Law of the Sea in Dialogue (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht)

Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

Begründet von Viktor Bruns

Herausgegeben von Armin von Bogdandy · Rüdiger Wolfrum

Band 221

Holger Hestermeyer · Nele Matz-Lü ck Anja Seibert-Fohr · Silja Vö neky (eds.)

Law of the Sea in Dialogue

ISSN 0172-4770 ISBN 978-3-642-15656-4 e-ISBN 978-3-642-15657-1 DOI 10.1007/978-3-642-15657-1 Springer Heidelberg Dordrecht London New York Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. © by Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-PlanckInstitut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2011 Dieses Werk ist urheberrechtlich geschützt. Die dadurch begründeten Rechte, insbesondere die der Übersetzung, des Nachdrucks, des Vortrags, der Entnahme von Abbildungen und Tabellen, der Funksendung, der Mikroverfilmung oder der Vervielfältigung auf anderen Wegen und der Speicherung in Datenverarbeitungsanlagen, bleiben, auch bei nur auszugsweiser Verwertung, vorbehalten. Eine Vervielfältigung dieses Werkes oder von Teilen dieses Werkes ist auch im Einzelfall nur in den Grenzen der gesetzlichen Bestimmungen des Urheberrechtsgesetzes der Bundesrepublik Deutschland vom 9. September 1965 in der jeweils geltenden Fassung zulässig. Sie ist grundsätzlich vergütungspflichtig. Zuwiderhandlungen unterliegen den Strafbestimmungen des Urheberrechtsgesetzes. Die Wiedergabe von Gebrauchsnamen, Handelsnamen, Warenbezeichnungen usw. in diesem Werk berechtigt auch ohne besondere Kennzeichnung nicht zu der Annahme, dass solche Namen im Sinne der Warenzeichen- und Markenschutz-Gesetzgebung als frei zu betrachten wären und daher von jedermann benutzt werden dürften. Einbandentwurf : WMXDesign GmbH, Heidelberg Gedruckt auf säurefreiem Papier Springer ist Teil der Fachverlagsgruppe Springer Science+Business Media (www.springer.com)

Preface “Mare igitur proprium omnino alicujus fieri non potest, quia natura commune hoc esse non permittit, sed jubet”1 wrote Grotius in 1609. The law of the sea never was to be the same again. Many scholars have since dedicated all or part of their work to the law of the sea. Rüdiger Wolfrum is one of them, although he also worked intensively on international law in general, human rights, environmental law and the United Nations. As a scholar he dedicated part of his admirable energy to the law of the sea ever since he worked on his Habilitationsschrift on “The Internationalization of Common Spaces Outside National Jurisdiction”, published in 1984. His work as a practitioner equals his scholarly endeavors: from his participation in the Third U.N. Law of the Sea Conference as (alternate) representative of the German delegation and adviser to the Ministry of Economics to his now 14-year long tenure at the International Tribunal for the Law of the Sea, serving as its President from 2005 to 2008, he has seen the law of the sea develop and left his own mark on that development. This volume contains the proceeding of the seminar “Law of the Sea in Dialogue” held on December 4-5, 2009 at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg to honor Wolfrum’s work. While fragmentation continues to loom large in international law debates, international regimes clearly touch on each other and increasingly overlap. The goal of the seminar was to reflect this growing interplay between international regimes and bring together scholars from different fields of international law. In an effort to stimulate a common dialogue on current global challenges which go beyond specific regimes, the focus of the conference was on those challenges resulting from global warming, the exploitation of the global commons and the new security threats that stem from the return with a vengeance of a threat almost as old as seafaring itself: piracy.

1

“It is, then, quite impossible for the sea to be made the private property of any individual; for nature does not merely permit, but rather commands, that the sea shall be held in common.” H. Grotius, Mare Liberum (R. Feenstra ed., 2009), 64-65.

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Tackling the issue of global warming Christian Tomuschat explores if and how rules on State responsibility could be made to bear on global warming. Concluding that these rules cannot adequately deal with the problems caused by global warming Tomuschat also examines the possibility of a different approach. Michael Bothe looks in-depth at the factual and legal interplay between global warming and the oceans. Bothe analyses the legal framework on all human activities relating to climate change and the oceans, ranging from vessel emissions to carbon storage in the seas. Turning back to the law of climate change proper, Jutta Brunnée discusses the “Copenhagen Accord” reached in December 2009 and the post-2012 climate regime. Her article identifies the principle of “common but differentiated responsibilities” as a key principle of the climate regime and fleshes out the meaning of that principle for Copenhagen and beyond. Fred Morrison’s contribution concludes the global warming section by facing head on one of the major concerns in the climate change regime: the reluctance of the United States to ratify treaties. He explains that reluctance with the difficulty in obtaining the Senate’s assent to ratification and discusses available alternatives to the ratification of a formal treaty. Gerhard Hafner opens the discussion on the global commons. He provides an overview over different regimes usually associated with the commons and examines to what extent existing commons regimes under international law meet a set of design rules for successful common resource management institutions established by Ostrom et al., identifying challenges for the future. Tullio Treves picks up the ball, analyzing ways to engage international courts and tribunals in the protection of the common heritage of mankind, in particular in the law of the sea. He identifies categories of disputes that may involve the notion of the common heritage of mankind, discusses jurisdiction and standing under UNCLOS and pinpoints shortcomings in the judicial protection of the common heritage under the current regime. Mahnoush Arsanjani and Michael Reisman shift the focus to security issues in their article on East African piracy and the defense of world public order. They describe the current legal and factual situation with respect to piracy and evaluate techniques for the protection of public order, conceiving of the piracy problem as one of the restoration and maintenance of public order, rather than just a legal issue. Thomas Mensah presents the legal issues surrounding piracy, starting from the traditional legal position and going over legal and factual problems raised by new forms of piracy. Finally, he considers and evaluates proposals to tackle piracy. The volume is concluded by Jochen Frowein’s contribu-

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tion discussing action against arms shipment on the seas in violation of Security Council resolutions or otherwise threatening international peace and security. Using as an example two recent cases, in which German ships transporting arms were intercepted, the article analyzes possible legal grounds for such interceptions ranging from Security Council authorization to the Proliferation Security Initiative, specific treaties authorizing boarding and the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The editors would like to thank Marlitt Brandes for her editorial assistance, Kate Elliot for performing the native speaker check and the publishing staff at the Max Planck Institute, in particular Dr. Christiane Philipp, for their dedicated work. Holger Hestermeyer, Nele Matz-Lück, Anja Seibert-Fohr, Silja Vöneky

Table of Contents Global Warming Christian Tomuschat Global Warming and State Responsibility ......................................... 3 Michael Bothe Measures to Fight Climate Change – A Role for the Law of the Sea? ................................................................................... 31 Jutta Brunnée An Agreement in Principle? The Copenhagen Accord and the Post-2012 Climate Regime .......................................................... 47 Fred L. Morrison The Reluctance of the United States to Ratify Treaties................... 73

Exploitation and Use of the Global Commons Gerhard Hafner The Division of the Commons? The Myth of the Commons: Divide or Perish.................................................................................. 91 Tullio Treves Judicial Action for the Common Heritage..................................... 113

Law of the Sea and Security Mahnoush H. Arsanjani/ W. Michael Reisman East African Piracy and the Defense of World Public Order ....... 137 Thomas A. Mensah Piracy at Sea – a New Approach to an Old Menace...................... 161 Jochen Abr. Frowein The Security Council and the Security on the Seas ....................... 179

List of Contributors Arsanjani, Mahnoush H. Former Director, Codification Division of Office of Legal Affairs, United Nations; Associated Member of the Institut de Droit International Bothe, Michael Professor (em.) of Public Law, Public International Law and European Law, Faculty of Law, J.W. Goethe University Frankfurt/Main Brunnée, Jutta Professor of Law and Metcalf Chair in Environmental Law, Faculty of Law, University of Toronto Frowein, Jochen Abr. Professor (em.) of Constitutional and Public International Law, Faculty of Law, Heidelberg University; Director (em.) Max Planck Institute for Comparative Public Law and International Law; former Vice-President of the European Commission of Human Rights; Member of the Institut de Droit International Hafner, Gerhard Professor (em.) of Public International Law and European Law at the Institute of International Law and International Relations, Faculty of Law, University of Vienna; Member of the Institut de Droit International Mensah, Thomas A. Former Judge and President of the International Tribunal for the Law of the Sea; Member of the Institut de Droit International

