area in question is relatively small, and Croatia could probably afford to cede it to Slovenia in the interest of good neighborly relations.

V. Bridging the Gulf: Recommendations for a Negotiated Solution A. The Potential Likelihood of a Diplomatic Settlement In light of the preceding analysis, it appears unlikely that a tribunal would render an award as favorable to Slovenia as that which occurs under the Agreement. It should not be assumed, however, that this conclusion will lead Croatia to submit the dispute to a third body. While it may well be true that Croatia stands to gain 109

See0DUNR%DULãLüŠto dobiva Hrvatska u zamjenu za odricanje od dijela svoga teritorija [What does Croatia Receive in Return for Relinquishing a Part of its Territory], VJESNIK, July 21, 2001, map, at 3. Indeed, one is tempted to ask whether the Croatian Government purposefully provided a wrong map in order to deflect even greater criticism. It is, indeed, evident that the map appearing in the Croatian media is incorrect. Primarily, Map Exhibit C depicts the official map appended to the Agreement. Furthermore, by comparing the coordinates contained in the Agreement, it is evident that the map found in the Croatian media sources does not correspond to those coordinates. 110 North Sea Cases, supra note 3, para. 44. 111 See Map Exhibit B. Any encroachment that may be present here, however, is not nearly as evident as that which was present in the dispute between Guinea and GuineaBissau. See Guinea/Guinea-Bissau Award, supra note 77.

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substantially in any such litigation or arbitration, those gains would correspond to the territorial sea boundary only, and would not include any political, economic, or other gains that an agreement may obtain. Thus, the potential for a negotiated settlement continues to exist even though the Agreement in its current form will probably not constitute that settlement. While compromises must be made by both sides, the interests of both states dictate that the dispute be resolved amicably through negotiations. Indeed, Slovenia is probably eager to avoid a mediated or litigated solution because the results of any such solution would likely be detrimental to its primary interests, while Croatia, although in a more favorable position under international law, needs to preserve friendly and cooperative relations with Slovenia in order to advance its European integration ambitions.

B. Gunboat or Fishing Boat Diplomacy?: Defining the Two States’ Objectives In order for the two countries to reach an agreement, they must acknowledge their mutual concerns, and take them into account when presenting their respective positions. Reduced to the basics, the two countries’ objectives can be summarized as follows: For Slovenia, its objections appear to focus on the delimitation in isolation from other issues. In the Bay of Piran, Slovenia is willing to forego its initial claim to the entire maritime area of the Bay, but it refuses to accept the line of equidistance. As a result, Slovenia is adamant about receiving at least eighty percent of the Bay’s waters, and this request can probably be accommodated considering the fact that Croatia is willing to cede some area in the Bay beyond the line of equidistance. As for the boundary line further in the Bay of Trieste, Slovenia wishes to receive an additional area of territorial sea to which it would not be entitled if the line of equidistance were employed, but its overarching objective is that its territorial seas touch upon the high seas “at least in a narrow region.”112 As for Croatia, its objectives are largely political, economic and strategic in nature, and are more important than the actual place of the maritime boundary with Slovenia. Hence, Croatia appears more interested in achieving an amicable solution that is satisfactory to Slovenia and which would lead to gains in other fields, than in preserving all of the rights to which it is arguably entitled under the law of the sea. However, the political, economic, and strategic objectives that Croatia hopes to achieve by offering concessions to Slovenia will be largely frustrated if such concessions are not limited at least to a certain extent. This is so because these objectives can be achieved only by striking a careful balance between accommodating Slovenia’s objectives on the one hand, and taking into account Croatia’s internal political concerns on the other. Any solution, hence, must also take into account the political opposition in Croatia, security concerns associated with relinquishing a portion of the territorial sea so close to the Croa112

Delimitation, supra note 11, at 954-55 (citing the Croatian translation of the Memorandum).

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tian coast, and the strategic issue of preserving Croatia’s territorial sea boundary with Italy. Thus, in order to reach a solution that is satisfactory to both sides to the dispute, the following recommendations are in order. Primarily, Croatia should be sensitive to Slovenia’s demands for a direct access to the high seas, and the opposition politicians, as well as the media and the public should understand their legitimacy, rather than continue to view them as unwarranted concessions on Croatia’s part. It is, indeed, debatable whether the Slovenian demands for a high seas corridor are exclusively grounded in matters of convenience rather than tangible concerns.113 It is technically correct that fishing and navigational rights can be exercised almost as effectively by traversing another country’s territorial seas as by accessing the high seas directly. However, countries enjoy significant sovereign rights in their territorial seas, and it is at least possible that Croatia could attempt, at some future point, to use those rights to the fullest extent, or even abuse them at the expense of the Slovenian ships traversing Croatia’s territorial seas.114 Indeed, Croatia is on record as a country that has asserted maritime claims that are excessive under international law of the sea. As recently as 1998, for example, the U.S. Navy conducted operational assertions in Croatia’s territorial sea, challenging Croatia’s requirement that foreign military ships obtain permission prior to entering its territorial sea.115 Croatia is one of only thirteen countries that have made this excessive claim under international law in recent years,

113

The importance of being able to reach the high seas without traversing the territorial seas of other states cannot be dismissed as an issue of convenience, as opposed to a tangible concern, in light of the relevant precedents and state practice. Monaco, for example, was concerned about being able to reach the high seas without having to cross France’s territorial seas, despite the exceptionally friendly nature of relations between the two countries. Moreover, much of the ongoing territorial dispute between Belize and Guatemala has focused on the Guatemalan demands for access to the high seas. This factor even caused Belize to limit the breadth of its territorial sea in the area bordering Guatemala to three nautical miles in order to provide a framework for a definitive boundary solution with Guatemala. See http://www.cdera.org/Countries/belize.htm. See also http://www.belizeguatemala.gov.bz/belize_position.html#2. The difference between the Belize-Guatemala and the France-Monaco cases on the one hand, and Croatia-Slovenia on the other, is that the latter case is considerably more difficult to resolve if all of the major objectives of both states are to be met. The complexity of the problem, however, does not indicate that Slovenia’s demands for access to the high seas are any less justified than those of Monaco or Guatemala. 114 The vague wording of the LOSC could allow Croatia to harass ships going to and from Slovenia’s ports by, for example, claiming that such ships are not engaged in passage, see LOSC, supra note 2, art. 18, claiming that they are engaged in passage that is not innocent, see id. arts. 19 & 25, or arresting a ship by using one or more LOSC arrest authorizations, see id. arts. 27-28. Additionally, Croatia could order Slovenia’s warships to leave its territorial sea by claiming that they are not complying with Croatia’s “laws and regulations,” see id. art. 30. 115 See http://www.defenselink.mil/execsec/adr1999/apdx_i.html (last visited April 7, 2003).

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forcing the U.S. Navy to challenge it.116 Croatia’s Maritime Law that imposes this requirement on foreign warships was passed in 1994, and may well be one of the remnants of the nationalistic rule RI )UDQMR 7XÿPDQ &URDWLD¶V ODWH leader.117 Nonetheless, the fact that Croatia has not yet removed this and other excessive claims118 from its Maritime Law helps to explain why Slovenia wishes to avoid having to traverse Croatia’s territorial sea on the way to the high seas.119 In fact, the only recourse available to Slovenia in case of abuse or excessive claims by Croatia would be costly, protracted, and uncertain proceedings against Croatia before international legal institutions, causing Slovenia’s fishing, shipping, and other interests to suffer during any such period. Finally, Slovenia would not enjoy overflight rights over Croatia’s territorial sea, even absent any abuse by Croatia, but would, instead, have to seek overflight permission for all aircraft flying over Croatia’s territorial sea on their way to or from Slovenia. Enabling Slovenia to reach the high seas without traversing Croatia’s territorial seas, on the other hand, would entirely eliminate the possibilities for abuses, and would ensure Slovenia’s overflight rights. Thus, it is the potential for abuses, and the lack of overflight rights, in the territorial sea of another state, not the peripheral advantages, that have largely motivated Slovenia’s calls for a high seas corridor. One such peripheral advantage that a high seas corridor itself would provide is an additional area of sea in which Slovenia’s fishermen could fish in. Slovenia, however, probably does not even view this as a considerable advantage, considering the fact that a corridor is meant to be just that: a portion of the sea used for navigation leading to and from Slovenia’s territorial seas. Moreover, the relatively small size of the corridor minimizes this peripheral advantage even further. Although not officially articulated by Slovenia, an additional factor that must nonetheless be considered concerns the issues of sovereignty, national pride, and a desire to be a full-fledged coastal state.120 These are likely among Slovenia’s primary concerns, and while its ability to sail its warships or its submarines, or fly its airplanes in any way it desires121 has little practical effect in the region flanked by NATO and EU countries, the symbolic effects of possessing such rights cannot be discounted. 116 Id. The other twelve states are Albania, Algeria, Iran, Maldives, Malta, Seychelles, Somalia, Sudan, Syria, Vietnam, Yemen, and the United Arab Emirates. Id. 117 Republika Hrvatska, Pomorski Zakonik [Republic of Croatia, Maritime Law], Art. 23, 17 NARODNE NOVINE 94, February 2, 1994, available at http://www.pomorstvo. hr/propisi/pomorski-zakonik.htm. 118 Croatia’s Maritime Law also states that no more than three warships of the same nationality may traverse Croatia’s territorial sea at the same time, a requirement that is clearly unsustainable under the international law of the sea. Id., Art. 27. 119 Needless to say, Slovenia’s Navy is probably not in a position to conduct “operational assertions” in Croatia’s territorial sea with the same effectiveness as the U.S. Navy. 120 Although never officially articulated as an overarching interest, this factor has often been emphasized by Slovenia’s officials. For example, Slovenia’s Prime Minister, commenting on the Agreement, stated that it confirms Slovenia’s “position as a maritime state…allowing Slovenia to reemphasize its sovereignty, and to ensure additional stability and security.” 0LKDLOR1LüRWDSlovenija prvi put dobiva izlaz na otvoreno more [Slovenia Gains Access to the High Seas for the First Time], VJESNIK, July 21, 2001, at 3. 121 This cannot be done in or over the territorial sea of another country, see LOSC, supra note 2, art. 17-20.

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As for Croatia’s concerns, the public outcry over the Agreement appears justified at least in some respects, particularly when it is considered that international law appears to operate in favor of Croatia’s original positions. Perhaps the thorniest issues are the existence of a high seas corridor and a small triangular patch of the Croatian territorial sea not connected to the rest of Croatia’s territorial waters. As for the corridor, the Agreement transforms a portion of the Croatian territorial sea so close to the Croatian coast into an area where ships of all nations have almost unlimited rights, including the right to fish, exploit submerged resources, erect research and exploration platforms, conduct military exercises, etc.122 While Croatia’s and Slovenia’s intention may be to treat the area in question primarily as a corridor, they must understand that third states will view the area as the high seas first and a corridor second . Moreover, with respect to the triangle of Croatia’s territorial sea, it is debatable whether Croatia could continue to exercise sovereign rights over that area in the absence of recognition by other states. The LOSC declares that “[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters…to an adjacent belt of sea, described as the territorial sea.”123 It is, then, at least foreseeable that other countries could ignore Croatia’s exercise of sovereignty in the triangle area, arguing that international law does not recognize as territorial sea any waters which are not adjacent to the coast. This could have the effect of extending the high seas designation from the corridor to the triangle, at least for the purposes of third states that might wish to extend such a designation.124 This possibility is particularly likely when it is considered that, as best as it can be determined, there exists no precedent of a country claiming as territorial seas waters that nowhere touch upon the rest of its territorial sea. Naturally, this problem would not exist if the necessity for retaining Croatia’s territorial sea boundary with Italy could be addressed in some other way. In such a case, the high seas corridor could simply be adjacent to the Italian territorial sea, leaving the Croatian territorial sea as a contiguous unit. That fact notwithstanding, it has been made abundantly clear by Croatia’s officials that they do not wish to even contemplate the possibility of loosing the territorial sea boundary with Italy, both in order to preserve its sole border with a present EU country, but also in order to avoid any potential undermining of the Treaty of Osimo.125 122

These scenarios are not very likely, to be sure, but the effect of their hypothetical existence on a country’s psyche cannot be discounted. Moreover, while the scenarios appear unlikely at the moment, a change in geopolitical circumstances could make this high seas corridor a very troublesome area for Croatia, but also for Italy, and even for Slovenia. 123 LOSC, supra note 2, art. 2(1). See also Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 103 “a legal title to a maritime zone adjacent to its coasts.” (italics in original). 124 Slovenia, of course, would not be entitled to make such a claim because the Agreement would preclude it from doing so. The Agreement, however, would have no legal effect on other states that might, for one reason or another, wish to usurp Croatia’s claim to the triangle area. 125 While the desire to preserve a border with an EU state is largely motivated by symbolic considerations, the possible undermining of Croatian rights under the Treaty of Osimo is a more tangible concern. Were the high seas corridor to be adjacent to the Ital-

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Finally, it must be borne in mind that the boundary with Slovenia is not Croatia’s only remaining open boundary question, and any precedents that are established within the context of negotiations with Slovenia may affect the resolution of disputes with other Croatian neighbors. A very serious and ongoing dispute exists with Serbia-Montenegro over the Prevlaka peninsula, Croatia’s southernmost point. The land boundary is not the only source of the dispute, as the maritime boundary in this region will also need to be determined. While the Croatian officials have indicated that any solution that is reached in the dispute with Slovenia will not have the slightest bearing on the negotiations with SerbiaMontenegro over Prevlaka,126 it is possible that the Serbian and Montenegrin officials might fortify their positions with a hope that Croatia would be willing to offer concessions similar to those that it agreed to within the context of the dispute with Slovenia. While this possibility, admittedly, is small, the greater problem for Croatia’s government concerns the very likely possibility that the public and the opposition would react very strongly against any compromises that might be made in the dispute with Serbia-Montenegro, however slight such compromises may be, particularly if the perception remains that Croatia’s interests were substantially hurt in the settlement with Slovenia.