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Morrison, Fred L. Popham Haik Schnobrich/Lindquist and Vennum Professor of Law, University of Minnesota Reisman, W. Michael Myres S. McDougal Professor of International Law, Yale Law School; Member of the Institut de Droit International Tomuschat, Christian Professor (em.) of Public International Law, Faculty of Law, Humboldt University Berlin; former member and president of the International Law Commission; Member of the Institut de Droit International Treves, Tullio Professor of International Law, University of Milan; Judge of the International Tribunal for the Law of the Sea; Member of the Institut de Droit International

Global Warming

Global Warming and State Responsibility Christian Tomuschat*

A. Introduction Global warming has become an undeniable fact.1 It has the potential to threaten life on this planet. Until a few years ago, even knowledgeable authors called the results of the many negative forecasts by climate specialists into doubt. It seems that such objections have eventually receded in quantity as well as in quality.2 That climate change is to be traced back to human activity must be accepted as a simple truth which can no longer be talked away. The only remaining question seems to be whether the planet earth finds itself at the same time in a natural cycle that pursues its course independently of man-made causes. This lack of definitive certainty places heavy obstacles into the path to coordinated measures suited to combat deleterious and even disastrous developments. Only if the diagnosis is clear and irrebuttable will it be possible for humankind to launch a comprehensive program designed to avert the worst consequences of a phenomenon that is of unparalleled com* Text of a presentation made on 4 December 2009, i.e. before the Copenhagen UN Conference on Climate Change. 1

See the Fourth Assessment Report of the Intergovernmental Panel on Climate Change: Climate Change 2007 – Synthesis Report, 72, available at . 2 It is significant in this regard that the American Petroleum Institute, which was still starkly challenging the notion of climate change in 2002, see references given by D. Culley, Global Warming, Sea Level Rise and Tort, 8 Ocean and Costal Law Journal 91, at 101-102 (2002), has completely turned round, see the article “Climate Change”, 8 October 2009, available at .

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_1, © Springer-Verlag Berlin Heidelberg 2011

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plexity. Never before has humankind had to face up to a threat that involves not only every member of the international community, States and international organizations alike, but also every individual human being. Everyone can, by his or her personal conduct, contribute to exacerbating or mitigating the effects of global warming. It is not only “the others” that are to blame. Every human being bears his/her share of responsibility. Nostra res agitur. There is no need to emphasize the well-known fact that the most varied initiatives have been launched with a view to reducing the amount of greenhouse gases (GHGs), in particular of carbon dioxide, which are primarily blamed for the rise in global temperatures in recent decades. In fact, prevention seems to be the most appropriate and sole promising remedy. If the world climate should suffer havoc, human efforts would hardly ever be able to restore the integrity of the natural cycles. On the other hand, however, injury has already occurred and will increase in size and depth before any counter-strategies can take effect. Therefore, it must be tempting to ask whether the law of State responsibility can be resorted to for the purpose of equitable burden sharing between States. At first glance, it does not seem too far-fetched to derive rights of reparation from neglect shown by the nations that have benefited most from easy accessibility of fossil fuels and have thereby climbed up many steps in the hierarchy of the most powerful economies of the world. On the other hand, it is clear from the very outset that the law of State responsibility is backward-looking. It may provide answers as regards the settlement of wrongful activities that occurred in the past. But it does not provide recipes for the shaping of policies in the future, although cessation and guarantees of non-repetition also belong to the tool box which it puts at the disposal of actors in international relations. Putting in place a better system which both accommodates the needs of modern societies and prevents the natural climate equilibrium from collapsing is a task of much wider dimensions which cannot be discharged solely by looking to the past. Together with the law of treaties, the rules on State responsibility belong to the core elements of international law. Through a long history, they have received firm contours which, a few years ago, found their written expression in the Articles on Responsibility of States for internationally wrongful acts (henceforth: Articles or ARS) drafted by the International Law Commission (ILC).3 These Articles seem to provide the ultimate answer to any issue of State responsibility. But they should 3

Taken note of by GA Res. 56/83 of 12 December 2001.

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not be considered as an iron cage that lacks any kind of flexibility. In particular, one cannot avoid reflecting on whether the Articles are meant to constitute an exhaustive set of rules, even with regard to new challenges that have no precedent in the past. In any event, their scope ratione personae is fairly limited. They do not even cover the responsibility of international organizations. The ILC felt it necessary to develop a new text for this second class of subjects of international law, given their many peculiarities as entities made up of members who are also subjects of international law.4 Regarding injury caused to individuals through violations of basic human rights, on the other hand, the Articles likewise have no solution to offer, inasmuch as they concern only relationships between States as the classic subjects of international law. Given this legal vacuum, initiatives were undertaken through the former Commission on Human Rights and its Sub-Commission to draft a regime of reparation in favour of individuals who were victims of violations of human rights and/or rules of international humanitarian law. These efforts came to fruition in 2005 when the General Assembly adopted the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”.5 Global warming, since it affects all States and peoples of the globe alike, together with every individual human being, likewise does not fit into the traditional intellectual framework established for the reparation of tort committed at the international level. Therefore, it may be possible to devise new rules that would take account of today’s unprecedented factual circumstances that require new answers. On the other hand, it stands to reason that new rules cannot be created ex nihilo. They must be closely related to the principles underlying the existing ones in order to be accepted as fair responses to the current challenges. Problems of global warming could be solved quite easily if a comprehensive regime of strict liability existed in international law. However, 4

ILC Draft Articles on the Responsibility of International Organizations, adopted on first reading in 2009, Report of the ILC, UN Doc. A/64/10, 19 para. 50 (2009). 5

GA Res. 60/147 of 16 December 2005. For a commentary see C. Tomuschat, Reparation in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law, in: M. G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution Through International Law. Liber Amicorum Lucius Caflisch, 569-590 (2007).

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such a regime, where the causation of damage would automatically trigger a duty of reparation, has not taken shape under general rules of international law.6 By contrast, conventional regimes have been put into place as appropriate with regard to a limited number of hazardous activities that may involve an uncontrollable risk. Thus, in particular in the field of outer space activities and also with regard to nuclear installations compensation schemes have been established by treaty that provide for financial compensation to victims without any regard for negligence on the part of the author of the chain of events that led to the damage in issue.7 When embarking, in 2003, on studying the topic “International Liability in Case of Loss from Transboundary Harm”, the Special Rapporteur of the ILC noted in his guiding outline on the criteria to be followed in drafting specific rules that “State liability”, i.e. strict liability, was an exception and was accepted only in some limited fields of human activity.8 This view is founded on general agreement. Additionally, regimes of strict liability generally tend to channel liability directly to the operator of the activity concerned. This fact alone demonstrates the necessity of putting into place special arrangements by way of treaty. Thus, to explore the possibilities of State responsibility appears to be indeed the only avenue that may open up constructive and viable solutions. On the other hand, the creation of a regime of subsidiary State liability remains a desideratum pro futuro in view of cases where a State sustains disruptive damage from activities carried out on the soil of another State.9 6

G. Handl, Liability as an Obligation Established by a Primary Rule of International Law, 16 Netherlands Yearbook of International Law 49, at 58 (1985). 7

For an overview see A. Kiss/D. Shelton, Strict Liability in International Environmental Law, in: T. M. Ndiaye/R. Wolfrum (eds.), Law of the Sea, Environmental Law and Settlement of Disputes. Liber Amicorum Judge Thomas A. Mensah, 1131, at 1135-1138 (2007). 8

ILC Report, UN Doc. A/58/10, at 111 para. 174 c) (5) (2003). This view is also reflected in the General Commentary on the final outcome of the exercise, the ILC Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, ILC Report, UN Doc. A/61/10, at 112 para. 67, para. 8 (2006). 9

See Resolution of the Institute of International Law on “Responsibility and Liability under International Law for Environmental Damage”, 4 September 1997, Article 4, 37 ILM 1474 (1997); G. Handl, International Accountability for Transboundary Environmental Harm Revisited: What Role for “State Liability”?, 37 Environmental Policy and Law 116-125 (2007).