C. Striking the Middle Ground: The Adriatic Meets the EEZ Considering the aforementioned limitations and considerations, and in light of the fact that the Agreement is not likely to be ratified by at least one of the parties, several recommendations for a negotiated solution of the dispute are in order. Primarily, the boundary in the Bay of Piran should probably not follow the equidistance line due to the special circumstances created by the greater Slovenian use of and interests in the Bay, especially considering the Bay’s small size. To be sure, it is not only fishing and other rights that Slovenia would exercise in the Bay, but it would also bear the responsibility for maintaining its biological and ecological balance, something that can be done more effectively by a single country, especially when such a country has more compelling interests than the other, and when the size of the area in question is so small. This does not mean that Slovenia should be awarded the entire maritime area of the Bay, so that its sovereignty would extend to Croatia’s beaches. Rather, the line from the Agreement should either remain, or be slightly modified to address the Croatian concerns that an eighty-twenty division is too drastic.

ian territorial sea, Italy could, theoretically, declare the area its territorial sea because the corridor would lie less than twelve nautical miles from its shores. In making such a claim, Italy could assert that Croatia voluntarily relinquished its rights to the area as given to it by the Treaty of Osimo, and that Italy was free to claim the area for itself, Croatia’s and Slovenia’s assertion that the corridor constitutes the high seas notwithstanding. 126 6KRUWO\DIWHUWKH$JUHHPHQWZDVLQLWLDOHG,YLFD5DþDQ&URDWLD¶V3ULPH0LQLVWHU answered a reporter’s question as to whether the settlement with Slovenia might in any way serve as a precedent in solving the dispute over Prevlaka by stating: “it cannot, I say that categorically, hold me to my word.” HRT Vijesti, Konferencija za novinare PremiMHUD,YLFH5DþDQD>3ULPH0LQLVWHU,YLFD5DþDQ¶V3UHVV&RQIHUHQFH], July 25, 2001, available at http://www.vlada.hr/racan-press.09.html.

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The additional territorial sea outside of the Bay of Piran that the Agreement gave to Slovenia by deviating from the equidistance method should be awarded to Slovenia in any subsequent negotiations, primarily in order to satisfy the principle of non-encroachment, but also to take into account the relatively small size of Slovenia’s territorial sea and the needs of its fishermen and population. As already noted, the additional territorial sea that Slovenia gains in the Bay of Trieste constitutes a relatively small area, especially as far as Croatia is concerned.127 Moreover, the opposition to the Agreement in Croatia did not focus on the loss of this small area of sea, but rather was directed for the most part at the creation of the high seas corridor and its implications for the “triangle” separated from the rest of Croatia’s territorial sea. With that in mind, those two thorny issues deserve special attention. With respect to the corridor, Croatia should understand Slovenia’s desire to have an access to the high seas, but Slovenia should also take into account the dangers that creating the high seas in the middle of Croatia’s territorial seas connotes. Considering these two concerns, it would seem natural to propose that Croatia should grant Slovenia an easement, long term or even perpetual, to traverse Croatia’s territorial sea on the way to the high seas. It would not be difficult to word any such easement agreement in a way that would provide Slovenia’s ships, military and civilian alike, with a right to use certain portions of Croatia’s territorial waters as if they were the high seas. Moreover, a comprehensive easement agreement could easily extend such a right to any ships traversing Croatia’s territorial sea on the way to or from Slovenia’s ports, thereby satisfying Slovenia’s objectives to have access to the high seas. It must, however, be reiterated that Slovenia’s primary and overarching objective is not access, but rather a direct access to the high seas. For the reasons already discussed, Slovenia is probably not willing to accept any arrangement that would require it to pass through Croatia’s territorial sea on the way to the high seas, regardless of any special rights that an easement agreement could confer. In fact, Croatia has offered such an option to Slovenia during the negotiations,128 but the Slovenian officials have been adamant in their demands that the territorial sea of Slovenia should “at least in a narrow region touch upon the high seas in the Adriatic.”129 Indeed, it is not only the psychological concerns associated with having direct access to the high seas that motivate such Slovenian approach, but some tangible legal issues exist as well. Regardless of how carefully any easement agreement may be worded, Croatia would continue to exercise sovereignty in its territorial sea for the purposes of international law, the existence of an easement notwithstanding. Slovenia, hence, would be entitled to very few protections in an easement area under the relevant law of the sea conventions, and its rights would be dependent on the continued observation of 127

The area in question is not larger than 100 square kilometers. See supra note 51. In contrast, the total area of Croatia’s territorial sea is 23,870 square kilometers large. See http://www.hr/hrvatska/geography.en.shtml. 128 Are Additional Negotiations Possible?, supra note 55, at 5. 129 Delimitation, supra note 11, at 954-55 (citing the Croatian translation of the Memorandum). For Slovenia’s refusal to accept Croatia’s easement offers, see Are Additional Negotiations Possible?, supra note 55, at 5.

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this easement agreement by Croatia. Moreover, a change in economic, political and strategic circumstances could eventually motivate Croatia to erode the rights that an easement might grant to Slovenia, or even attempt to abrogate the easement altogether. As a result, and in order to satisfy both countries’ primary objectives and concerns, a compromise solution must be offered. While it is true that Slovenia is adamant about receiving a direct access from its territorial waters to the high seas, the practical side of this objective is that Slovenia wishes to avoid having to traverse the territorial seas of another country as its only way to the high seas. This, to be sure, is a tangible concern. As already discussed, countries enjoy sovereignty in their territorial waters, and other states are subject to considerable limitations while using those waters, or, as importantly, the air space above them. Croatia, on the other hand, is justifiably concerned about the connotations that the creation of a high seas corridor so close to its shores would entail. Hence, the middle ground between an easement in Croatia’s territorial sea and a high seas corridor running through that sea must be found. Considering that the EEZ is usually the middle ground between the territorial sea and the high seas, it is only appropriate that any middle-ground solution involve that jurisdictional zone. Simply stated, the corridor envisioned in the Agreement should be declared Croatia’s EEZ, and the triangle should remain its territorial sea. Before anything further can be said, it must be reiterated that a less complicated solution simply does not exist if all of the primary objectives and concerns of both states are to be addressed. Without a corridor of some kind, Slovenia cannot reach the high seas without traversing the territorial seas of Italy or Croatia. Unlike the Monaco-France and the Gambia-Senegal agreements, Croatia, if it wishes to preserve its border with Italy, cannot maintain the unity of its territorial seas. Hence, both the corridor and the triangle remain the necessary components of any potential settlement between Croatia and Slovenia, however unprecedented and unorthodox the combination of these two creations may be. Without such a combination, one of the states will be forced to relinquish its main objectives, destroying the possibility for a mutually-acceptable negotiated solution. Once these factors are taken into account, it becomes readily apparent that the only possibility for an agreement that would be satisfactory to both states involves the creation of a corridor that would constitute Croatia’s EEZ, and that would run through the middle of Croatia’s territorial sea. In other words, the only major difference between this proposal and the Agreement is that the high seas corridor envisioned in the Agreement would instead be declared an EEZ belonging to Croatia. The triangle of Croatia’s territorial sea lying west of that corridor would remain in order to preserve Croatia’s territorial sea boundary with Italy. While it is true that this proposal differs from the Agreement in only one respect, the importance and value of that difference should not be underestimated. By following this method, Croatia and Slovenia will ensure that both countries’ primary objectives and concerns are satisfied, allowing both of them to view the solution as a full-fledged compromise that will not leave either party with a feeling that it had jeopardized its national interests. As for Croatia, not only will its border with Italy be preserved, but the proposal ensures that third states are not given the possibility to engage in fishing, research, mining, con-

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struction, and other activities incompatible with the status of the EEZ130 so close to its coast. Slovenia, for its part, will enjoy practically all of the navigational rights in this zone that it would enjoy if the zone were to be considered the high seas.131 Indeed, the legal regime that is applicable in the EEZ provides the coastal states with very limited rights. Conversely, the rights of the third states in this zone are substantial, and most of them cannot be abrogated by the coastal state. Also fitting for the dispute at hand is the fact that the rights that coastal states have in their EEZs are sufficient to address Croatia’s major concerns, while the rights of the third states in this region are broad enough to satisfy practically all of Slovenia’s objectives. The arrangement also allows Slovenia to receive far more than it could probably hope for under arbitration or litigation, while it gives Croatia an opportunity to resolve the dispute with its closest and strategically most important neighbor in an amicable manner. The LOSC defines the EEZ as “an area beyond and adjacent to the territorial sea.”132 The sovereign rights of a coastal state in the EEZ are limited to the exploration and exploitation of natural resources,133 and jurisdiction with regard to: (i) the establishment and use of artificial islands, installations and structures,134 (ii) marine scientific research,135 and (iii) the protection and preservation of the marine environment.136 In addition, the coastal state has the exclusive right to construct and to authorize and regulate construction and use of artificial islands and other installations in its EEZ.137 The coastal state may carry out enforcement measures, but only “in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the EEZ.”138 This includes rights to “determine the allowable catch of the living resources,”139 and jurisdiction over artificial islands or structures “with regard to customs, fiscal, health, safety and immigration laws and regulations.”140 Unlike with the territorial sea, however, the coastal state may not institute or enforce any laws that do not pertain to these limited rights. Moreover, the coastal state is not allowed to impose imprisonment, “or any other form of corporal punishment,” for violations of fisheries laws and regulations in the EEZ. 141 130

LOSC, supra note 2, art. 56. Id. art. 58. 132 Id. art. 55. The implications of this provision for the legal status of the triangle will be discussed infra. 133 Id. art. 56(1)(a). “In the exclusive economic zone, the coastal State has sovereign rights for the purpose “of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. . . . ” Id. 134 Id. art. 56(1)(b)(i). 135 Id. art. 56(1)(b)(ii). 136 Id. art. 56(1)(b)(iii). 137 Id. art. 60(1). 138 Id. art. 73(1). 139 Id. art. 61(1). 140 Id. art. 60(2). 141 Id. art. 73(3). 131

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As for the rights of third states in the EEZ, they enjoy the freedoms of navigation and overflight, the freedom to lay submarine cables and pipelines, as well as “other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines.”142 Hence, the only rights that states enjoy on the high seas but not in the EEZ of another state involve freedom to construct artificial islands, freedom to fish, and freedom of scientific research.143 With respect to the corridor, however, the freedoms associated with the EEZ are more than sufficient to satisfy all but the most symbolic Slovenian objectives,144 while the absence from the EEZ of the additional rights found on the high seas serves to protect not only Croatia’s interests, but those of Slovenia as well. Primarily, as was already noted, the corridor that the Agreement declared the high seas would, for the purposes of international law, and as far as third states are concerned, be seen primarily as the high seas. Under LOSC, however, “no State may validly purport to subject any part of the high seas to its sovereignty.”145 The Agreement between Croatia and Slovenia notwithstanding, the ships of all nations would be free to engage in almost any activity they desire,146 including unlimited fishing, construction, research, and exploration, and there would be nothing that either Croatia or Slovenia could do to stop them. While it is true that Croatia, should the corridor be declared its EEZ, will be free to engage in these activities itself, any effects that one country may produce would likely be far less harmful than those produced by a number of countries, especially when the one country in question is so close to the affected area and probably does not wish to engage in any harmful activity.147 In fact, Croatia, by having the corridor as its EEZ will be able to ensure that harmful activities are not carried out by third states. Moreover, while Croatia’s rights in the EEZ corridor proposed here can be easily restricted in reference to Slovenia by the two

142

Id. art. 58(1). See id. Compare with the freedom of the high seas as defined in LOSC, supra note 2, art. 87(1). 144 Perhaps having a direct access to the high seas is important for a country’s psyche, but, as will be shown, adequate mechanisms can be employed to ensure that only purely symbolic, and no substantive, interests of Slovenia will suffer. 145 LOSC, supra note 2, art. 89. 146 Excluding such limited actions which are prohibited even on the high seas, such as piracy, unauthorized broadcasting, slave trade, illicit drug trade, etc. See id. arts. 99109. 147 For example, were Croatia to construct artificial islands or structures in this corridor, it would be obligated to give “[d]ue notice . . . of the construction,” maintain “permanent means for giving warning of their presence, . . . establish reasonable safety zones around such…installations,” and “take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.” Id. art. 60. While similar measures appear to apply for such installations on the high seas, see id. art. 87(d), referring to Part VI of the LOSC, (Part VI declares that “[a]rticle 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf,” id. art. 80), these provisions are far more ambiguous, and their enforcement would be significantly more difficult against third states than it would be against the coastal state in its EEZ. 143

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countries through a comprehensive agreement, the rights of third states in a high seas corridor cannot be so limited. Indeed, Slovenia’s argument that it is a geographically disadvantaged state would carry more weight if the corridor were to be declared Croatia’s EEZ. The LOSC grants geographically disadvantaged states, which Slovenia arguably is,148 “the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region.”149 The LOSC declares that “the terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements.”150 While it may be shown that the corridor area will yield no “surplus of the living resources,”151 the LOSC does not prevent two states to enter into an agreement that would allow for the sharing of resources even absent any such surplus.152 Hence, although it is not likely that the corridor would be used for fishing, Croatia and Slovenia may agree that both states will enjoy equal fishing and other153 rights in this EEZ corridor. A practical result of such an agreement would be to grant Slovenia all of the benefits in the corridor that its designation as the high seas would allow, while at the same time enabling Croatia to preclude third states from exercising such rights. The most important Slovenian objectives, such as the freedoms of navigation and overflight in the EEZ corridor, would, of course, be ensured even in the absence of any additional specific arrangements.154 The only potential problem associated with the proposal raised here concerns the legal status of the Croatian triangle of territorial sea in the event that an EEZ corridor is created. As has already been noted, the triangle, necessary to satisfy Croatia’s objective of retaining a territorial sea boundary with Italy, will be separated from the rest of the Croatian territorial sea by this EEZ corridor. The LOSC, again, provides that territorial sea is a belt of sea adjacent to a coastal state’s land territory.155 The EEZ, in turn, is defined as “an area beyond and adjacent to the territorial sea.”156 While it is evident that these provisions do not contemplate an arrangement in which the territorial sea of a coastal state is divided by a belt of the EEZ, it appears to be a much more credible claim that a state has a right to preserve a divided belt of the territorial sea adjacent to a zone over which it possesses some sovereign rights (the EEZ) than to a zone where it has none (the high seas). To be sure, there exists no precedent that could answer this question, but a fair reading of the LOSC indicates that the arrangement is probably valid under international law. Namely, the freedoms of states are prac148

The LOSC defines geographically disadvantaged states as “coastal States . . . which can claim no exclusive economic zones of their own.” Id. art. 70(2). 149 Id. art. 70(1). 150 Id. art. 70(3). 151 Id. art. 70(1). 152 As already discussed, states enjoy complete contractual freedom when making boundary agreements. 153 Such as research, exploration, erection of artificial islands and structures, etc. 154 See LOSC, supra note 2, art. 58(1). This also includes freedom of laying submarine cables and pipelines. Id. 155 Id. art. 2(1) (emphasis added). 156 Id. art. 55.

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tically unlimited on the high seas, while they are subject to significant limitations in the EEZ of another country. With that in mind, it can be argued that Croatia is simply waiving some of its sovereign rights in the EEZ corridor, while preserving all of them in the triangle area. Preserving the triangle as its territorial sea, hence, is a significantly more valid exercise than if that triangle were adjacent to an area where all of Croatia’s rights have been waived. Third states, hence, will certainly not be able to claim that the triangle constitutes the high seas by extension from the corridor. At most, they will be able to assert that the area constitutes the extension of Croatia’s EEZ, the potential for which is far smaller, and significantly less problematic for Croatia. Moreover, Croatia can claim that this entire area constitutes contiguous territorial sea from which only a part is made different.

VI. Conclusions The dispute between Croatia and Slovenia over the territorial sea boundary in the Bay of Piran and the Bay of Trieste has reached a new level with the Croatian government’s indication that it would likely reject the Agreement and form new negotiating positions. Considering the amount of opposition to the Agreement in Croatia, both by the public and in the Parliament, this move was probably the only option that the government had despite its desires to resolve the dispute in an amicable manner and gain significant advantages in its strategic relations with Slovenia. Nonetheless, Croatia is probably not eager to seek a judicial or arbitral resolution of the dispute because any gains that it might so achieve over the boundary question would need to be weighed against the possible souring of the Croatian-Slovenian relations. Slovenia, for its part, is fully satisfied with the Agreement, but it probably understands that the Agreement cannot become operational until it is ratified by the Croatian Parliament, a move that has been unlikely from the moment the Agreement was initialed. Moreover, Slovenia is similarly reluctant to seek a third body resolution because the likelihood of any such body rendering a decision favorable to Slovenia is very low considering the relevant provisions of international law. As a result, the two countries should continue to seek a negotiated solution, but must, at the same time, take into account each other’s primary interests and concerns, and seek a compromise based on them. The most satisfactory such compromise identified here is an agreement that would grant Slovenia sovereignty over the larger portion of the Bay of Piran, provide it with more territorial sea further in the Bay of Trieste than it would be entitled to if the line of equidistance were used, and create a corridor constituting Croatia’s EEZ, while leaving a triangle of Croatia’s territorial sea beyond that corridor in order to preserve Croatia’s boundary with Italy. By following this proposal, the two countries will achieve their major objectives; Slovenia will have unlimited freedoms of navigation and overflight on the way to the high seas, while Croatia will preserve its territorial sea border with Italy and alleviate the concerns that the creation of a high seas corridor so close to its coast connotes. Moreover, Croatia and Slovenia may create an agreement sufficiently comprehensive to ensure that Slovenia

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would enjoy the freedoms in Croatia’s EEZ corridor that are normally associated with the status of the high seas, by granting Slovenia fishing, research and other rights in this corridor, while at the same time ensuring that no such rights are accessible to third states. Considering the geographical features of the area in question, a less complicated solution, does not appear to exist. This fact notwithstanding, the solution proposed here is the best possible means for ensuring that Croatia and Slovenia resolve the dispute in a friendly, negotiated manner, rather than submit to a costly, protracted, and uncertain judicial or arbitral mechanisms.

VII. Recent Developments In August 2003, Croatia announced its intention to proclaim an exclusive economic zone in the Adriatic, but in October 2003 its Parliament adopted a milder version of this ambitious proposal by declaring an “ecological and fisheries protection zone” (hereinafter EFPZ) with one year postponed implementation.157 The Government’s initial attempts to proclaim an EEZ ceased almost immediately after Italy and the European Union warned Croatia that a unilateral establishment of an EEZ in the Adriatic would not be viewed favorably upon.158 Slovenia, for its part, recalled its ambassador from Zagreb when the idea of an EEZ in the Adriatic was first announced by the Croatian Ministry of Agriculture and Forestry, and began to lobby against the plan in various European capitals.159 The pressure that came to bear on Croatia by the European Union and Slovenia160 was largely formulated along the lines that a unilateral proclamation of an EEZ in the Adriatic would be contrary to the European spirit of dialogue and cooperation,161 and that proclaiming an EEZ anywhere in the Mediterranean region would infringe upon the long-standing attitude of the European Union.162 Hence, both the pressure on Croatia, and Croatia’s eventual decision to forego an EEZ in the Adriatic, were framed in political, rather than legal terms.

157

The Government’s proposal for the proclamation of an “ecological and fisheries protection zone” was adopted by a vote of 70 to 44. The opposition, led by the ultranationalist Croatian Party of Rights, submitted a proposal for the proclamation of the exclusive economic zone, but this proposal failed to receive the majority of votes. See Hrvatska proglasila ekološko-ribolovni pojas [Croatia Proclaimed an Ecological and Fisheries Protection Zone], HTNET, Dec. 29, 2003, available at http://www.htnet. hr/vijesti/hrvatska/fset.html. 158 Id. 159 See Na ekološko-ribolovni pojas Slovenija odgovorila promjenom pomorskog zakonika [Slovenia Responds to the Ecological and Fisheries Protection Zone by Changing its Maritime Laws], VJESNIK, January 16, 2004, available at http://www.vjesnik.com/ html/2004/01/16/Clanak.asp?r=tem&c=4. 160 Slovenia became a member of the European Union on May 1, 2004. 161 See Davor Vidas, Global Trends in Use of the Seas and the Legitimacy of Croatia’s Extension of Jurisdiction in the Adriatic Se, 9 CROATIAN INTERNATIONAL RELATIONS REVIEW 32 (2003) at 4 [hereinafter Global Trends]. 162 Id. at 4 and note 1.

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The EFPZ that Croatia opted for instead of an EEZ is unique, though not entirely unprecedented. Fisheries zones are well established in international practice, and Spain has proclaimed a “fisheries protection zone” in the Mediterranean,163 while last year, France proclaimed an “ecological protection zone,” also in the Mediterranean.164 Hence, while both ecological and fisheries “protection zones” exist elsewhere in the world, the Mediterranean region included, Croatia is the first country to combine the two zones into one. This has led some observers to argue that Croatia’s zone encompasses about 95 percent of rights available in an EEZ, while some have even said that Croatia has in effect proclaimed an EEZ albeit under a different name.165 That Croatia may legally proclaim this zone, or even an EEZ for that matter, can hardly be disputed.166 Even the European Union Council of Foreign Ministers, while expressing regret about Croatia’s “unilateral” action, exclaimed that its statement was “without prejudice to sovereign rights of States deriving from the relevant international law.”167 The problem, thus, appears to be strategic and political in nature, and the question remains as to what implications, both political and legal, will ensue in Croatia’s dispute with Slovenia in the Bay of Piran as a result of Croatia’s action elsewhere in the Adriatic. These developments indicate that it has become increasingly necessary to give further attention to the overall maritime dispute between Croatia and Slovenia before further unilateral actions are undertaken. Indeed, the issue of territorial sea delimitation in the Bay of Piran and the Bay of Trieste between Croatia and Slovenia is inextricably linked to the issue of national jurisdictional zones elsewhere in the Adriatic, as the latter issue cannot be resolved to the satisfaction of all parties involved until a solution to the first issue has been found. Taking these considerations into account, it becomes apparent that the proposals raised earlier in this article are the most appropriate first step in the maritime dispute between Croatia and Slovenia. Namely, building upon the Prime Ministers’ Agreement, which, after almost three years since it was initialed, appears to be a dead letter, the two countries should create a corridor between Slovenia’s territorial sea and the currently-established high seas, this corridor constituting Croatia’s EEZ.168 Again, after carefully analyzing the two countries’ primary concerns, it appears that Slovenia’s greatest objective is to achieve a 163

See, for example, European Commission Press Release, Commission proposes tailor-made action plan for sustainable fisheries in the Mediterranean, Oct. 9, 2002, available at http://europa.eu.int/comm/fisheries/news_corner/press/inf02_32_en.htm. For a map of the Spanish fisheries protection zone, see http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/MAPS/ESP_MZN34_2000b&w.pdf. 164 France Fights Pollution in the Mediterranean, ENVIRONMENTAL NEWS NETWORK, Apr. 8, 2003, available at http://www.enn.com/news/2003-04-08/s_3737.asp. 165 See Global Trends, supra note 163, at 7, discussing various views that have emerged in the official Croatian circles and elsewhere. 166 For an excellent discussion of Croatia’s rights under international law, see Global Trends, supra note 163. 167 The Meeting of the Council of Foreign Ministers Press Release, Oct. 13, 2003, at 8, available at http://www.euitaly2003.it/NR/rdonlyres/B7D53033-1FBF-40E6-9656325A762E8EFB/0/1013_ER_conclEN.pdf. 168 For the full details of the proposal, see Section V supra.

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solution that would not leave its territorial sea entirely surrounded by the territorial seas of other countries.169 Whether any potential outlet from Slovenia’s territorial seas constitutes the high seas or an EEZ of another country is far less important, considering that Slovenia’s paramount concern is that its ships not have to sail, or its airplanes fly, through zones in which other countries have full sovereignty (i.e. territorial seas) in order to reach the high seas. Hence, with respect to the question of a corridor, it is navigational rights that Slovenia is primarily concerned with in any such corridor, and these rights can be exercised almost as effectively in an EEZ of another country as they can on the high seas. As for Croatia, on the other hand, it has already been explained here why a high seas corridor which would cut Croatia’s territorial seas into two parts, and which would be positioned so close to the Croatian coast, is an unacceptable solution, and the latest developments only reinforce these points. Croatia’s proclamation of an EEZ (or an EFPZ) further in the Adriatic, however, considerably complicates the equation. Slovenia’s ships would still have considerable navigational rights, but the practical effect of such rights would be substantially reduced if such ships had to sail almost all the way to the Mediterranean before reaching the high seas in which they could fish without restrictions.170 Hence, while airplanes could fly to and from Slovenia without entering Croatia’s (or Italy’s) airspace, and submarines on their way to or from Slovenia’s territorial sea could sail submerged, a Croatian EEZ or EFPZ elsewhere in the Adriatic could have disastrous effects on Slovenia’s fishermen. On the other hand, it appears that the Adriatic’s natural resources do need to be protected lest they be depleted in the years to come by the effects of activities such as distant-fleet fishing. Davor Vidas, for example, suggests that, while Italy has been publicly critical of Croatia’s move, it actually serves Italy’s interests that the Adriatic be protected by EEZs, as long as it is Croatia that makes the first move.171 In addition to his legal analysis of Croatia’s ability to proclaim an EEZ or an EFPZ in the Adriatic, Vidas makes a compelling argument that a recent increase of fishing by distant-water fleets in the Adriatic, as well as some newly-created ecological concerns, makes such zones in the Adriatic not only legally justified but also necessary.172 The wisdom of such an argument notwithstanding, the fact remains that Italy and Slovenia on the one hand and Croatia on the other remain sharply divided over how to achieve these objectives. Slovenia’s and Italy’s proposal for solving ecological and distant-fleet fishing problems in the Adriatic would cre169

Again, this would occur if the method of equidistance were to be employed. Even if Italy refrained from proclaiming an EEZ (or an EFPZ) of its own, the high seas that would remain in the Adriatic would be little suitable for fishing as only the eastern part of the Adriatic (which would fall under Croatia’s national jurisdiction) has adequate fish stocks left. 171 Global Trends, supra note 163, at 3. Vidas explains this by pointing out that Italy no longer enjoys the fishing supremacy that it once did in the Adriatic due to the recent emergence of fishing fleets from Asia, but that Italy is not in a position to make the first move, something that would not be looked upon favorably by the rest of the European Union. 172 See Global Trends, supra note 163. 170

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ate a joint fisheries zone for the Adriatic coastal states, but this is probably not a realistic solution considering the disparity of both capabilities and resources of the three states involved.173 Croatia’s proposal for national jurisdictional zones, however, is not overly realistic either, at least not in its present form. If Croatia were to unilaterally delimit its zone by following the method of equidistance, which is what it did when it proclaimed the EFPZ, Slovenia’s fishing capabilities would be greatly reduced, and, if Italy followed suit by proclaiming its own zone, would be limited to the small patch of Slovenia’s territorial sea. Even more important for the purposes of this article is that it almost goes without saying that any unilateral moves on Croatia’s part with respect to an EEZ or EFPZ prejudice the issue of territorial sea delimitation with Slovenia, creating a negative effect not only on Slovenia’s fishing, but also on its navigational capabilities. Indeed, while Croatia’s officials have gone at lengths to deny it, there is little doubt that the Parliament’s proclamation of the EFPZ was intended to place pressure on Slovenia in any negotiations about the status of the Bay of Piran and the territorial sea boundary between the two states.174 Both countries, hence, must take a joint approach to any matter that is even remotely associated with the original problem of the territorial sea delimitation between them, and this includes the issue of jurisdictional zones further in the Adriatic. The first step in this process should be the delimitation along the lines proposed in this article, creating a corridor between Slovenia’s territorial sea and the currently-established high seas that would constitute Croatia’s EEZ. Given Croatia’s unilateral action with respect to the creation of an EFPZ, and the resulting lack of trust between the two countries, any such delimitation agreement would have to contain a clause that would guarantee that the creation of an EEZ corridor would in no way serve as a precedent for creating similar jurisdictional zones elsewhere in the Adriatic. While the need for such zones may well exist, that problem should also be solved through joint negotiations between the two countries, and, as appropriate, others in the region, including of course Italy.