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B. Identification of Possible Legal Relationships In the first place, any endeavour to make use of the rules of State responsibility must seek to determine the subjects between which a legal relationship centred on reparation may be imaginable. Legal accuracy requires that a rights-holder on the one side and a duty-bearer on the other be identifiable. Only then will it be possible to leave the political dimension and enter the province of law proper. At the end of the day, it may well turn out that it is necessary to conceive of an entirely new system within which the concept of responsibility will have to be given a new meaning. But this is another matter. At the present juncture, nothing other than the suitability of the classic system of State responsibility for addressing the harmful consequences of global warming is to be tested. The Articles adopted by the ILC in 2001 genuinely reflect the classic perception according to which the rules on State responsibility are designed to provide reparation for an injury which one State has caused to another. Notwithstanding quite a number of additional elements, the basic model is that of a bilateral relationship.10 Such configurations exist also in the field of environmental protection. Still today, the Trail Smelter case between Canada and the United States11 can be considered as the prime paradigmatic example of a bilateral dispute over environmental issues. Since the Trail Smelter arbitration, many other similar cases have followed suit.12 Currently, proceedings between Argentina and Uruguay are pending before the ICJ.13 But, as already hinted, global warming affects all States. They are all authors and victims at the 10

For a study of the tradition of bilateralism in the law of State responsibility see G. Nolte, From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations, 13 European Journal of International Law 1083-1098 (2002). 11

Trail Smelter Arbitration (USA v. Canada), 3 UNRIAA 1905.

12

See also ITLOS, MOX Plant (Ireland v. UK), Order of 3 December 2001, available at . For a general discussion see P.-T. Stoll, Transboundary Pollution, in: F. L. Morrison/R. Wolfrum (eds.), International, Regional and National Environmental Law 169-200 (2000). 13

Pulp Mills on the River Uruguay (Argentina v. Uruguay). On 13 July 2006, the ICJ refused to issue an injunction against Uruguay. The case is currently (November 2009) under deliberation for the final judgment on the merits.

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same time, albeit with different degrees of involvement (in order to avoid the word “responsibility”). For the terminology used in addressing environmental matters the concept of “common but differentiated responsibilities” has been coined.14 It stands to reason that this specific concept of “responsibility” does not carry the usual meaning as denoting a binding obligation under international law. Instead, the formula is intended to convey the idea that humankind as a whole has a moral duty to ensure the continued existence of natural conditions that permit its survival. Before setting out to determine authors and victims to be considered for the purposes of the present study, we shall first of all cast a short glance at the causes of global warming. Accordingly, a balance sheet of human activities likely to generate emissions that promote the greenhouse effect should be established. Emissions resulting from burning fossil fuels must certainly be mentioned in the first place. But carbon dioxide emitted from driving cars, produced by operating industrial machines and heating buildings is not the only substance jeopardizing the world climate. Other important factors are the clearing and burning of forests in order to gain agricultural land and the methane produced by cows and through fertilizer used by farmers intent on improving the productivity of their soils. And one can doubtless pinpoint many additional substances which have to be taken into account when one tries to gain a general overview of the relevant processes which in their combination push up the concentration of greenhouse gases in the atmospheric strata of the globe; quantitatively, however, they should play only a marginal role.

I. Responsible Authors After having established a balance sheet of dangerous human activities, the next step would consist of attributing a share of responsibility to individual States. This amounts to an adventurous undertaking. It is clear that the United States and Russia (the Soviet Union) have contributed much more to global warming than Luxemburg, notwithstanding the glorious industrial past of this last country, or most of the countries of the African continent. But this simple comparison does not really 14

Rio Declaration on Environment and Development, Principle 7, 31 ILM 876 (1992); United Nations Framework Convention on Climate Change, 9 May 1992, Preamble, para. 6, Art. 3, 1771 UNTS 107.

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solve the riddle. For practical purposes, precise figures are required. We are not versed enough in natural science to proceed to a rough estimate. And yet, it may be possible today to build sophisticated mathematical models capable of reflecting quite fairly the percentages to be attributed to each country for its past historical record, of course within a wide margin of discretion.15 When engaging in this kind of exercise, one cannot avoid considering the contributions provided by the big exporters of oil, gas, and coal. Since they do not produce harmful emissions themselves, or only as far as their own home consumption is concerned, they might be left totally aside when calculating the respective shares of individual States. In a political perspective, this might appear unsatisfactory since they are “accomplices” of the consumer countries. Without being supplied by the producers, the consumers would hardly be in a position to live as profligately as they have done – and continue to do. This finding, on the other hand, speaks against including the shipments of energetic materials by the producer countries in the overall calculation. The main consumer countries, primarily the United States, Europe and Japan, have been able to develop their industrial capacities and to acquire considerable wealth only on the basis of easy access to primary energy; the same is now true of China. They owe their economic well-being essentially to cooperation with the producer countries. It is certainly correct to state that the industrial world would never have reached the level of technological superiority if it had not been generously provided with all the sources of energy its members needed to sustain their industries. In any event, this is an issue which deserves closer attention. It stands to reason that within the intellectual framework of State responsibility private actors cannot be taken into consideration. The regime of international responsibility proceeds from the assumption that States are to be accountable for the acts or omissions of their agents but not for any acts performed by private persons subject to their jurisdiction. However, States bear a duty to ensure that there is law and order within their jurisdiction. Accordingly, private acts may become attrib15

See, for instance, M. Den Elzen/M. Schaeffer, Responsibility for Past and Future Global Warming: Uncertainties in Attributing Anthropogenic Climate Change, 54 Climatic Change 29-73 (2002). The key document is currently the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, published in 2007. For the Synthesis Report see .

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utable to them if they have failed to discharge their controlling function. Since the great bulk of GHG emissions emanate from private sources – industries are rarely run by governments themselves –, the question arises what are the criteria which trigger the monitoring duty of a State. Even when one recognizes that the world’s industrial powers have made the largest contributions to the actual crisis situation, the conclusion seems inescapable even prima facie that the situation of global warming does not fit into the traditional scheme of State responsibility. The macro-phenomenon of accumulation of GHGs in the earth’s atmosphere not only involves an indefinite multitude of actors, but also covers large periods of time during which the percentages of those gases have risen continuously, at least for decades. State responsibility, by contrast, is generally based on the assumption that an individual tortfeasor can be identified. Only the micro-phenomenon of a wrongful act is suitable for analysis in light of the ARS. To disentangle the cobweb of individual acts by States and societal forces would presuppose an international authority vested with decision-making powers. Failing such an authority, solutions can be found only by mutual agreement, i.e. outside the framework of State responsibility.

II. Victims The next issue to be considered is the identification of victims. Here, similar difficulties arise, although some classes of victims can be discerned quite easily. Climate change affects all States.16 The deterioration of the world climate does not spare anyone,17 but of course the degree of injury sustained differs enormously. It is clear that some countries are particularly vulnerable.18 Already today, low-lying countries are confronted with the first effects of the slow rise in the level of the 16

See US Supreme Court, Massachusetts v. EPA, 549 U.S. 497 (2007).

17

According to the official UN language, climate change “is a common concern of humankind”, GA Res. 43/53 of 6 December 1988, para. 1; United Nations Framework Convention on Climate Change, 9 May 1992, Preamble para. 1, 1771 UNTS 107. 18

For a description of the impact global warming has on the most vulnerable countries see, for instance, S. C. Aminzadeh, A Moral Imperative: The Human Rights Implications of Climate Change, 30 Hastings International and Comparative Law Review 231-265, at 241 et seq. (2007).

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oceans.19 This is felt in particular by the small island states in the Pacific and in the Indian Ocean which may become uninhabitable in a few years’ time.20 But in the last analysis it has become clear that every State that is not land-locked will have to cope with the rising sea level. In Italy, the city of Venice may be doomed, and in other parts of the country all the beaches may be washed away.21 In the Netherlands, the existing levees may not be able to resist the increasing pressures of the sea, and quite evidently all delta areas are structurally under threat. This applies to large parts of Bangladesh and to the Nile delta in Egypt. Human technology will not be able to compensate fully for the inches in height that the land will lose in comparison with the sea. In any event, even in the absence of perfect corroborating evidence, there can be no doubt that at least the countries that become uninhabitable belong to the class of victims. It is probably more difficult to prove that there exists a link of causation between high levels of greenhouse gas emissions and the ongoing desertification process. Can the lack of rain in Iraq and in some African countries really be attributed to global warming? One may expect that scientists will attempt to make the demonstration of that causal chain which, today, seems to pertain more to conjecture than to consolidated scientific knowledge. And even if it should be possible to establish a causational link between the general phenomenon of desertification and the disastrous consequences that must be feared pursuant to the current forecasts, it would seem next to impossible to identify the contribution of any individual country to that process – which brings us back to the issue of responsible authors. One could only say that any emission of GHGs is harmful. But a conclusive judgement on the precise attribution of responsibilities is hardly imaginable.

19

See the study by E. A. Laws, Climate Change, Oceans, and Human Health, 21 Ocean Yearbook 129-175 (2007). 20

An account of the situation of Tuvalu is given by Culley (note 2), at 91125. However, according to other reports the sea level has remained stable in those regions over the last decade, see T. Aung/A. Singh, Preliminary Results of the South Pacific Sea Level and Climate Monitoring Project and Its Capacity Building Program, 21 Ocean Yearbook 69-89 (2007). 21

The beaches of the east coast of the United States seem also to be under threat, see D. A. Grossman, Warming up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Columbia Journal of Environmental Law 1, at 12 (2003).

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III. The Role of the International Community Lastly, the question arises what role, if any, can be played by the international community. Again, two opposite issues have to be tackled: can the international community possibly be counted among the authors or, by contrast, among the victims of global warming? The international community is more an intellectual concept than a real subject of international law endowed with component elements that would make it a true physically identifiable actor in international relations.22 It is certainly true that the entire surface of this globe may be counted as the territorial foundation of the international community. It can also be argued that humankind as a whole constitutes the personal component of the international community. But the international community is not organized as an integrated whole. It has found expression in a number of organizational units, in particular the United Nations and its specialized agencies. In addition, some key concepts of the international legal order like jus cogens and obligations erga omnes presuppose a common basis of values that have been embraced by all States. One may also refer to the International Criminal Court which, on its part, would be beyond imagination without a common trust in principles of fairness and justice. All of these elements, however, do not add up to a coherent entity that would be able to form its own independent will and thereby to form an overarching structure encompassing all transnational processes. When examining whether the international community might possibly be considered as an author having contributed to climate change, the only intellectual bridge could be provided by the allegation that it has failed to assume its responsibility to act as the conscience of humankind. It needs no explanation that the international community does not directly engage in any harmful activities. On the other hand, the idea of vicarious liability leads the observer immediately into a dilemma. Blaming the international community for not adequately discharging its watchdog role vis-à-vis its members would be an inconsistent proposition, since it is no more than what its members have tasked it with doing. As far as global warming is concerned, it must proceed in the traditional way by attempting to impel its members to conclude international treaties, for whose entry into force the consent of each and 22

For the latest discussion of this topic see B. Fassbender, The United Nations Charter as the Constitution of the International Community, at 52 et seq. (2009).

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every individual member is necessary. It does not enjoy the power to enact regulations with direct applicability. In particular, such powers have not been conferred on the organs of the United Nations, the primary embodiment of the organized international community. Chapter VII of the Charter might certainly be resorted to in instances where an environmental problem threatens international peace and security. But Chapter VII cannot be used as an instrument for the regulation of “ordinary” political disputes that require a solution through diplomatic processes.23 Could the international community ever be acknowledged as the holder of rights of reparation? This is a far more plausible assumption than to inquire into its potential status as a duty bearer on account of environmental negligence. By definition, world climate is intimately related to the international community. Thus, if the world climate suffers damage, there is no one else that seems to be legitimated to assert reparation claims. However, as already pointed out, the international community is not recognized as a subject of international law. If interests of humankind as a whole are to be safeguarded, this must be organized by way of treaty or through some other law-creating process. It may well be that customary rules will emerge one day on the basis of practice and opinio juris. Currently, only fragmentary pieces of practice can be observed. Under the general rules on State responsibility, it is recognized that obligations may be “owed to the international community as a whole” (Articles 33(1), 48(1)(b) ARS). Since the international community lacks any physical presence as an independent and separate entity, Article 33(1) ARS has been implemented in the sense that any State is entitled to invoke the responsibility of another State in such instances.24 Many questions arise in this connection. First of all, one would have to clarify whether environmental obligations incumbent upon States like those in Articles 192, 194 UNCLOS belong to the class of obligations

23

See the debate held by the Security Council on 17 April 2007, S/PV.5663, where some countries challenged the competence of the Council to engage in environmental matters. In particular, the representative of Pakistan said that (p. 24) the “ever-increasing encroachment by the Security Council on the roles and responsibilities of other principal organs of the United Nations represents a distortion of the principles and purposes of the Charter.” 24

The commentary on Article 33(1) ARS confines itself to citing the words of the provision, see J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, at 209, para. 2 (2002).

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“owed to the international community as a whole”.25 The commentary of the ILC would seem to indicate that the ILC had in mind only the jurisprudence of the ICJ in the Barcelona Traction case,26 where a distinction was drawn between “ordinary” obligations and obligations that have a particular weight in that they directly affect the existence and dignity of the human person.27 It might be argued that the formula chosen by the ILC is open to interpretation and cannot be understood as being petrified not susceptible to adaptation to changing circumstances. However, it is also clear that the ILC thought of occurrences where a specific tortious act could be unmistakably identified. Article 48(1)(b) ARS is designed to enable every member of the international community to proceed against a State that, through its actions, has encroached upon core elements of the international community. Applying Article 48(1)(b) ARS to the climate situation would mean that every individual State could possibly bring a claim against every other State – which is not a very sensible proposition.28 One should also recall that the precursor of Article 48(1) ARS, Article 19 of the articles on State responsibility adopted on first reading in 1996, classified as an “international crime” the commission of which made all other States an injured State “[a] serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas”. Quite obviously, the drafters did not wish to include in the scope of that provision the continuous process of accumulation of GHGs in the atmosphere. 25

The commentary on UNCLOS by M. H. Nordquist/S. Rosenne/A. Yankov (eds.), UN Convention on the Law of the Sea, Vol. IV, at 35-43 (on Article 192) and 50-68 (on Article 194) (1991) retraces essentially the drafting history and does not answer the questions which currently require elucidation. 26

Barcelona Traction, Light and Power Company (Belgium v. Spain), Second Phase, ICJ Reports 1970, 3, at 32, para. 33. 27 28

Crawford (note 24), at 278, para. 8.

A. Boyle, Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited, in: A. Boyle/ D. Freestone, International Law and Sustainable Development: Past Achievements and Future Challenges, 61, at 76 (2001); scepticism is also expressed by Ni Kuei-Jung, Third State Countermeasures for Enforcing International Common Environmental Interests: The Implication and Inspiration of the ILC’s Articles on State Responsibility, 22 Chinese Yearbook of International Law and Affairs 1, at 36-47 (2004). But see R. Verheyen, Climate Change Damage and International Law. Prevention Duties and State Responsibility, at 267 (2005).

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More or less the same rule on obligations owed to the international community as a whole was included in the recent draft Articles on Responsibility of international organizations (Article 48(2)).29 This new draft increases the authority of international organizations by elevating them also, in the same way as States, to the rank of guardians of such obligations. Article 48(3) provides: “An international organization other than an injured international organization is entitled to invoke the responsibility of another international organization … if the obligation breached is owed to the international community as a whole and safeguarding the interest of the international community underlying the obligation breached is included among the functions of the international organization invoking responsibility.” However, the monitoring role is confined to commitments breached by other international organizations. The draft refrains from entrusting international organizations with reviewing the conduct of States – which would obviously have amounted to a revolutionary step. Thus, only a modest implementation mechanism may come into existence outside the traditional inter-State framework. In addition, it remains of course to be seen whether the rule suggested by the ILC will meet with approval in the UN General Assembly, its parent controlling body.

C. Wrongful Conduct The centrepiece of international responsibility is the breach of an international obligation. In this regard, activities susceptible of bringing about climate change resist any easy classification as unlawful. To date, it is not forbidden to burn fossil fuels. A huge percentage of world exports consist of energy in fossil form and of automobiles that require fuel for their operation. Large international regulatory systems, at the universal level the WTO, have been established in order to facilitate trade in such goods. To obstruct trading constitutes an unlawful act, entailing international sanctions. Generally, it is considered desirable to cut down on GHGs emissions from automobiles and other sources. But the lawfulness of automobile traffic and of other processes leading to such emissions is not called into doubt.

29

Report of the ILC, UN Doc. A/64/10, at 19 para. 50 (2009).