173 See id. at 2-3., quoting Croatia’s Deputy Foreign Minister who exclaimed that in a joint fisheries zone “Italy would be giving fishing fleet, Croatia fish, and Slovenia nothing.” See also 0DUNR %DULãLü =DMHGQLþND XSUDYD QDG -DGUDQRP QHSULKYDWljiva [Joint Jurisdiction in the Adriatic Unacceptable], VJESNIK, February 3, 2004, at 3. 174 The overwhelming victory of the nationalist Croatian Democratic Union party in the November 2003 Croatian Parliamentary elections may further complicate the matters.

CHAPTER 20

A Note on the Commission on the Limits of the Continental Shelf and the Submission of the Russian Federation Ted L. McDorman

I. The Commission on the Limits of the Continental Shelf: Overview1 The Commission on the Limits of the Continental Shelf (hereinafter the Commission) is one of the institutional bodies established pursuant to the 1982 United Nations Convention on the Law of the Sea.2 Annex II of the LOS Convention, “Commission on the Limits of the Continental Shelf,” directs that the

1

The section draws heavily from T.L. McDorman, The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World, 17 INT’L J. MARINE & COASTAL L. 301 (2002). 2 United Nations Convention on the Law of the Sea, Montego Bay, Jamaica, Dec. 10, 1982, 21 I.L.M. 1261, available at http://www.un.org/Depts/los/index.htm (entered into force Nov. 16, 1994) [hereinafter the 1982 LOS Convention]. 467 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 467-81. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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Commission is to be ccomposed of an elected group of 21 technical specialists, 3 with the following functions: (a) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea; (b) to provide scientific and technical advice, if requested by the coastal State concerned during the preparation of the data referred to in subparagraph (a).4 The concept of the Commission was an integral and useful component in the crafting of the diplomatic compromise respecting Article 76 of the LOS Convention and the formula for the determination of the outer limits of the continental shelf contained therein5 that is to be applied by states where the physical features of their adjacent continental margin allows for national jurisdiction to extend beyond 200 nautical miles. It is paragraphs 3 to 6 of Article 76 which establishes the multi-tiered formula for the determination of the outer limit of the continental margin. One scholar has described these paragraphs as combining the “influences of geography, geology, geomorphology, and jurisprudence.”6 It is not the purpose of this contribution to delve into the complexities of the meaning or the scientific uncertainties that arise from the wording of outer limit formula set down in Article 76.7 The following succinct summation of the Article 76 formula provides a brief insight into the above noted complexities and uncertainties. Pursuant to Article 76(4), the outer limit of a state's continental margin is to be either: (i) a line connecting the outermost points where “the thickness of sedimentary rocks is at least one per cent of the shortest distance from such point to the foot of the continental slope”, or (ii) a line connecting points “not more than 60 nautical miles from the foot of the continental slope”. Lines created pursuant 3

LOS Convention, Annex II, Article 2(1). The first election took place in March 1997. The second election took place in April 2002. See generally Commission home page, available at www.un.org/Depts/los/clcs_new/clcs/home.htm and accessible through the DOALOS home page, supra note 2. 4 LOS Convention, Annex II, Article 3(1). 5 Respecting the negotiating history of Article 76, see SATYA N. NANDAN AND SHABTAI ROSENNE, 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY, 837-90 (1993); EDWARD L. MILES, GLOBAL OCEAN POLITICS 380-88 (1998). 6 DOUGLAS M. JOHNSTON, THE THEORY AND HISTORY OF OCEAN BOUNDARYMAKING 91 (1988). 7 For a sampling of some of the complexities raised by the wording within Article 76, see UNITED NATIONS, DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, OFFICE OF LEGAL AFFAIRS, THE LAW OF THE SEA: DEFINITION OF THE CONTINENTAL SHELF (1993); CONTINENTAL SHELF LIMITS: THE SCIENTIFIC AND LEGAL INTERFACE (Peter J. Cook and Chris M. Carleton eds., 2000).

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to 76(4) are not to extend beyond either 350 nautical miles from a state's baselines or 100 nautical miles from the 2,500 metre isobath. For submarine ridges the 350 nautical mile limit applies. For “submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs,” either the 350 nautical mile or the 100 nautical miles from the 2,500 metre isobath criterion is the limitation. A further general limitation is that the continental margin does not include the oceanic floor with its oceanic ridges. The criteria are not easily applicable in any given situation because of the technical and definitional difficulties of determining thickness of sediment, foot of the continental shelf, the 2,500 metre isobath, and distinguishing among submarine ridges, oceanic ridges, and submarine elevations that are natural components of the continental margin.(footnotes deleted)8

While it is clear that it is the coastal state, not the Commission, which has the legal capacity to set the state’s outer limit of the continental margin,9 the LOS Convention does provide to the Commission a role in the establishment by a coastal state of its outer limits of the continental shelf utilizing Article 76 of LOS Convention. Annex II, Article 4 notes that within ten years of entry into force of the LOS Convention states which intend “to establish . . . the outer limits of its continental shelf beyond 200 nautical miles” are to submit to the Commission scientific and technical data to support their proposed establishment of such limits. At the Eleventh Meeting of the State Parties to the LOS Convention the state parties decided that the ten year time period would commence as of 13 May 1999.10 The Commission's role is restricted to the question of the outer limits of the continental shelf and does not interfere with the right recognized in both cus8

Adopted with some modification from T. L. McDorman, The Entry into Force of the 1982 LOS Convention and the Article 76 Outer Continental Shelf Regime, 10 INT’L J. MARINE & COASTAL L. 175-76 (1995). 9 The U.S. government, for example, has stated: “Ultimate responsibility for the delimitation [of the outer limit of the continental margin] lies with the coastal State itself.” Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, Commentary, attached to the Letter of Submittal from the U.S. Secretary of State to the U.S. President, part of the Message of Transmittal of the LOS Convention from the U.S. President to the U.S. Congress, Nov. 16, 1994, U.N. Doc. A/RES.48/263, U.S. Senate, Treaty Doc. 103-39, 103rd Congress, 2d Sess., 1994, at 57. See also UNITED NATIONS, DEFINITION OF THE CONTINENTAL SHELF, supra note 7, at 29. There is no disagreement on this point. 10 See Eleventh Meeting of State Parties to the LOS Convention, Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea, May 29, 2001, Doc. SPLOS/72, available at http://www.un.org/Depts/los/meeting_states_parties/documents/SPLOS_72e and accessible through the DOALOS home page, supra note 2. See also Report of the Eleventh Meeting of the State Parties, paras. 67-82, June 14, 2001, Doc. SPLOS/73, available at http://www.un.org/Depts/los/meeting_states_parties/ documents/splos_73 and accessible through the DOALOS home page, supra note 2.

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tomary international law11 and the LOS Convention12 of a coastal state to a continental shelf area beyond 200 nautical miles where the physical features are present.13 Moreover, Article 76(10) provides an important caveat respecting both the formula set out in Article 76 and the potential work of the Commission: “The provisions of this article [76] are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.” Paragraph 5(a) of Annex I of the Rules of Procedure adopted by the Commission in 1998 indicates that the Commission will not examine a submission where a land or maritime dispute exists.14 Paragraph one of the Annex I to the Rules of Procedure of the Commission notes: The Commission recognizes that the competence with respect to matters regarding disputes which may arise in connection with the establishment of the outer limits of the continental shelf rests with states.

Paragraph two of the Annex I indicates that it is up to the submitting state to inform the Commission of the existence of bilateral disputes. Rules 49 and 50 of the Rules of the Procedure provides that, after notice is given to non-submitting states, the Commission must wait ninety days before commencing work respect11

The International Court of Justice stated: [T]he rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short there is here an inherent right. North Sea Continental Shelf Cases (F.R.G./Den.;F.R.G./Neth.), 1969 I.C.J. 3 at 23 (Feb. 20). 12 LOS Convention, Article 77(1)-(3) provides: 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 13 LOS Convention, Article 76(1) provides: The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. 14 Submissions in Case of a Dispute between States with Opposite or Adjacent Coasts or in other Cases of Unresolved Land or Maritime Disputes, to Rules of Procedure of the Commission on the Limits of the Continental Shelf, Annex I, adopted Sept. 4, 1998, Doc. CLCS/3/Rev. 2. The most recent version, Doc. CLCS/3/Rev. 3, Feb. 6, 2001, is available at http://www.un.org/Depts/los/clcs_new/documents/CLCS_3r3.htm and accessible through the DOALOS home page, supra note 2 and the Commission’s home page, supra note 3.

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ing the submission. In the “Report of the Eighth Meeting of the States Parties,” it was noted that during the ninety day period states concerned about a submission involving a land or maritime dispute could “make relevant statements or raise objections” to the Commission.15 Article 76(8) is the key provision within the LOS Convention regarding the role of the Commission. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on Limits of the Continental Shelf set up under Annex II on the basis of equitable geographic representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

Annex II, Article 3(a) directs that the Commission is to “consider the data” and “make recommendations” to the submitting state respecting the outer limits of the continental shelf.16 LOS Convention, Annex II, Articles 5 and 6 direct that a subcommission of seven members is first to undertake the consideration of the information provided by a submitting state. The subcommission is to deliver its recommendations to the full Commission. The full Commission is to vote on the subcommission recommendations and if two-thirds of the Members agree, the subcommission recommendations are approved by the Commission and are transmitted to the submitting state and the Secretary-General of the United Nations. The relationship between the recommendations of the subcommission and the final recommendations of the Commission is unclear.17 Where a submitting state is in “disagreement” with the recommendations of the Commission, the state is to “make a revised or new submission to the Commission.”18 The relationship or process between the Commission and the submitting coastal state “was envisaged by its proponents . . . as being a narrowing down ‘ping-pong’ procedure”19 (emphasis added)—state submission, Commis15

Report of the Eighth Meeting of the State Parties, June 4, 1998, at para. 4, Doc. SPLOS/31, available at http://www.un.org/Depts/los/meeting_states_parties/documents/ SPLOS_31.htm and accessible through the DOALOS home page, supra note 2. 16 See supra note 4. 17 Can the Commission alter recommendations from the subcommission? Is the Commission only to approve or not approve the recommendations developed by the subcommission? Does the Commission have the authority to approve some but not all subcommission recommendations? The Rules of Procedure adopted by the Commission are silent on these issues. See supra note 14. The Modus Operandi of the Commission, adopted 1997, doc.CLCS/L.3, Sept. 12, 1997, available at http://www.un.org/Depts/ los/clcs_new/documents/CLCS_L.3.htm indicates in paragraph 16 that the Commission “will consider and approve or amend the report of the subcommission”. 18 LOS Convention, Annex II, art. 8. 19 Piers R.R. Gardiner, The Limits of the Area beyond National Jurisdiction—Some Problems with Particular References to the Role of the Commission on the Limits of the

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sion recommendations, state resubmission, Commission recommendations, etc.—with the submitting state, acting in good faith, and the Commission eventually achieving accord.20 However, it is important to note that there is no legislated endpoint to the “ping-pong” process.21 Finally, Article 76(8) of the LOS Convention states that: “The limits of the shelf established by a coastal State on the basis of . . . recommendations [made by the Commission] shall be final and binding” (emphasis added).22 The Commission appears to understand its mandate as one of providing guidance and information both to submitting states and other states with an interest in continental shelf outer limits. This, however, does not deal with the question of the role served by the Commission in outer continental margin delineation. It is submitted that the role served by the Commission in outer continental margin delineation is that of legitimator. Legitimation is not the same thing as legal or political approval. Moreover, legitimation must be understood not in terms of black-and-white (legitimate or illegitimate) but as a spectrum between greater legitimacy and lesser legitimacy. The calculation by a state of whether the establishment of a continental margin outer limit by another state is legitimate and whether a protest will or will not be issued by a non-claiming state involves law and politics. The state parties to the LOS Convention have not surrendered or delegated this calculation to the Commission. It can be suggested that the only concrete role of the Commission in the delineation of the outer limits is procedural. Article 76(8) directs that: “Information on the limits . . . shall be submitted by the coastal State to the Commission. . . . ” The Commission’s own description of its role found on its website states that the Commission’s role is to facilitate which is indicative of a procedural role.23 A failure by a claiming state to submit “information” to the Commission would be a breach of the LOS Convention, for which recourse may lie through the dispute settlement procedures, and may make any outer limit delineation established less legitimate in the eyes of other states. 24

Continental Shelf, in MARITIME BOUNDARIES AND OCEAN RESOURCES 69 (Gerald Blake ed., 1987). 20 Id. at 69. 21 Robert W. Smith and George Taft, Legal Aspects of the Continental Shelf, in Cook and Carleton, supra note 7, at 20, noting that the “process could go on indefinitely.” 22 For a detailed discussion of the meaning to be given “final and binding,” see McDorman, supra note 1, at 314-16. 23 See the Commission document Purpose, Functions and Sessions, available at http://www.un.org/Depts/los/clcs_new/commission_purpose.htm and accessible through the Commision’s home page, supra note 3 and the DOALOS home page, supra note 2. The Oxford English Dictionary provides the following definition for facilitate—”make easy or less difficult or more easily achieved.” 24 It is worth repeating that non-compliance with the submission requirements does not affect a coastal state's claim to a continental shelf area beyond 200 nautical miles

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For a submitting state, satisfying the procedural role of the Commission would appear to be quite straight forward. All that is required, according to Article 76(8), is that “information on the limits” be submitted. Annex II, Article 4 amplifies this informational requirement where it provides that: “a coastal State . . . shall submit particulars of such limits . . . along with supporting scientific and technical data.” There is no sense in either Article 76 or Annex II about the adequacy of such information. The Commission does not have the role or authority to dictate to submitting states what information is to be provided to the Commission to support a state’s asserted outer limit of the continental margin. The informational requirement in the wording of Article 76 and Annex II is open-ended and must be interpreted to favour the coastal state and not be predetermined by the Commission. There can be no such thing as inadmissible information or information which the Commission pre-determines that it will not consider. The Commission has, however, through a Scientific and Technical Guidelines document issued in 1999,25 attempted to create expectations on the type of information it hopes to receive. There is no burden of proof on the submitting coastal state respecting establishing its claim to the outer limit of the continental margin to the satisfaction of the Commission. To the extent that a burden of proof can be said to exist at all, where a coastal state submits the information the state feels to be relevant, the Commission has the burden of showing that the information is in some manner inadequate. Moreover, there is no precise standard of proof that the Commission can or should apply to the information supplied by the coastal state. It has been stated “the Commission must be satisfied that the data submitted truly reflect the geological/geomorphological conditions claimed” (emphasis added).26 Using “truly reflect” as a standard of proof is simply too onerous and inconsistent with the role of the Commission. The approach of the Commission must be one of reasonableness and educated guess not absolutism and certainty. The Commission’s task as legitimator and guardian must take priority over the natural tendency of technical professionals to seek precision and apply rigorous scientific standards of proof. Once the procedural hurdle is overcome (the Commission mailbox stuffed with information), the role of the Commission is purely informational. Its task is to “consider the data” and “make recommendations.” In short, the role of the Commission is to provide information both to the submitting state and, through the Secretary-General of the United Nations,27 to other states concerning the since: (a) the Commission only deals with “outer limits” and (b) a coastal state's right to a continental shelf is premised in customary international law. See supra notes 12-14. 25 Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, adopted May 13, 1999, Doc. CLCS/11, available at http://www.un.org/Depts/los/clcs_new/documents/ clcs_11.htm and accessible through the Commission’s home page, supra note 3 and the DOALOS home page, supra note 2. 26 UNITED NATIONS, DEFINITION OF THE CONTINENTAL SHELF, supra note 7, at 28. 27 LOS Convention, Annex II, art. 6(3).