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On reflection, it becomes clear that ambitious aims like zero emissions or drastic cut backs to half of the present quantities lack any realistic foundation. Western societies in particular would immediately collapse if deprived of their energy sources. They have got accustomed to unhindered access to energy, and this expectation has framed their lifestyles. In other parts of the world, burning wood is a bitter necessity. Housewives need wood from trees and bushes for their stoves on which they prepare their meals. They do not have any viable alternative. Thus, the fact that no prohibition exists reflects a situation of needs – at least to some extent. In fact, what one can say is that Western societies use energy too generously, almost abusively. There is a vast potential for reduction in their luxury consumption. For many centuries, burning fossil fuels and cutting down trees was just seen as a fact of life. Italy ruined its countryside even in antiquity when forests were ruthlessly cleared for shipbuilding purposes, for the classis romana, the Roman fleet. Nobody realized in antiquity or during the middle ages that such activity might have far-reaching consequences, also for other countries, by way of climate change. The environmental th implications were discovered only in the second half of the 20 century. Since no explicit prohibitions can be detected that would render unlawful any activity that produces GHG emissions, the focus must change. One has to look for other rules that either establish liability for sharing the financial burdens or place the emphasis on the effects caused to the environment. Indeed, protective rules may exist in different configurations. Either specific activities are prohibited outright, which, as just outlined, is not the case in the field under review. Or else it may be incumbent on international actors to do their best (“due diligence”) in attempting to safeguard a common good. On the other hand, as already pointed out, a standard of strict liability that would trigger compensation claims just on account of the occurrence of damage, irrespective of whether the actors concerned have acted with care and circumspection, does not exist in general international law.

I. Polluter Pays Principle Among the principles of international environmental law the polluter pays principle is constantly mentioned. It might be attractive to resort to this principle in allocating the costs of global warming. However, the scope and meaning of this principle are far from being neatly defined. The emission of GHGs produces deleterious warming effects only

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17

through a complex process, involving many chemical and physical factors. As such, carbon dioxide is not a harmful gas. Therefore, it is highly doubtful whether one can speak of “pollution” through GHGs. In the case of Massachusetts v. EPA,30 the U.S. Supreme Court had to deal with the issue when the State of Massachusetts demanded that the Environmental Protection Agency adopt stricter regulations for setting lower caps on the permissible volume of automobile emissions. In a 5:4 decision, a majority affirmed that indeed such emissions may be viewed as “air pollutants”, an opinion which was vividly contested by dissenting judges Roberts, Scalia, Thomas, and Alito. Under the Law of the Sea Convention, Article 1(1)(4) explicitly specifies that “‘pollution of the marine environment’ means the introduction by man, directly or indirectly, of substances or energy31 into the marine environment”. Thus, through an act of foresight, the drafters of the Convention made it clear that the warming up of the oceans may be viewed as pollution. Whatever the outcome of this debate, the main obstacle to reliance on the polluter pays principle is the limited legal value of this principle. It is generally recognized as a guideline for any kind of legislation in the environmental field. In other words, it is not binding per se. Whenever a regulatory authority envisages to enact rules designed to distribute in a fair and equitable manner the financial burdens deriving from pollution, care should be taken to impose an appropriate share on the polluter. But as such, the principle is not operative. In an instructive article on the use of the polluter pays principle, American author Ved P. Nanda gives an overview of the legislation of his country, without even venturing to suggest that legal answers might be derived directly from the principle.32 There is indeed broad agreement in the legal literature that the principle has not emerged as a rule of customary international law.33 Its main weakness is that it refrains from specifying whether the accent 30 31

US Supreme Court, Massachusetts v. EPA, 549 U.S. 497 (2007). Emphasis added.

32

V. P. Nanda, Agriculture and the Polluter Pays Principle, 54 American Journal of Comparative Law 317-339 (2006). 33

See P. Birnie/A. Boyle, International Law & the Environment, at 92-95 (2 ed. 2002); N. de Sadeleer, Environmental Principles. From Political Slogans to Legal Rules, at 7 (2002); P. Sands, Principles of International Environmental Law, at 280 (2nd ed., 2003); ILC, Commentary on Principle 3 of the “Draft principles on the allocation of loss in the case of transboundary harm arising out of transboundary activities”, ILC Report, UN Doc. A/61/10, at 145-147, paras. 13-15 (2006). nd

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should be put on the unlawfulness of the causal act or on the injurious effect it has produced. Indeed, the Rio Declaration (Principle 16) is couched in very cautious, recommendatory language.34 With extreme reluctance, an author has argued that the polluter pays principle, in conjunction with the formula of common but differentiated responsibilities, “might” become the source of a legal obligation incumbent on developed countries on account of their historical record in respect of GHG emissions.35 In other words, currently a true legally binding rule does not exist. This means that to date no State has been able to breach the polluter pays principle in a sense that would entail truly legal responsibility.

II. Duties of Prevention? As a next step, one has to inquire whether rules can be found that enjoin States to engage their best efforts with a view to averting harm from the global commons. Such rules may be found either in the specific regulatory schemes governing climate change, more specifically in the law of the sea, or lastly in general rules of international law. It has also become very popular to invoke basic human rights guarantees. It stands to reason that the United Nations Framework Convention on Climate Change (UNFCCC) constitutes the core instrument relevant for the purposes of the present investigation. Some authors have argued that binding international obligations derive for all member States from Article 2 of the Convention.36 This construction of a provision whose title is “Objective” and in whose text the word “should” has been preferred to “shall” is hardly convincing. The plain text of Article 2

34

“National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” 35

Y. Matsui, The Principle of ‘Common but Differentiated Responsibilities’, in: N. Schrijver/F. Weiss, International Law and Sustainable Development. Principles and Practice, 73, at 79 (2004). 36

Verheyen (note 28), at 55-67; id., The Climate Change Regime after Montreal: Article 2 of the UN Framework Convention on Climate Change, 7 Yearbook of European Environmental Law 234, at 236-251 (2007).

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UNFCCC does not lend itself to a reading that brings into being true legal commitments. Article 4(2) UNFCCC is more suitable for interpretations intent on establishing firm legal commitments. According to this provision, the developed countries (Annex 1 countries) promise to reduce the level of their GHG emissions. Some commentators see Article 4(2) indeed as the determinative legal norm.37 They argue that obviously the industrialized countries have failed to faithfully implement the obligations formally accepted by them. Quite absurdly, reference is also made to Article 18 of the Vienna Convention on the Law of Treaties38 – a provision which certainly does not establish an obligation to fully perform the duties of a treaty a State has only signed, but not yet ratified. In any event, on the basis of the assumption that Article 4(2) UNFCCC establishes binding legal obligations, the ensuing chain of reasoning is simple and straightforward. The breach of the obligation to cut down on emissions entails responsibility. The only task that remains is to assess the damage to be compensated for by the States whose historical share of anthropogenic gas emissions is greatest. The reading of the UNFCCC suggested by the authors defending this position is somewhat simplistic. A close look at Article 4(2) UNFCCC shows that the agreement reached on certain principles is meant to be implemented progressively, step by step. This construction of Article 4(2) UNFCCC can be clearly derived in particular from sub-paragraph b) which requires States to provide information on the measures adopted by them that should “aim” to return to the levels of 1990. Most authors therefore take the view that the UNFCCC does not contain binding commitments.39 And indeed, the UNFCCC started a process which was carried forward in the following years, reaching its high point in 1997 in Kyoto on the adoption of the Kyoto Protocol, which for the first time set binding targets – in any event for the States that consented to ratify it. Thus, the practice of the States Parties to the UNFCCC makes it abundantly clear that the Convention itself was re37

Verheyen (note 28), at 79 et seq., 135; C. Voigt, State Responsibility for Climate Change Damages, 77 Nordic Journal of International Law 1-22 (2008). 38 39

Verheyen (note 28), at 82; Voigt (note 37), at 6-7.

See, for instance, C. G. Burns, Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention, 27 McGill International Journal of Sustainable Development and Policy 27, at 47 (2006); S. Vanderheiden, Atmospheric Justice. A Political Theory of Climate Change, at 56 (2008).