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general congruency of the submitted information and the outer limit claimed by the submitting state. It is the view of the Commission that the “recommendations” that can be made include suggestions as to where the outer limits should be located.28 Both the submitting state and other states will receive the information from the Commission and use that information as it sees fit in determining how to proceed with the location of the outer limits29 or whether to protest the location of the outer limits. In simple terms, the greater the accord between the submitting state and the Commission, the more likely that other states will perceive the proposed outer limits as legitimate with the converse also being true. What should concern the Commission is not so much whether a submitting state justifies its choice of outer limit, rather whether, in the view of the Commission, there is an exaggerated claim. In discussing the Commission, the government of the United States made use of the word “safeguards.”30 This is a useful way of looking at the role of the Commission—it has a safeguard or watchdog role respecting exaggerated continental margin claims. The Commission is without significant direct authority in the relationship with a submitting state and the intended role of the Commission was as “the canary in the mine shaft” respecting exaggerated continental shelf outer limit claims.

II. The Submission to the Commission from the Russian Federation In late 2001, the Russian Federation became the first state to submit to the Commission data and information respecting the proposed outer limits of its continental shelf in the Arctic and Pacific Oceans. 31 The notification of the Rus-

28

Modus Operandi of the Commission, supra note 17, para. 7 provides: The recommendations of the Commission will deal primarily with the definitive position of the outer limit of the continental shelf of the coastal state. Where the outer limit of the continental shelf is different from that proposed in the submission, the Commission's recommendations will include the position of its revised outer limits, and the reasons for its revision. 29 The submitting state is obligate to resubmit revised information on the outer limits (LOS Convention, Annex II, art. 8), although, as noted above, there is no defined endpoint to this process. See supra notes 18-21. 30 See 1994 U.S. Commentary, U.S. Senate Treaty Doc. 103-39, supra note 9, p. 57. This Commentary does not explicitly indicate that the Commission is to provide “safeguards,” although this is clearly what is intended. “The Commission is designed to provide a mechanism to prevent or reduce the potential for dispute and uncertainty over the precise limits of the continental shelf. . . . Ultimate responsibility for the delimitation lies with the coastal State itself, subject to safeguards against exaggerated claims.” 31 See Press Release, Commission on Limits of Continental Shelf Receives Its First Submission, Dec. 21, 2001, available at http://www.un.org/New/Press/docs/2001/ sea1729.doc.htm and Commission, Outer limits of the continental shelf beyond 200 nautical miles from the baselines: submissions to the Commission, available at http://www.

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sian Federation submission circulated by the Secretary-General pursuant to Rule of Procedure 4932 contained a list of coordinates for the points identified by Russian as having been used for the construction of its submitted outer limit delineation, some brief explanation of some of the points and maps of the relevant areas.33 Canada,34 Denmark,35 Japan,36 Norway37 and the United States38 all delivered notes verbale to the Commission through the Secretary-General in response to the submission of the Russian Federation. In their notes Canada, Denmark, Japan and Norway raised issues concerning a possible territorial or a maritime dispute existing between itself and the Russian Federation and that any actions of Commission were, pursuant to Article 9 of Annex II of the LOS Convention, to be without prejudice to such disputes and that, pursuant to paragraph 5(a) of Annex I of the Rules of Procedure of the Commission, the Commission was not to examine a submission made concerning the area in dispute.39 un.org/Depts/los/clcs_new/commission_submissions.htm, accessible through the DOALOS home page, supra note 2 and the Commission's home page, supra note 3. 32 See supra accompanying text to note 15. 33 Receipt of the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001.LOS (Continental Shelf Notification), Dec. 20, 2001, available at http://www.un.org/Depts/los/clcs_new/commission_submissions.htm, accessible through the DOALOS home page, supra note 2 and the Commission’s home page, supra note 3. 34 Canada: Notification regarding the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001.LOS/CAN, Feb. 26, 2002, available at supra note 33. 35 Denmark: Notification regarding the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001. LOS/DNK, Feb. 26, 2002, available at supra note 33. 36 Japan: Notification regarding the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001.LOS/JPN, Mar. 14, 2002, available at supra note 33. 37 Norway: Notification regarding the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001.LOS/NOR, Apr. 2, 2002, available at supra note 33. 38 United States: Notification regarding the submission made by the Russian Federation to the Commission on the Limits of the Continental Shelf, Doc. CLCS.01.2001. LOS/USA, Mar. 18, 2002, available at supra note 33. 39 Art. 9, Annex II of the LOS Convention states: The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts. Paragraph 5 of Annex I of the Rules of Procedure, supra note 14, states: (a) In cases where a land or maritime dispute exists, the Commission shall not examine and qualify a submission made by any of the States concerned in the dispute. However, the Commission may examine one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute. (b) The submissions made before the Commission and the recommendations adopted by the Commission thereon shall not prejudice the position of States which are parties to a land or maritime dispute.

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The Canadian and Danish notes verbale are essentially the same both noting the insufficiency of data upon which to comment and noting that any recommendations of the Commission are to be without prejudice to continental shelf delimitation questions between the Russian Federation and Canada or Denmark (Greenland).40 The presumption in both the Canadian and Danish notes is that the coordinates submitted by the Russian Federation for the delineation of the outer limit of the continental shelf in unspecified parts of the Arctic Ocean may or do overlap (and hence create a bilateral delimitation issue) between each state and the Russian Federation. The response of the Russian Federation was that the Canadian and Danish notes verbale “do not contain any indication of the existence of disputes” and do not, therefore, create an obstacle to the submission made by the Russian Federation.41 The Norwegian note, the contents of which were agreed to by the Russian Federation, specifically identifies a continental shelf area beyond 200 nautical miles in the central Barents Sea which is in dispute between Norway and the Russian Federation.42 According to the Norwegian note, one of the points identified in the Russian submission to the Commission is located within the identified area of dispute in the Barents Sea. While noting that the Commission is not to prejudice matters relating to delimitation of the continental shelf between Norway and the Russian Federation, Norway consented to the Commission examining the Russian submission in the Norwegian-Russian disputed area. 43 While the first sentence of paragraph 5(a) of Annex I of the Rules of Procedure indicates that the Commission will not examine a submission made concerning a continental shelf area subject to a dispute, the second sentence provides that the Commission may do so where all states parties to the dispute consent—which is here the case.44 The Japanese note takes issue with the maps attached to the Russian Federation submission to the Commission which indicate the use by the Russian Federation of the islands of Etorofu, Kunashiri, Shikotan and Habomai (the Kuril Islands) as basepoints for the construction of the outer limit of the territorial sea, 40

See Canadian note verbale, supra note 34 and Danish note verbale, supra note 35. Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, made on Mar. 28, 2002, Doc. CLCS/31, Apr. 5, 2002, at 6 available at http://www.un.org/Depts/los/clcs_new/commission/clcs31e.pdf and accessible through the Commission home page, supra note 3. 42 Norwegian note verbale, supra note 37. More generally on the NorwegianRussian Federation dispute in the Barents Sea, see Alex G. Oude Elferink, Arctic Maritime Delimitations: The Preponderance of Similarities with Other Regions, in THE LAW OF THE SEA AND POLAR MARITIME DELIMITATION AND JURISDICTION 185-190 (A.G. Oude Elferink and D.R. Rothwell eds., 2001). 43 Norwegian note verbale, supra note 37. 44 See supra note 39. Concerning the comments of the Russian Federation on the Norwegian note, see Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, supra note 41, at 6. 41

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continental shelf and exclusive economic zone.45 Japan asserts sovereignty over these islands and requests the Commission to take no action which might prejudice the position of Japan. The sovereignty dispute over the Kuril Islands dates back to the Second World War and despite regular discussions has remained unresolved.46 The Japanese note also points out that the non-acknowledgement by the Russian Federation of this well-known sovereignty dispute is inconsistent with the Rule of Procedure 45 and paragraph 2 of Annex I to the Rules of Procedure which indicates that the submitting state is to note the existence of territorial or maritime disputes.47 The Russian Federation asserted that these islands were not used as basepoints and, moreover, that the islands dispute does not affect to submission “in relation to the continental shelf in the Sea of Okhotsk beyond the limits of the 200-mile zone”.48 Subsequently, the Russian Federation “regretted” that the map had been circulated and Japan took the view that its note was designed to highlight a technical matter.49 The U.S. note is different than the other four, in part because of its blunt language—“the submission has major flaws as it relates to the continental shelf claim in the Arctic.”50 Moreover, using several pages the U.S. note raises questions about the possible misuse of ridges (the Alpha-Mendeleev Ridge and the Lomonosov Ridge) in the delineation of the outer limit of the continental shelf by the Russian Federation in the Arctic Ocean and provides information and argument as to why these ridges are not part of any state’s continental shelf. 51 The possible misuse by Russia of ridges in the Arctic for continental shelf claim purposes was an issue of concern for the United States during the negotiations of the LOS Convention.52 The Russian Federation put forth information which 45

Japanese note verbale, supra note 36. See generally DOUGLAS M. JOHNSTON AND MARK J. VALENCIA, PACIFIC OCEAN BOUNDARY PROBLEMS: STATUS AND SOLUTIONS 118-21 (1991). 47 Japanese note verbale, supra note 36. Paragraph 2, Annex I of the Rules of Procedure, supra note 14, states: In case there is a dispute in the delimitation of the continental shelf between opposite or adjacent States, or in other cases of unresolved land or maritime disputes, in relation to the submission, the Commission shall be: (a) Informed of such disputes by the coastal States making the submission; (b) Ensured by the coastal States making the submission to the extent possible that the submission will not prejudice matters relating to the delimitation of boundaries between States. 48 Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, supra note 41, at 6. 49 Report of the Twelfth Meeting of the State Parties, Doc. SPLOS/91, (advanced, unedited), paras. 93, 94, accessible through DOALOS home page, supra note 2, (last visited July1, 2002). 50 United States note verbale, supra note 38. 51 United States note verbale, supra note 38. The issue of ridges, although not the specifics of ridges in the Arctic Ocean, is discussed in Philip A. Symonds et al., Ridge Issues, in Cook and Carleton, supra note 7, at 285-307. 52 See Miles, supra note 5, at 387-88. 46

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leads it to the conclusion that the above two ridges are components of its continental margin.53 Presumably, this is the very issue about which the Commission is called upon to make recommendations. The U.S. note also indicates that states should not be in rush to make submissions to the Commission where scientific and technical issues remain unresolved particularly given that states have until 2009 to do so.54 Some hallway whispering had it that the Russian Federation was in a hurry to make their submission before the Commission turnover in 2002.55 Of the five response notes, three contest either directly or indirectly parts of the outer limit delineation submitted by the Russian Federation to the Commission and seek to provide advice or information to the Commission regarding its task of providing recommendations respecting the submission of the Russian Federation. The Japanese note verbale notes the alleged misrepresentation of disputed islands. The Norwegian note verbale is of a different type and mere states the position of Norway and the Russian Federation regarding the Barents Sea. While the Rules of Procedure require that the submitted location of the outer limit of the continental shelf be circulated, the Rules of Procedure are silent respecting what the Commission or a sub-commission is to do with any responses received as a result of the circulation of the notification of submission. The question of what, if anything, the Commission is to do with the four response notes that contest the submission of the Russian Federation is made more curious since three of the five respondents (Canada, Denmark and the United States) are not parties to the LOS Convention. At the March-April 2002 Commission meeting,56 the Russian Federation’s submission was formally presented to the Commission57 and a sub-commission was created to examine the submission for the purpose of considering the sub-

53

Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, supra note 41, at 5. 54 United States note verbale, supra note 38. 55 The April 2002 elections to the Commission, resulted in the return of 14 of the 21 Commissioners and the addition of seven new Commissioners. See Commission home page, supra note 3. 56 Apparently only 14 of the 21 Commissioners were present and there were problems establishing the necessary quorum. See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Apr. 12, 2002, at paras. 2, 4, Doc. CLCS/32, available at http://www.un.org/Depts/los/ clcs_new/commission/clcs32e.pdf and accessible through the Commission home page, supra note 3 and the DOALOS home page, supra note 2. 57 Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, supra note 41; Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, supra note 56, at para. 10.