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garded only as a point of departure, to be particularized through later negotiations. A lot of calculations had to be carried out before States could commit themselves unequivocally. It is certainly true that the Kyoto Protocol leaves much room for improvement, and the Copenhagen Conference that will take place in a few days was intended to replace the Kyoto Protocol, at the same time giving the legal regime a push forward. Unfortunately, as is well known, the forecasts concerning the concrete outcome of the Copenhagen Conference cannot be too optimistic. This is again one of the indicia showing that States do not feel under a legal obligation to enter into binding commitments, believing instead that climate change prevention is committed to their political discretion. With regard to UNCLOS, reference is made to the earlier discussion about authors and victims of global warming.40 It is noteworthy in this regard that, during the negotiations on the new legal regime of the law of the sea, the effects of global warming were not focused upon,41 notwithstanding the fact that the introduction of energy into the marine environment was included in the concept of “pollution” (Article 1(4)). Moving on to more general formulations of the same principle, one encounters the famous proposition that States have “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”. This rule can be traced back to the Palmas award written by Swiss arbitrator Max Huber.42 With specific regard to environmental law, it was initially set out in the Stockholm Declaration on the Human Environment (Principle 21). 20 years later, the same words were included as Principle 2 in the Rio Declaration on Environment and Development.43 When the ICJ had to deliver its Legality of the Threat or Use of Nuclear Weapons advisory opinion, it observed that this “responsibility” was “now part of the corpus of international

40

See above at section B. I. and II.

41

M. Jaén, Protecting the Oceans from Climate Change: An Analysis of the Role of Selected International Instruments on Resources and Environmental Protection in the Context of UNCLOS, 21 Ocean Yearbook 91, at 119 (2007). 42

Island of Palmas case (Netherlands v. U.S.), 4 April 1928, 2 RIAA 829, at

838. 43

Rio Declaration on Environment and Development, 31 ILM 876 (1992).

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law relating to the environment”.44 In the Gabčíkovo-Nagymaros case45, and later in the Pulp Mills case,46 this holding was confirmed.47 Essentially, it corresponds to the thrust of Articles 192 and 194 UNCLOS. The Gabčíkovo-Nagymaros and Pulp Mills cases concern traditional bilateral disputes between States where the issue was or is whether one of the litigant parties had inflicted – or is inflicting – injury on the other. Accordingly, they are of little help for the specific configuration constituted by global warming. In this regard, the Nuclear Weapons opinion clarifies the legal position in a more constructive manner. The ICJ points out that the protection of the environment intended by the responsibility rule cannot be understood as an absolute barrier that allows for no derogation. It shows that within the framework of the law of warfare a special regime has been elaborated which concretizes the general rule prescribing to take care of the environment. Obviously, on the other hand, environmental concerns have to be taken into account when one interprets and applies the rules of that special regime, in particular when assessing the criteria of necessity and proportionality. Additionally, the ICJ stresses that under the 1977 Additional Protocols an outer limit has been traced that is insurmountable: under no circumstances may military action cause widespread, long-term and severe environmental damage (AP I, Articles 35(3), 55). In other words, the primary determinative element is the primary rules that allow or prohibit specific conduct. The lawful or unlawful nature of a given act or omission cannot be assessed solely on the basis of the effects which it entails. In any event, the responsibility rule is not a rule of strict liability. Similar considerations apply to attempts to base compensation claims on alleged violations of human rights.48 Just one drastic example may 44

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 236, at 242, para. 29. 45 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7, at 41, para. 53. 46

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Order of 13 July 2006, para. 72. 47 48

See also Kiss/Shelton (note 7), at 1132 et seq.

See Aminzadeh (note 18), 231-265; S. F. Leroy, Can the Human Rights Bodies be Used to Produce Interim Measures to Protect Environment-Related Human Rights?, 15 Review of European Community & International Environmental Law 66-81 (2006).

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suffice: it cannot be denied that human beings whose territory is threatened with being flooded have to fear for their lives. The physical impact on their very existence needs no explanation. However, human rights build a wall of defence against State interference. In all the environmental cases that are relied upon in academic writings, in particular the Spanish case of López Ostra49 and the British case of Hatton v. UK,50 it was clearly the negligence of a specific government that was blamed for the injury caused.51 Human rights do not protect the individual against natural causes, nor can the individual stand up against universal society as a whole. Thus, the instrument of the U.S. Alien Tort Claims Act can be of no great help either, even less so since the United States tops the list of GHG emitters.52 Unavoidably, one is reminded of Article 28 of the Universal Declaration of Human Rights, which proclaims that “[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”. Never has this proclamation been understood as a programmatic rule that could possibly be included in one of the two International Covenants. It remains an ideal, because its fulfilment is dependent on a multitude of contingent factors which cannot be guaranteed within an authoritative legal framework. It is one of the “rights” for which Spanish terminology has coined the notion derechos imposibles.53 Also in this connection, it is highly instructive to turn to the advisory opinion of the ICJ in the Nuclear Arms case. Quite understandably, the enemies of nuclear weapons had argued that this type of weapon must 49

ECHR, López Ostra v. Spain, Judgment of 9 December 1994, Appl. No. 16798/90. 50

ECHR, Hatton v. UK, Judgment of 8 July 2003, Appl. No. 36022/97 (Grand Chamber). 51

From the more recent jurisprudence see ECHR, Leon and Agnieszka Kania v. Poland, Judgment of 21 July 2009, Appl. No. 12605/03, para. 98. 52

This is the avenue recommended by E. A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal, 155 University of Pennsylvania Law Review 1925-1945 (2007). For a study of possible causes of action under U.S. law see Grossman (note 21), 1-61. 53

N. P. Sagués, Desafíos de la jurisdicción constitucional en América Latina, Revista electrónica Foro Constitucional Iberoamericano, at 6, available at .

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be considered unlawful because it was incompatible with human life: unavoidably, the effect of nuclear weapons could not be confined to elements of the armed forces of the parties involved, but would also take the lives of civilians not taking part in the armed conflict. The Court answered this argument by holding that armed conflict was governed in the first place by the rules that regulate the conduct of hostilities as lex specialis, recognizing the notion of collateral damage. Only in later pronouncements did the Court specify in greater detail its additional holding that the protection provided by the International Covenant on Civil and Political Rights does not cease in time of war: the right to life is not totally displaced, but remains in the background as a guiding principle and can be resorted to for the interpretation of the special regime.54 The same lesson as that regarding environmental protection can be drawn here: the fact that a certain social interest or good enjoys international protection does not mean that it is immune to any interference and that any such interference amounts to an act giving rise to reparation claims.55

D. Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law It is instructive in this connection to turn to the project on injurious consequences caused by acts not prohibited by international law. For more than two decades the ILC struggled with that topic which it had put on its agenda on the assumption that liability does not arise solely from wrongful acts, but may also be entailed by activities that are carried out in consonance with the established rule that every State is free to use its territory as it sees fit. In fact, it seems quite plausible that liability may have as its origin other legal principles, in particular principles of fairness, equity, and equality. During that long period when different special rapporteurs submitted sophisticated reports56 it was de54

See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, at 178, para. 106; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 216. 55

See J. H. Knox, Climate Change and Human Rights Law, 50 Virginia Journal of International Law 163, at 165 (2009). 56

Quentin-Baxter, Barboza, Rao.

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bated time and again whether the legal characterization of unlawfulness attaches to the act or omission setting in motion the chain of events, or whether the resultant effect should be the determinative criterion.57 Given the lack of agreement on this issue, it was decided in July 1992 to tackle the topic in stages, the first stage being focused on the prevention of harm.58 Eventually, in 2001 the ILC adopted draft rules on “Prevention of Transboundary Harm for Hazardous Activities”59 which, by their very nature as a forward-looking strategy, do not touch upon reparation as a means to deal with occurrences of the past. After having completed its work on prevention, the ILC continued its work on the second part of the topic, again using the original title “International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law” (with the complement: “International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities”). Eventually, the drafting process came to its conclusion in 2006 when the ILC adopted “Draft principles on the allocation of loss in the case of transboundary harm arising out of transboundary activities”.60 This draft is characterized by significant limitations ratione materiae. First of all, it is meant to be a non-binding declaration of draft principles.61 Generally, it is couched in prudent language, invariably using the soft “should” form instead of relying on the word “shall”, which linguistically stands for binding commitments. The ILC also wishes to make clear that its draft principles do not pertain to the class of rules on State responsibility. It emphasizes that State responsibility may be entailed if a State does not comply with its duties of prevention. Additionally, the word “reparation” is avoided. The text confines itself to suggesting that victims should receive compensation. Lastly, the ILC also points out that its articles are not suitable for the 57

See C. Tomuschat, International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law – The Work of the International Law Commission, in: T. Scovazzi/F. Francioni (eds.), International Responsibility for Environmental Harm, at 37-72 (1991). 58 59

See ILC Report, UN Doc. A/56/10, at 144, para. 82 (2001). Id., at 146.