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mitted data and making recommendations.58 Before the creation of the subcommission, the Russian Federation was invited by the Chair [of the Commission] to state the position of his Government regarding the communications . . . by Canada, Denmark, Japan, Norway and the United States. . . . [The spokesperson for the Russian Federation] stated that the Russian Federation did not regard any of those communications as an impediment to the consideration of the submission.59

Thereafter, the sub-commission proceeded to analyze the information presented by and engage in discussions with the Russian Federation.60 The Commission was and is in a delicate position. The Rules of Procedure of the Commission, although not the LOS Convention, directs that it is the submitting state that is to inform the Commission of any territorial or maritime disputes relevant to its submitted outer limit information. The Russian Federation indicated that it does not perceive the comments of Canada, Denmark and Japan as raising an issue of a territorial or maritime dispute which would be obstacle to the Commission proceeding. Two points can be made. First, reliance on a submitting state to self-identify territorial or maritime disputes places the submitting state in the position of having to acknowledge the existence of a dispute which might be seen as having the consequence of undermining its legal claim to the territory or maritime area.61 Inevitably, a submitting state is going to deny the existence of a dispute, particularly if what is involved is a dispute over territory, which renders the self-identification approach inconsistent with legal and political realities. The Commission appears to be acknowledging this conundrum with a de facto procedure of receiving notes verbale from states with an interest in a submission and bringing them to the attention of the submitting state.62 Second, as pointed out in the Danish note, Denmark is still collecting the necessary data to make a detailed continental shelf claim beyond 200 nautical miles and until that process is finished it is not possible to evaluate the impact of the submission made by the Russian Federation.63 Thus, while the Russian Federation commented that no specific dispute was identified by Denmark, this is a bit disingenuous. The Commission and sub-commission would appear to be in the posi58 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, supra note 56, at para. 20. 59 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, supra note 56, at para. 10. See also Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, supra note 4, at 6. 60 See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, supra note 56, at paras. 20, 30-35. 61 The lawyer’s handy tool, the “without prejudice” phraseology, would have solved such a concern. 62 See supra note 15. 63 Danish note verbale, supra note 35.

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tion of having to guess in an educated manner where the Danish claim might be and therefore exclude that part of the Russian Federation submission from its examination as required in paragraph 5(a) of Annex I of the Rules of Procedure. None of the notes verbale argued explicitly that the Commission could not proceed with consideration of the submission by the Russian Federation. Moreover, it can be argued that the Commission’s Rules of Procedure left the Commission little choice but to proceed when the Russian Federation took the view that none of the note verbales raised obstacles. Nevertheless, it is clear that the Commission could have opted not to proceed with the submission of the Russian Federation in whole or in part since, based solely on the information submitted by the Japanese and as required by the Commission’s Rules of Procedure, the submission of the Russian Federation did not acknowledge a notorious territorial dispute. The Commission could (and perhaps should) have decided not to proceed with the Russian Federation submission until the Commission would not be in a position of having to guess which areas of the submission could not be dealt with because of territorial or maritime disputes. Such an approach would have been consistent with the wording of the LOS Convention and the Rules of Procedure. Had the Commission informed the Russian Federation that it could not proceed until assurances existed both from the submitting state and other states that no disputes existed respecting the outer limit submission, it would have forced the Russian Federation to negotiate with Canada, Denmark and Japan concerning their territorial and maritime disputes. The result might have been boundary agreements or, as in the case with Norway, a clear articulation of the area in dispute. Perhaps more importantly, putting the onus on the Russian Federation (or any submitting state) to satisfy the Commission that the submission is free from dispute would avoid the Commission having to engage in guessing what areas are subject to disputed claims. Short of this decision not to proceed, faced with the failure of the Russian Federation to acknowledge the well-known dispute respecting the Kuril Islands and the uncertainty raised by the Danish note verbale, it would have been prudent for the Commission to have sought either legal advice from the SecretaryGeneral or direction from the state parties to the LOS Convention64 as to how and whether to proceed in the face of such a delinquency and on issues of such delicacy. The Commission could also have sought assistance concerning how to deal with information regarding maritime disputes raised by non-parties to the LOS Convention. The Commission chose to proceed with the Russian Federation submission apparently with little regard to the above concerns and most certainly without giving comfort to the Japanese, the Danes or the Canadians that any part of the submission by the Russian Federation would not be examined and, more generally, without indication of what would become of any of the communications received from Canada, Denmark, Japan or the United States. 64

This was done regarding the question of when the ten years for submission was to commence. See supra note 10.

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Perhaps an over-abundance of admirable zeal to contribute and be busy has resulted in the Commission missing an opportunity to clarify and even enhance its role in the delineation of the outer limit of the continental shelf process. By choosing the path it has regarding territorial and maritime disputes, issues of utmost importance to states, the Commission has wrong stepped at a crucial point in its youthful life.

CHAPTER 21

The Changeable Legal Status of Islands and “Non-Islands” in the Law of the Sea: Some Instances in the Asia-Pacific Region Choon-Ho Park

I. Introduction The United Nations Law of the Sea Convention of 1982 (hereinafter “the Convention”), defines an island in Art. 121 (1) as “ . . . a naturally formed area of land, surrounded by water, which is above water at high tide.”1 By this definition, it takes four elements, namely, 1) “naturally formed,” 2) “land,” 3) “surrounded by water,” and 4) “above water at high tide,” for a natural formation to qualify as an island in legal terms.2 However, this definition is less 1

Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, 1983, U.N. sales no. E. 83. V. 5. 2 A legislative history of the provisions relating to islands is given in U.N. OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, THE LAW OF THE SEA: REGIME OF ISLANDS: LEGISLATIVE HISTORY OF PART III (ARTICLE 121) OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (1988). For commentaries in detail, see e.g. Clive Symmons, Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, 1 MARITIME BRIEFING, No. 5, International Boundaries Research Unit, University of Durham (1995); John Briscoe, Islands in Maritime Boundary Delimitation, 7 OCEAN YEARBOOK 14-41(1988); and M. 483 D. D. Caron and H. N. Scheiber (eds.), Bringing New Law to Ocean Waters, 483-91. © 2004. Koninklijke Brill N.V. Printed in the Netherlands.

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straightforward than it appears, because it does not contemplate the possibility that the same “naturally formed area of land surrounded by water” may gain or lose the fourth necessary element of island status due to changes in elevation of either the land mass or the water level. This paper will draw on examples of this phenomenon in Asia to discuss how such changes may occur and how the Convention might be amended to address their legal effects. In the context of the present paper, there is no need to consider the legal status of a natural formation which satisfies the above definition on a permanent basis. A possible shift of legal status from “non-island” (hereinafter “non-island”) to island may result from such natural phenomena as the growth of submerged coral islands3 and the emergence of new islands from submarine volcanic eruptions.4 Conversely, a possible shift of status from island to non-island may result, for example, from climate change—the subject of global concern in recent decades. With global warming on the increase and the resultant sea-level rise throughout the world, it is possible or even probable that an island can be submerged below high tide to lose its legal status as an island. Serious examples are found in the Pacific and other regions, where some small island states have been reportedly exposed to the danger of such submersion.5 A submarine eruption, already noted as a mechanism by which a non-island may become an island, is a double-edged phenomenon which can also cause an existing island to lose its legal status by submerging it below high tide.6 In addition, some instances of artificial efforts to prevent a shift in status from island to non-island, such as reinforcement of a submerged natural formation,7 are referred to here merely as a possible source of controversy over the legal status of an island between states concerned.

Habibur Rahman, The Impact of the Law of the Sea convention on the Regime of Islands: Problems for the Coastal State in Asserting Claims to ‘New-born’ Islands in Maritime Zones, 34 INT’L & COMP. L. Q. 368-76 (1985). 3 For an example of the growth of coral reefs from non-islands to eventual islands, see e.g., CHOON-HO PARK, EAST ASIA AND THE LAW OF THE SEA, 203, 255 (1983). On the negative effects on coral reef growth from submarine human activities, see e.g., Ship & Ocean Newsletter, Oct. 5, 2000; Environment News Service [Lycos], “World’s 10 Richest Reefs Hammered by Humans,” April 1, 2002; Mark D. Spalding et al, WORLD ATLAS OF CORAL REEFS, UNEP/WCMC, 2002; and Gregor Hodgson and Jennifer Liebeler, THE GLOBAL REEF CRISIS: TRENDS AND SOLUTIONS (Reef Check, Institute of Environment, University of California, Los Angeles, 2002). On the need for protection of low-lying atolls, see eg., FREEDOM FOR THE SEAS IN THE 21ST CENTURY: OCEAN GOVERNANCE AND ENVIRONMENTAL HARMONY 214-27 (Jon M. Van Dyke et al, eds., 1993). 4 For a specialized study, see e.g., PATRICK D. NUNN, OCEANIC ISLANDS 65-111 (1994). 5 For a comprehensive recent study, see e.g., SPECIAL REPORT ON THE REGIONAL IMPACTS OF CLIMATE CHANGE: AN ASSESSMENT OF VULNERABILITY, UNEP/WCMC Intergovernmental Panel on Climate Change (IPCC) (Nov. 1997), in which Chapter 9 deals with problems of small island states. 6 See NUNN, supra note 4. 7 For a discussion of Japan’s Okino-Torishima and Minami-Torishima, see e.g., Asahi Shinbun, Oct. 22, 1995; Nikkei Shinbun, June 18, 1999, morn. ed.; Hankook Ilbo, Sept. 3, 1999; and Ship & Ocean News, Oct. 5, 2000.

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Aside from the effect of a natural phenomenon or artificial effort whereby the legal status of an island is changed from an island to a non-island or vice versa, serious disputes have also taken place over the legal status of some natural formations which fail to meet the Convention’s Article 121(1) definition to the satisfaction of the parties involved. The Dinkum Sands Case (US v. Alaska)8 and the Maritime Delimitation and Territorial Questions Case (Qatar v. Bahrain)9 are typical instances. With regard to the Dinkum Sands Case, it must be pointed out that, although it was formally argued between the United States and the State of Alaska, in substance it has enriched the law of the sea scholarship on the legal status of islands to a degree that few other previous island cases have. In the piles of documents and opinions presented by both sides, one may find an almost exhaustive study of what should have already been done with regard to the points at issue. Finally, reference is also made to the novel and seemingly unlikely discovery of hitherto unknown islands, which would require the finder state to adjust its maritime jurisdiction accordingly.10 Against the foregoing background, this paper concludes with an indication of the need for the Convention to accommodate the situations that were not foreseen or were knowingly or unknowingly ignored during the long period of its making.

II. Possible Shifts of Legal Status A. From a Non-Island to an Island A submerged coral formation is not an island as defined in the Convention until it grows upward to emerge above high tide. Of the four archipelagos in the South China Sea, for example, the Macclesfield Bank (Zhongsha Qundao), 8

Clive Symmons, When is an ‘Island’ Not an ‘Island’ in International Law?:The Riddle of Dinkum Sands in the Case of U.S. v. Alaska, 2 MARITIME BRIEFING, No. 6, International Boundaries Research Unit, University of Durham (1999) ; MICHAEL W. REED, 3 SHORE AND SEA BOUNDARIES 133-40 and 204-11 (2000), and the documents on the case of U.S. v. Alaska, including (1) the Report of the Special Master of the United States Supreme Court in the Submerged Lands Cases 1949-1987, with commentary by Michael W. Reed, G. Thomas Koester, John Briscoe, 1991, and (2) No. 84, Original, In the Supreme Court of the United States, October Term, 1995, United States of America, Plaintiff v. State of Alaska, On the Report of the Special Master, Exceptions of the State of Alaska and Supporting Brief, Bruce M. Botelho, J. M. Grace. G. T. Koester, John Briscoe. 9 International Court of Justice, Judgment, March 16, 2001, in the Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits), paras. 149-65 and 188-209, and Judge Oda’s Separate Opinion on low-tide elevations and islands, paras. 6-9. For a summary of the Judgment, see e.g., the Court’s Press Release 2001/9. 10 Information on Denmark’s newly discovered Tobias Island off the east coast of Greenland, including cartographic illustrations and press reports, provided by the Danish Foreign Ministry, is in the possession of the author.

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consisting of some 30 submerged coral outcroppings of different heights and sizes, was traditionally assumed to belong to China and formally claimed in 1958 when the People’s Republic proclaimed its 12-mile territorial-sea law for the first time.11 The highest formation, said to be about 10 meters below the surface, was once reported to be growing upward by approximately 10 centimeters a year. It would then take nearly a century for it to reach the surface.12 Aside from the claims China has formally staked out since 1958, the Macclesfield Bank is novel in both geographical and international legal terms and will likely eventually represent a rare instance of legal status shift from non-islands to islands. More familiar, a typical instance of in which an island is formed by a submarine eruption can be seen in the emergence of Surtsey Island off the southern coast of Iceland in 1963.13 The earlier eruptions here are said to have gone unnoticed, because they had taken place over 130 meters below the surface.