60

ILC Report, UN Doc. A/61/10, at 106, para. 66 (2006). For a critical comment on the earlier 2004 draft see C. Foster, The ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities: Privatizing Risk?, 14 Review of European Community & International Environmental Law 265-282 (2005). 61

General commentary, ILC Report, UN Doc. A/61/10, at 113, para. 11.

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problems connected with the global commons.62 In sum, the ILC takes the view that outside the classic field of State responsibility, where a breach of an international rule triggers reparation claims, it is left to States’ discretion to establish a regime that should be fair and equitable.63 But even to that limited extent, the ILC refrains from making any proposals as far as the global commons are concerned. Given these circumstances, it would be truly hazardous to speculate on the existence of an opinio juris. It should be added that the General Assembly has given a lukewarm reception to the draft principles on the allocation of loss. The ILC had recommended that the General Assembly “endorse” the principles. However, in Resolution 61/36 of 4 December 2006, the General Assembly limited itself to “taking note” of the draft principles. When the issue was debated a year later, the decision was taken to postpone discussion to 2010. 64 For the observer, there can be no doubt that governments are reluctant to bind themselves, albeit no more than morally, to certain principles in a field where tremendous financial burdens are at stake.65

E. Causation The traditional rules on State responsibility furthermore presuppose a direct chain of causation. Article 31 ARS confines itself to stating that the injury must have been “caused by the internationally wrongful act”. Developments which take their course over different stages have never been recognized as acts entailing a duty of reparation. In the ILC’s commentary, one finds a convincing display of evidence showing that remote or unforeseeable consequences do not bring a reparation claim into being.66 In general, the cause must be proximate. In the case of global warming, one does not find such a direct link. No individual action produces a harmful effect. Global warming is engendered by paral-

62 63 64 65 66

Id., at 112, para. 7. For a critical assessment see Kiss/Shelton (note 7), at 1140. GA Res. 62/68 of 6 December 2007. See Handl (note 9), at 121.

Crawford (note 24), at 204. See also B. Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale, at 182 et seq. (1973).

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lel activities of all societies of the world, and the link between global warming and the harmful effects proper – climate change – is not an automatic sequence. Thus, for the application of the traditional rules of State responsibility an important element would be missing.

F. Change of Perspective in Light of New Scientific Insights? Could one argue that as from the time that the greenhouse effect of carbon dioxide was discovered all the nations of the world were warned? In fact, they learned that by expanding the volume of their harmful emissions they were engaging in a hazardous activity likely to entail injury for other States. In fact, as from a given moment, when the specialists had done their work and reached some kind of consensus on the conclusion that specific anthropogenic substances led to global warming, which on its part brought about negative consequences, the factual situation changed. The excuse has become moot that nothing or very little is known about the chain of causation linking human activity to the threatening end result. Now, in the first decade of the 21st century, we live in a different world where the veil of ignorance67 has lost its protective effect. The question remains, however, what consequences should be drawn from this finding. As shown above, international law has evolved rules regarding the liability of States for causing harm in bilateral relationships. A State will become liable to make reparation if, as a consequence of activities on its territory, actual damage is inflicted on another State. This is the lesson of the Trail Smelter arbitration award and has been confirmed by an extensive jurisprudence of international courts and tribunals. But we are faced here with a totally different situation where all States of the world engage in a more or less similar fashion in activities that do not damage another State that is specifically identified, but inflict injury on the global commons. A legal prohibition must be supported by societal condemnation of the activity in question. Conduct that is generally practiced by every member of the international community and which States do not reject as unacceptable cannot possibly

67 The term is used here in a sense different from the connotation it has in the work of J. Rawls, A Theory of Justice, at 136 (1971).

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be considered as truly outlawed de jure and giving rise to reparation claims.

G. A Different Approach The lesson of the preceding considerations is simple. The problems caused by global warming cannot be adequately dealt with on the basis of the rules of State responsibility.68 To sum up: specific relationships between wrongdoing States on the one hand and victim States on the other hand cannot be discovered. The international community has not yet grown up as an independent actor who could make reparation claims as the guardian angel of the global commons. Additionally, the observer is unable to witness the violation of any relevant international obligations. Accordingly, a different philosophical basis must be found. Without attributing blame or praise, it should content itself with establishing an objective balance sheet and purport to determine on that basis what share of the globe’s resources may legitimately be claimed by the different peoples, acting through their governments. Different factors have to be evaluated in this calculation. On the one hand, the proposition can hardly be challenged that every human being has the same right to the existing natural resources that have no specific territorial connection.69 Vainly would one try to explain why, as a matter of principle, a U.S. citizen should have more extensive rights to emit greenhouse gases than an inhabitant of the Central African Republic or of Afghanistan. On the other hand, however, the existing de facto situation cannot be ignored. The growth of the industrialized world has shaped realities that have also contributed to the general welfare of all peoples of the world. Relegating modern industrialized societies to the status of an agricultural subsistence economy is impossible. They would never accept such a death sentence. Fairness and equity require that the existing situation 68

The author agrees with B. Baker Röben, Civil Liability as a Control Mechanism for Environmental Protection at the International Level, in: F. L. Morrison/R. Wolfrum (eds.), International Regional and National Environmental Law, 821, at 822 et seq. (2000) (addressing environmental damage in general). 69

In that respect, the author agrees with E. Neumayer, In Defence of Historical Accountability for Greenhouse Gas Emissions, 33 Ecological Economics 185, at 186 (2000).

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also be taken into account.70 In this connection, regard must also be had to the simple truth that in northern countries a great deal of the GHG emissions is due to heating: many parts of the northern hemisphere would become uninhabitable during the winter if minimum temperatures inside buildings could not be maintained. To that extent GHG emissions are part of an indispensable survival strategy, while in many or even most countries of the south such natural threats do not exist. In this regard, a further distinction is necessary. On the one hand, the atmospheric layer has already reached a high degree of concentration of greenhouse gases. As far as the past is concerned, the industrialized societies bear a historic responsibility. They must agree to make some kind of reparation for the excessive benefits they have drawn from the natural opportunities they have used in good faith, without being aware that they in fact exceeded their fair share of the world’s capacities. On the other hand, calculations for the future will have to rely on mobile, adaptable criteria that reflect the actual production and consumption patterns of every single State. It would not be wise to continue granting developing countries an absolutely privileged position, by abstaining from demanding any kind of sacrifice on their part. The future must be committed to the conscious responsibility of all peoples. They all must know that their existence is at stake. Only then will it be possible to establish a cooperative management of the absorptive capacity of the atmosphere, guided by the precautionary principle.71 This means, however, that the arduous path of treaty negotiation[s] must be embarked upon. Humankind as a whole must become aware of its responsibilities

70 A whole book on the parameters to be followed in shaping such a regime has been written by S. Vanderheiden, Atmospheric Justice. A Political Theory of Climate Change (2008). See also N. B. Bekkhus, Kyoto and Beyond, International Burden-Sharing in the Fight Against Climate Change, 61 Studia Diplomatica 177 et seq. (2008); S. Cane, Cosmopolitan Justice, Responsibility, and Global Climate Change, 18 Leiden Journal of International Law 747-775 (2005); Matsui (note 35), at 79. 71 See L. Boisson de Chazournes, Precaution in International Law, in: Law of the Sea, Environmental Law and Settlement of Disputes (note 7), 21-34; Knox (note 55), at 168, 212-218; R. Wolfrum/J. Friedrich (eds.), The Framework Convention on Climate Change and the Kyoto Protocol, in: U. Beyerlin/P.-T. Stoll/ R. Wolfrum (eds.), Ensuring Compliance with Multilateral Environmental Agreements, 53, at 54 (2006).

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and must accept them. Copenhagen cannot be avoided.72 To resort to the rules on State responsibility seems like a lawyer’s trick, a shortcut to the desired goal; lacking support at the grassroots level, it cannot be successful.

72

Obviously, the Copenhagen Accord of 18 December 2009, decision -/CP.15, cannot be hailed as a great success. But it leaves the door open for further negotiations.