B. From an Island to a Non-Island The 37 members of the Alliance of Small Island States (AOSIS), all members of the United Nations, are mostly concentrated in the four tropical regions, namely, the central Pacific, the Indian Ocean, the Caribbean Sea and the Atlantic Ocean off the west African coast. Some of them are known to be particularly vulnerable to sea-level rise from climate change, among them Kiribati, Maldives, Marshall Islands, Nauru, Tonga, Tuvalu and a few others.14 Tuvalu’s exceptionally vulnerability is evident in two press articles, one of which begins, “The tiny island nation…has asked New Zealand and Australia to provide shelter for its 11,000 people, as rising sea levels threaten to engulf their homes”15 and the other of which is headlined, “Time runs out for an ocean gem.”16 11 The Territorial Sea Law of the People’s Republic of China proclaimed in 1958 has been superseded by the new Territorial Sea and Contiguous Zone Law of Feb. 25, 1992, in which Art. 2 specifically defines the Chinese territory, including the Macclesfield Bank. For one of the first and most accurate works on the geographical circumstances of the South China Sea archipelagos, see e.g., NANHAI ZHUDAO DILIZHELUE (Zheng Siyue, ed., 1948, Chinese Ministry of Foreign Affairs) (a summarized geography of the South Sea islands) This book not only describes each of the four archipelagos in detail, but also gives the names of the Chinese naval officers and the foreign explorers and cartographers after whom, and the names of the Chinese warships they commanded after which, many islands and reefs were named, as well as the dates of their expeditions. 12 See Park, supra note 3, at 255 and Zheng, supra note 11, at 37-39. 13 See NUNN, supra note 4, at 88-92. 14 IPPC Special Report, supra note 6, Chapter 9; and David D. Caron, When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of Rising Sea Level, 17 ECOLOGY L. Q. 621-53. (1990). For an examination of the baseline provisions of the Convention, see e.g., THE LAW OF THE SEA: BASELINES: AN EXAMINATION OF THE RELEVANT PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (Office for Ocean Affairs and the Law of the Sea, The United Nations, 1989). 15 Associated Press, Sydney, printed in INTERNATIONAL HERALD TRIBUNE, July 2122, 2001. 16 Andrew Simms, FINANCIAL TIMES, Feb. 2, 2002.

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If an island that is a sovereign state or a part of one, were totally submerged by the rising of sea-level and hence ceased to be an island as such, the maritime jurisdiction of the state would have to be adjusted in accordance with the unforeseen new situation. If the submersion of an island takes place over a long period of time, or if submersion only changes the configuration of the coastline significantly from that used by the coastal state in drawing its original baseline, however, it is conceivable that problems relating to the legal status of the island so submerged or otherwise so affected adversely would be more serious than in the case of a rapid or total submersion. In this regard, the Convention provides: Art. 7 (2) Where because of the presence of a delta or other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention. (Emphasis added)

What matters here, therefore, would be the length of time over which the submersion takes place, not the natural phenomenon of regression itself.

C. Alternating Shifts of Status From the standpoint of an island’s legal status, a change in status from an island to a non-island or vice versa would necessarily create serious problems both for the coastal state itself and in potential disputes with other states whose interests are affected by such a shift. But alternating shifts of status would give rise to far more complicated internal and external problems, especially if the shifts took place at irregular and short intervals, as in the following instances: N The island of Kavachi in the Solomon Islands provides an extreme example. It has been reported to have appeared on, and disappeared from, the surface of the sea no less than eight times since 1950, with each appearance lasting only a few days.17 N With a chain of volcanic islands stretching over 1,700 kilometers due south from Tokyo, Japan has also had unusual experiences some of which were tragic and others even amusing. On September 17, 1952, for example, the Japanese fishing vessel, Myojin-maru No. 11, spotted a new “island” apparently born of a submarine eruption. A week later, a research vessel from the Japanese Maritime Safety Agency, which had been dispatched to the scene, was blown up by another eruption, killing all of the 31-member crew. Named “Myojin” after the fishing vessel, the newly-discovered “territory,” approximately 94 meters above sea level, 230 meters long and 160 meters wide, eroded back into the sea following a few more eruptions shortly afterward.18

17 18

See NUNN, supra note 4, at 85. ASAHI SHINBUN, evening ed., Sept. 16, 1988.

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N

It has also been reported occasionally that Japanese military or other government vessels and other states have posted watches to claim ownership of what they believed to be emerging islands at the sight of submarines bumps emerging in the southern part of the Japanese volcanic chain.19 N Underwater eruptions are also common in the Kingdom of Tonga. One of the best known is Fonuafo’ou or Falcon Island, which has been up and down several times since 1865, when it was first spotted by the British H. M. S. Falcon. In June, 1979, an even more dramatic emergence of a fairly big “island” was reported between Kao and Late in the island chain.20 Mainly due to their physical impermanence, the legal status of these and other similar natural formations has not been sufficiently considered to date from the standpoint of the law of the sea. As may be seen from the experience of the Third United Nations Conference on the Law of the Sea of 1973-1982 (UNCLOS III), the highly complicated geographical circumstances of islands throughout the world make it difficult for an international forum to agree on such issues in more specific terms than in UNCLOS III. Full consideration might perhaps take another law of the sea conference on a universal scale.

III. Artificial Efforts for to Cause Shift of Status Given full effect as a basepoint for the measurement of an exclusive economic zone (hereinafter “EEZ”) up to 200 nautical miles as provided for in the Convention (Art. 57), even an uninhabited small mid-ocean island without significant economic merits of its own would entitle the owner-state to claim approximately 430,000 square kilometers of the high seas surrounding it as its own EEZ. Among the numerous uninhabited Japanese islands and rocks, OkinoTorishima and Minami-Torishima in the north Pacific are such mid-ocean rocks situated far beyond 400 nautical miles from the nearest island or continent. With full effect as a basepoint, each of them would entitle Japan to claim a high seas area of 430,000 square kilometers, which is much larger than its own land territory of 370,000 square kilometers. Aware of the instability of these two rocks, Japan has reinforced them to enhance their legal status as islands. With regard to their legal status as basepoints, however, these mid-ocean “fly-specks” have not yet been a cause for concern among other Pacific states to date, since their ownership is not contested and no maritime boundary issues exist in the area. In this regard, it should be noted that, in April 2004, China made it clear to Japan that being only a rock, Okino-Torishima does not entitle Japan to claim its EEZ around it.21 19

ASAHI SHINBUN, evening ed., Nov. 11, 1992. See NUNN, supra note 4, at 85-86; and Symmons, supra note 8, at 11, fn 88. 21 See e.g., press reports, supra note 8. For the geographical circumstances of Minami-Torishima (another, smaller island of this name is situated in the south Ogasawara volcanic chain 640 nautical miles west of this one), see e.g., Kaijou Hoanchou (Maritme 20

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In the northern East China Sea between China and Korea, there is a submerged rock (about 4.5 meters below sea level; called Suyan in Chinese, Socotra Rock in English, Parang-do or Yi-o-do in Korean) situated on the Korean side of what would be the median- line between China and Korea. (The two states have yet to agree on their boundary here.). South Korea has made plans to reinforce it so that it will become an artificial island.22 Even if reinforced, however, such an artificial island would not acquire a territorial status. Article 60 of the Convention would only entitle the state that reinforced it to exclusive jurisdiction over it. South Korea’s immediate purpose in reinforcing this submerged rock is less to seek territorial status than to provide a base for traffic safety, oceanographic research, and environmental facilities or other non-territorial activities. For the native residents and fishermen of Cheju-do, the nearest Korean island, the underwater rock has long been memorialized in their folklore as a sinister obstacle, so that they would welcome its reinforcement.23 China’s intentions toward the Macclesfield Bank have been less clear, and it is unknown whether China will seek to reinforce the coral reefs or allow them to grow at their own pace. It may very well be that the territorial claims China has staked out to the submarine archipelago are regarded as sufficient to protect its national interests. From the standpoint of the law of the sea, however, it still remains to be seen how China will justify its claims to the ownership of what is still underwater. Among these three northeast Asian neighbors, however, the legal status of uninhabited small offshore islands and rocks has been extremely controversial for decades because of the serious territorial interests and natural resources that each state believes it would gain from ownership. In fact, because of the territorial disputes, among them including the Senkaku-Diaoyutai dispute between China and Japan and the Dokodo-Takeshima dispute between Japan and Korea, bilateral and trilateral boundary delimitations of the 200-mile EEZ in this region have yet to be agreed on, although such demarcations were completed in most other regions of the world over 20 years ago.

Safety Agency), Honshu Nan-Tou-Gan Suiroshi (hydrography of east and south Honshu), Doc. no. 101, Mar. 1996, pp. 289-91. The cluster of coral reefs has been reinforced with a weather station and other facilities, including an airstrip. However, it is still questionable whether, without basic needs for human habitation such as drinking water and an economic life of its own, such facilities alone would qualify this island as a full-effect basepoint under Art. 121(3) of the Convention. In the case of China, two (points 12 and 13) of its basepoints in the northern East China Sea are tiny barren rocks, which South Korea ignored in its unilateral delimitation of its continental shelf in 1970. South Korea has reinforced for various purposes the Tokdo Island (called Takeshima in Japan and under sovereignty dispute with Japan since 1952), but does not as yet regard Art. 121(3) applicable to it as a basepoint. Inevitably, Art. 121(3) lacks precision, hence a cause for elastic interpretations by coastal states. In this regard, United Kingdom's Rockall is a notable example. It was used as a basepoint for UK's 200-n.m. fishery zone in 1976 (Fishery Limits Act 1976), but, on accession to the Convention in 1997, UK abandoned it as a basepoint for its 200-n.m. Economic Zone (Fishery Limits Order 1997). 22 Dong-A Ilbo, May 23, 1997. 23 Id.

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IV. Discovery of Islands In northeast Asia, it is unlikely for a hitherto unknown island to be newly discovered, and the probability is only slightly higher for most of the Pacific Ocean. However, because Northeast Asian states have been grappling with legal problems of islands over decades, reference is made here to this possibility as another potential source of controversy relating to the legal status of islands in general. In November, 1999, Danish scientists spotted a cluster of what appeared to be six small islands about 75 kilometers off the east coast of Greenland. The formation turned out to be a single island, 35 meters above sea level and 2,000 meters long, with six natural elevations on it. Denmark has tentatively named it “Tobias Island” after a Greenlandic member of a 1906-1908 expedition team, not after a dog that accompanied the team as some press reports say, and would now expand its maritime jurisdiction based on the legal status to be given the new find.24 In other regions as well, future discovery of islands may be possible, although not very probable, except perhaps from submarine volcanic eruptions in some Pacific areas. Nonetheless, depending on the size and location of what has been discovered, the discovery of a new island can be a cause for legal controversy between the states concerned.

V. Concluding Remarks The United Nations can pride itself on what it has done for the development of the law of the sea since 1967, when, at the General Assembly, the late Maltese Ambassador Arvid Pardo renewed the interest of the community of nations in the need for international ocean development. The legislative efforts of the U.N. finally culminated in the signing of the Convention on the Law of the Sea in December 1982, supplemented by two subsequent additional agreements. Ratified by 145 states and other entities to date, the Convention as a whole has become a basic reference on the use of the sea and its resources. Because of the geographical circumstances of islands throughout the world, however, UNCLOS III, which could not agree on all the major points placed before it, could not reach resolution on all matters relating to the legal status of islands. Inevitably, the pressure of interest groups was also strongly operative in the process of negotiations, making agreement on some issues even more difficult. Hence, in the interest of agreement, some ambiguities had to be knowingly allowed in the Convention. As it relates to the legal status of islands, the Convention has left “some stones unturned” or “some turns unstoned.” For instance, it does not provide sufficiently for situations in which the legal status of islands is changed by natural phenomena or artificial efforts. In fact, an observer comments “. . . that

24

See e.g., documents and press reports, supra note 10.

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the LOS Convention fails to decide the status of a new-born island which has surfaced beyond the territorial sea.”25 What has been left undone should now be done through amendment of the provisions in need of amendment, including those relating to possible changes in the legal status of islands resulting from natural phenomena or artificial efforts. A key point at issue here is the factor of time it takes for an island to undergo a physical change. For example, Article. 7 (2) of the Convention is known to be based on the particular circumstances of the Ganges delta.26 Another is the degree of advance or regression of the low-water line at which the change can be legally effected. On both counts, agreement will not be easy, if not impossible. In light of the changing circumstances unforeseen at the time the Convention was adopted, any supplement to the existing provisions of the Convention relating to the legal status of islands is a lex ferenda to be formalized by amendment of the relevant provisions in question.

25

See Rahman, supra note 2, at 373. This argument is extended also to the numerous other submarine natural formations by S. K. Eaton, Jr. and Janet Judy, Seamounts and Guyots: A Unique Resource: The Necessity for Express Recognition in the Formulation of an International Regime of the Seabed, 10 SAN DIEGO LAW REVIEW 599-637 (1973). 26 See 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY 101 fn 8 (Satya Nandan and Shabtai Rosenne eds., Center for Oceans Law and Policy, University of Virginia, 1993).

Contributors Damir Arnaut is an Attorney-Adviser with the Office of the Legal Adviser, U.S. Department of State. He was awarded the M.A. in political science at the University of California, Berkeley, and the J.D. degree from the Boalt Hall School of Law, also UC Berkeley. He has served as editor of the Berkeley Journal of International Law and as a director of that journal’s Stefan A. Riesenfeld Symposium. Daniel Bodansky is the Emily and Ernest Woodruff Profesor of International Law, University of Georgia. A graduate of Yale Law School, he was a senior negotiator on climate change during 1991-2001 for the U.S. Department of State, where earlier he was an attorney-adviser. He has written widely on the law of international relations, public international law, and environmental law. David D. Caron is the C. William Maxeiner Distinguished Professor of International Law, Boalt Hall School of Law, University of California at Berkeley, and Codirector of the Law of the Sea Institute. A graduate of the U.S. Coast Guard Academy, he received his law degree from the UC Berkeley. He studied Marine Law & Policy at the University of Wales as a Fulbright Scholar, was awarded the Diploma of the Hague Academy of International Law, and did his doctoral work at Leiden University. He is a member of the U.S. Department of State Advisory Committee on International Law and the Board of Editors of the American Journal of International Law. He is the co-author of The UNCITRAL Arbitration Rules and co-editor of The International Aspects of Natural and Industrial Catastrophes in 2001. From 1996 to 2003, he served as commissioner with the Precedent Panel (E2) of the United Nations Compensation Commission in Geneva resolving claims arising out of the 1990 Gulf War.

493

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Contributors

Christopher J. Carr is an attorney in the firm of Stoel Rives, San Francisco. He holds the J.D. and Ph.D. degrees from the University of California, Berkeley, and has published articles in the Ecology Law Quarterly and other journals on fisheries management policies in relation to both U.S. and international law; and on the legal and operational questions associated with monitoring and surveillance of marine fishing activities. His doctoral dissertation at UC Berkeley (2004) is a history of U.S. policy and the Highly Migratory Species issue in modern development of Law of the Sea. &DUORV (VSVLWR is Legal Advisor, International Law Department, Ministry of Foreign Affairs, Spain and Professor of International Law, Autonomous University of Madrid. He has been visiting professor of international law at the Boalt Hall, School of Law, UC Berkeley, and conducted seminars and lectures in numerous universities in Europe and Latin America. His book La jurisdicción consultiva de la Corte Internacional de Justicia was published in 1996. Cristina Fraile is currently Deputy Head of Mission for the Spanish Embassy in New Delhi, India. A career diplomat since 1990, she has held diplomatic assignments in Senegal, Brazil, and Vienna; more recently she was Counsellor and then Deputy Head of the International Law Department, Spanish Ministry of Foreign Affairs, in that capacity participating for Spain in the negotiations for the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Erik Franckx is Director of the Center for International Law at the Vrjie Universitiet Brussel, where he took the Ph.D. degree, and has written extensively in leading journals internationally on ocean law issues. He has been a consultant on ocean law and other issues to Belgian, European national and supranational, and international bodies, and has recently served as rapporteur for an International Law Association commission on coastal jurisdiction and marine pollution. He is author of the FAO study Fisheries Enforcement: Related Legal and Institutional Issues: National, Subregional or Regional Perspectives (2001). Lakshman Guruswamy is Professor of Law, University of Colorado at Boulder. He holds the doctorate from the University of Durham, and is author, editor, or co-author of numerous publications on a wide range of international environmental issues. The second edition of his book (with Burns Weston), Environmental Law and World Order, was published in 1999. Moritaka Hayashi is Professor of International Law in Waseda University. He was for nearly two decades a United Nations official, culminating with his service as Assistant Director-General (and head of the Fisheries Department) for the Food and Agriculture Organization in Rome, taking a leading role in bringing global attention to the problem of IUU (illegal, unregistered, unreported) fishing on ocean waters. He is author of collected cases and materials on law of the sea, and he has contributed to numerous books and journals in the field of ocean law and policy. He appeared for Japan as an advocate in 1999 in the Southern Bluefin Case in the International Tribunal for the Law of the Sea

Contributors

495

Lawrence Juda is Professor of Marine Affairs and of Political Science in the University of Rhode Island. His widely cited book International Law and Ocean Use Management: The Evolution of Ocean Governance appeared in 1996, and he has published, in Marine Policy, Ocean Development and International Law, and other leading journals, on many aspects of ocean affairs, including the theory of large marine ecosystems, the Straddling Stocks Convention, ecosystem management, and national laws governing ocean uses in the exclusive economic zones. He is a doctoral graduate of Columbia University. Ted L. McDorman is Professor of Law, University of Victoria (British Columbia), and currently editor-in-chief of the journal Ocean Development and International Law. His newest book, International Ocean Law: Materials and Commentaries, is scheduled to be published in 2004. A law graduate of Dalhousie University, he has engaged in research and teaching on human rights law and international law in Asia as well on ocean law. Richard J. McLaughlin is Professor of Law, University of Mississippi School of Law. A graduate in law of Tulane University and of the University of Washington, he holds the J.S.D. degree from Boalt Hall School of Law, UC Berkeley. He is author of articles in the Ecology Law Quarterly and other journals on the protection of endangered species, on adjudication of trade disputes involving marine environmental interests, and on issues in U.S. domestic coastal-management law. Bernard H. Oxman is Professor of Law and Director of the Master of Laws in Ocean and Coastal Law Program, University of Miami; and he is a member of the international advisory board of the Law of the Sea Institute at UC Berkeley. A graduate of Columbia Law School, he is co-editor in chief of the American Journal of International Law, and a member of the American Law Institute and the Council on Foreign Relations. Before joining the Miami faculty in 1977, he was Assistant Legal Adviser for Oceans, Environment, and Scientific Affairs of the U.S. Department of State. He also served as the U.S. Representative to the Third United Nations Conference on the Law of the Sea and chaired the English Language Group of the Conference Drafting Committee. He has been an appointed sole arbitrator in international commercial cases and recently served as Judge ad hoc on the International Tribunal for the Law of the Sea. Prof. Oxman has published numerous books and articles on the law of the sea and other international law subjects. Long active in the Law of the Sea Institute, he is co-editor of the LOSI 17th proceedings volume, The U.N. Convention on the Law of the Sea (1984), carrying papers from the Institute’s 1983 Oslo conference. Choon-Ho Park is Judge of the International Tribunal for the Law of the Sea; and he also holds appointments as Distinguished Professor of International Law, Korea University; and Professor of International Law, Seinan Gakuin University, Japan. Judge Park is a graduate of Seoul National University and earned the Ph.D. from the University of Edinburgh, and in 1998 he received an honorary doctorate from that university. He is a member of the Institut de Droit Interna-

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Contributors

tional, and in 1989 he was awarded the Distinguished Scholarship Award (Social Science) by the Republic of Korea Academy of Sciences. He represented the Republic of Korea and the International Law Association in the Third U.N. Conference on the Law of the Sea, and the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea. His publications include Korea and the Law of the Sea (1979); East Asia and the Law of the Sea (1983); many contributions as volume editor and author for Law of the Sea Institute publications; and numerous articles and book chapters on Chinese law, energy law, and Law of the Sea. Judge Park is a member of the international advisory board of the Law of the Sea Institute at UC Berkeley. Harry N. Scheiber is the Stefan A. Riesenfeld Profesor of Law and History, Boalt Hall School of Law, University of California at Berkeley, Codirector of the Law of the Sea Institute, and Director of the Earl Warren Institute. He received the Ph.D. in economic history from Cornell University, and in 1998 he was awarded the D.Jur.(hon.c.) from Uppsala University He is a fellow of the American Academy of Arts and Sciences, and is life fellow of the American Society for Legal History (and currently the Society’s president), and has twice held Guggenheim Fellowships. He has written in American legal history as well as on the history of ocean law and science, Pacific fisheries development, and Japanese-U.S. relations in ocean law. His latest books are Inter-Allied Conflicts and Ocean Law, 1945-53: The Occupation Command’s Revival of Japanese Whaling and Marine Fisheries (2001); The Law of the Sea: The Common Heritage and Emerging Challenges (ed. 2000); and The State and Freedom of Contract (ed. 1998). Yann-huei Song is Research Fellow and Deputy Director of the Institute of European and American Studies, Academia Sinica, Taiwan. He holds advanced degrees in political science from Kent State University and in law from UC Berkeley’s Boalt Hall School of Law. He has written widely in the academic and policy journals on international ocean relations and Law of the Sea, jurisdictional claims in the South China Sea, regulation of driftnet fishing in the Pacific, American oceans policy process, and both security and fisheries issues in relation to Taiwan policies. He is author of a chapter in The Law of the Sea: The Common Heritage and Emerging Challenges (ed. H. Scheiber, 2000); and recently he has published The United States and Territorial Disputes in the South China Sea (Maryland Series in Contemporary Asian Studies, 2002). Hugo Tiberg is Professor in the Department of Law, and director of the Institute of Maritime Law, in Stockholm University, Sweden, and has long been distinguished as a leading Swedish scholarly commentator on international maritime affairs and ocean law. He has written and taught on shipping and navigation, on maritime insurance, and on Law of the Sea; and his studies of maritime boundaries and other major issues in ocean law have appeared in book chapters and leading journals on both sides of the Atlantic. Among his most recent books are The Law of Demurrage (4th edition, 1997); and, as co-author, Swedish Law: A Survey (1994).

Contributors

497

Tullio Treves is Judge of the International Tribunal for the Law of the Sea and Professor of Law, University of Milano; and he is a member of the international advisory board of the Law of the Sea Institute at UC Berkeley. He holds the doctorate in law from University of Milan, and he has been a visiting professor on the law faculties at Boalt Hall School of Law at UC Berkeley, the University Paris, the Geneva Institute for Advanced International Studies, the Hague Institute for International Law, and other universities and research institutions. Judge Treves served as a member of the Italian delegations on numerous special commissions and committees of the United Nations that have dealt with human rights law and ocean law matters (1973-95). He also was Legal Advisor to the Permanent Delegation of Italy to the United Nations in New York from 1984 to 1992; and he served as counsel for France in a major arbitral case concerning delimitation of marine boundaries (1991), and also as counsel for Finland in the Passage Through the Great Belt case before the International Court of Justice in 1992-93. He is an Associate Member of the Institute de Droit International. His most recent books include Il dirrito del mare e l’Italia (1995); The Law of the Sea, the European Union, and Its Member States (1997); and Le controversie internationale, nuova tendenze, nuovi tribulani (1999). Jon M. Van Dyke is Professor of Law, William S. Richardson School of Law, University of Hawai’i at Manoa, where he has also served as associate dean and as director of the Matsunaga Institute of Peace. A graduate of the Harvard Law School, he is author or editor of eight books and many articles in constitutional law, environmental law, and international law. He has also litigated in both constitutional and human rights law, and he is a member of the international advisory board of the Law of the Sea Institute at UC Berkeley. His works include Freedom of the Seas for the 21st Century (ed., 1993), Sharing the Resources of the South China Sea (1997) and the lead chapter in The Law of the Sea: The Common Heritage and Emerging Challenges (ed. H. Scheiber, 2000). Davor Vidas is Director of the Marine Affairs and Law of the Sea Program, and Senior Research Fellow, at the Fridtjof Nansen Institute, Norway. Previously he headed the Institute’s Polar Program, and he has been a member/adviser to the Norwegian delegation to Antarctic Treaty meetings and to meetings of the Commission for the Conservation of Antarctic Marine Living Resources. His publications address Law of the Sea issues, environmental law, and Antarctic and Arctic affairs. As author of editor, his books include Protecting the Marine Environment (2000), Implementing the Environmental Protection Regime for the Antarctic (2000); and, with co-editor Willy Østreng, Order for the Oceans at the Turn of the Century (1999). John G. White is currently a litigation associate at the San Francisco office of Covington & Burling. He received his J.D. from the Boalt Hall School of Law, UC Berkeley, in 2002. Prior to entering law school, he served as an officer in the United States Coast Guard at duty stations in Washington, D.C., and Alameda, California.

Publications on Ocean Development 1.

R.P. Anand: Legal Regime of the Sea-Bed and the Developing Countries. 1976 ISBN 90-286-0616-5

2.

N. Papadakis: The International Legal Regime of Artificial Islands. 1977 ISBN 90-286-0127-9

3.

S. Oda: The Law of the Sea in Our Time. Volume I: New Developments, 1966-1975. 1977 ISBN 90-286-0277-1

4.

S. Oda: The Law of the Sea in Our Time. Volume II: The UN Seabed Committee, 19681973. 1977 ISBN 90-286-0287-9

5.

C.O. Okidi: Regional Control of Ocean Pollution. Legal and Institutional Problems and Prospects. 1978 ISBN 90-286-0367-0

6.

N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contribution of the African States to the 3rd UN Conference on the Law of the Sea. 1980 ISBN 90-286-0639-4

7.

R.P. Anand: Origin and Development of the Law of the Sea. History of International Law Revisited. 1983 ISBN 90-247-2617-4

8.

A.M. Post: Deepsea Mining and the Law of the Sea. 1983

ISBN 90-247-3049-X

9.

S.P. Jagota: Maritime Boundary. 1985

ISBN 90-247-3133-X

10. A.O. Adede: The System for Settlement of Disputes under the UN Convention on the Law of the Sea. A Drafting History and a Commentary. 1987 ISBN 90-247-3324-3 11. M. Dahmani: The Fisheries Regime of the Exclusive Economic Zone. 1987 ISBN 90-247-3374-X 12. S. Oda: International Control of Sea Resources. Reprint with a New Introduction. 1989 ISBN 90-247-3800-8 13. D.G. Dallmeyer and L. DeVorsey, Jr. (eds.): Rights to Oceanic Resources. Deciding and Drawing Maritime Boundaries. 1989 ISBN 0-7923-0019-X 14. B. Kwiatkowska: The 200 Mile Exclusive Economic Zone in the New Law of the Sea. 1989 ISBN 0-7923-0074-2 15. H.W. Jayewardene: The Regime of Islands in International Law. 1990 ISBN 0-7923-0130-7 16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solutions. 1990 ISBN 0-7923-0862-X 17. J.A. de Yturriaga: Straits Used for International Navigation. A Spanish Perspective. 1991 ISBN 0-7923-1141-8 18. C.C. Joyner: Antarctica and the Law of the Sea. 1992

ISBN 0-7923-1823-4

Publications on Ocean Development 19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime/Le Plateau continental et la Zone économique exclusive: Délimitation et régime juridique. 1993 ISBN 0-7923-2056-5 20. F. Laursen: Small Powers at Sea. Scandinavia and the New International Marine Order. 1993 ISBN 0-7923-2341-6 21. J. Crawford and D.R. Rothwell (eds.): The Law of the Sea in the Asian Pacific Region. 1995 ISBN 0-7923-2742-X 22. M. Munavvar: Ocean States. Archipelagic Regimes in the Law of the Sea. 1995 ISBN 0-7923-2882-5 23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. 1995 ISBN 0-7923-3052-8 24. A.G. Oude Elferink: The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. 1994 ISBN 0-7923-3082-X 25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Convention and Beyond. 1994 ISBN 0-7923-3212-1 26. T.O. Akintoba: African States and Contemporary International Law. A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone. 1996. ISBN 90-411-0144-6 27. J.A. Roach and R.W. Smith: United States Responses to Excessive Maritime Claims. Second Edition. 1996 ISBN 90-411-0225-6 28. T. Treves (ed.): The Law of the Sea. The European Union and its Member States. 1997 ISBN 90-411-0326-0 29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf. 1997 ISBN 90-411-0333-3 30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the Presential Sea. 1997 ISBN 90-411-0365-1 31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South China Sea. 1997 ISBN 90-411-0411-9 32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime. 1997 ISBN 90-411-0473-9 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8

Publications on Ocean Development 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002. ISBN 90-411-1976-0 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002. ISBN 90-411-2015-7 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003. ISBN 90-04-13669-X 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3