Measures to Fight Climate Change – A Role for the Law of the Sea? Michael Bothe

1. Introduction The excessive man-made greenhouse effect that is generally supposed to bring about climate change in the form of global warming has a number of different reasons. There is a balance sheet of greenhouse gas emissions and of the sequestration of these gases by sinks. The Kyoto Protocol deals with this problem by selecting, in order to reduce the greenhouse gas concentration in the global atmosphere, a particular part of the problem, namely emissions of greenhouse gases from the territory of the developed industrial States listed in Annex I to the UNFCCC and sinks which function due to measures taken by these States. These emissions and activities are a significant contribution to the problem of climate change, but not the only one. In particular the oceans of the world have remained outside the purview of the KP. However, these oceans as well as activities carried out on the oceans have diverse impacts on the greenhouse gas concentrations in the atmosphere, and thus on the phenomenon of global warming. On the other hand, the phenomena of global warming have an impact on the biological processes taking place in the oceans. The interface between the oceans and the atmosphere is complex. Not all chains of causation it involves are yet fully understood. The lawyer interested in creating or understanding a legal regulation of a natural phenomenon has to ask where there is a human impact on these chains of causation and where or how law can best regulate this human impact. The problems to be dealt with in this paper are, thus, the following ones:

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_2, © Springer-Verlag Berlin Heidelberg 2011

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− What are the specific chains of causation we have to address concerning the role of the oceans within the global natural processes which determine the world’s climate? − Which are the specific human activities which have to be addressed? − Which are the particular rules pertaining to the law of the sea or to other areas of the law which regulate the activities in question? The natural processes which are relevant for our purposes are the following:1 The oceans are the major carbon sink on earth;2 that means that they absorb more carbon dioxide than they emit, thus significantly reducing the overall carbon dioxide content of the atmosphere. The ensuing question is whether and how this process can be influenced (positively or negatively) by human activity and whether there are legal standards for such activity. The legal standards might be influenced by an answer to the question whether the absorption of CO2 into sea waters – desirable as it may be because of its positive climatic effect – also entails negative environmental consequences. Secondly, capture and storage of CO2 produced by human activities is an important option for avoiding its emission into the atmosphere. The deep sea is one of the storage sites currently under discussion. Would such deep sea storage be compatible with applicable international legal rules? If so, under what conditions? Third, human activities in sea areas (shipping, oil production) cause greenhouse gas emissions. Are there legal rules limiting such emissions? As in the case of many new problems facing the international community, there is a problem of organising the reaction of that community to the problem in question. There is a proliferation of international institutions. Thus, it has to be asked which parts of the international administrative set-up (international organisations, treaty bodies) contribute to the solution of the problem.

1

See S. N. Krohn, Twenty Thousand Leagues Under the Sea: On the Legal Admissibility of Strategies to Mitigate Climate Change by Ocean Sequestration, in: M. Bothe/E. Rehbinder (eds.), Climate Change Policy, 183-216, at 185 et seq. (2005); R. Rayfuse/M. G. Lawrence/K. M. Gjerde, Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Sea Uses, 23 International Journal of Marine and Coastal Law 297-326 (2008). 2

Krohn (note 1), at 185.

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The UN General Assembly has dealt with the problem within its general consideration of “Oceans and the Law of the Sea”.3 The omnibus resolution adopted under this title provides an interesting overview of disparate international activities in this field, but it would be an exaggeration to speak, in this regard, of coordination or guidance by the GA. Other UN organs also have addressed the problem, in particular UNEP.4 Various UN specialised agencies5 deal with various aspects of the problem, and so do certain treaty bodies.6 Specific coordinating bodies have been created between these and other institutions.7 In practice, the central institution is the IMO. The coordination between these institutions and their activities is problematic despite the fact that there are usages of coordination. There is also the question of the relationship between various relevant treaty regimes, in other words a specific case of the fragmentation of international law.

2. The Oceans as Carbon Sink – Protection of Their Functions The absorption of carbon dioxide by the sea is due to two different processes, called solubility pump and biological pump.8 As to the former, there is a rapid transfer of carbon dioxide from the atmosphere into the water through wave action which is effective down to a depth of approximately 100m. This solubility of CO2 increases with decreasing water temperature and vice versa. This means that the rise of temperatures due to climate change negatively affects the function of the sea as a carbon sink. This is a kind of self-acceleration of the greenhouse effect. 3 4 5

GA Res. 63/111 of 5 December 2008. United Nations Environment Program. UNESCO, IMO (International Maritime Organisation).

6

Examples are the Conferences of the Parties to relevant treaties, such as the London Dumping Convention and the Convention on Biological Diversity (CBD), see below. 7 A central role is played by the IPCC (Intergovernmental Panel on Climate Change). As to relevant aspects of marine science, there is GESAMP (Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection). 8

Krohn (note 1), at 186.

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The latter effect, the biological pump, is due to phytoplankton activity similar to the carbon absorption by plants on land. In the upper layers of the sea, phytoplankton converts carbon dioxide into organic carbon through the effect of sunlight and inorganic nutrients. About 20% of this organic carbon is transported into deeper waters and thus, at least for a long time, withheld from the atmosphere. That process, too, may be affected by climate change. Higher wind speeds triggered by climate change affect the vertical transportation of water masses, thus bringing more sunken organic carbon up, which diminishes the capacity of higher water layers to absorb CO2.9 As a result of the phenomena just described, as newer studies show,10 the function of the ocean as carbon sink has been seriously impaired. The relevant legal rules which could contribute to limit this negative trend must address the temperature change. They belong to climate change law, i.e. the UNFCCC regime, or to the law relating to air pollution. The law of the sea contains no rules on these phenomena. But it does possess certain rules for some other natural processes that are relevant and that we have now to address.

3. The Oceans as Carbon Sink – Enhancing Their Function The negative developments just described obviously raise the question how the function of the oceans as carbon sink could be preserved or even enhanced. A measure under discussion in this respect is to push the biological pump by seeding iron particles as inorganic nutrient into the sea (ocean fertilization). This would then increase phytoplankton activity, which leads to more CO2 being absorbed.11 The overall environmental effects of such a procedure are, to say the least, highly controversial.12 Some scientists doubt whether the intended result could be

9

Science Daily, available at , last visited 16 November 2009. 10 11

Science Daily, id. Krohn (note 1), 188 et seq.; Rayfuse/Lawrence/Gjerde (note 1), at 302 et

seq. 12 Wikipedia, Iron fertilization, available at .

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achieved at all at a price which is commercially feasible,13 so the positive effects claimed would be an illusion. Other experts point to possible negative consequences like harmful algal blooms, deep water oxygen depletion, explosions of jellyfish populations or severe disturbances of the food chain of whales. The procedure also raises a number of legal questions. The first problem to be addressed is whether the Law of the Sea Convention provides an answer to them. An important aspect is whether ocean fertilization would belong to the freedom of the high seas. The enumeration of the freedoms in Article 87 UNCLOS is not exhaustive.14 Other activities are also admissible, not only traditional ones like the use for military purposes, but also new ones, always provided that they are exercised with due regard for the interest of others. A difference may consist in the fact that the traditional freedoms are egoistic activities, while ocean fertilizing could be considered as an altruistic activity, undertaken in the interest of preserving the global climate. This difference invites an a fortiori argument for the admissibility. But the altruistic character of the activity cannot lay aside environmental concerns. A further question is whether ocean fertilization carried out by one State in the EEZ of another is admissible. It requires the consent of the coastal State if it is an “activity for the economic exploitation … of the zone” in respect of which the coastal State has sovereign rights (Art. 56 (1)(a) UNCLOS). As ocean fertilization is an activity which exploits certain properties of living organisms found in the waters of an EEZ, one can well argue that it is a right reserved to the coastal State. Turning to special treaty regimes, the Kyoto Protocol does not provide an incentive to use ocean fertilization under its mechanisms. National activities related to sinks can only be credited to a State’s greenhouse gas reduction commitment in the case of sinks on land.15

13 Will Ocean Fertilization to Remove Carbon Dioxide from Atmosphere Work?, Science Daily, 10 April 2003, available at ; Ocean Fertilization ‘Fix’ for Global Warming Discredited by New Research, Science Daily, 30 November 2007, available at http://www.sciencedaily.com/releases/2007/11/071129132753.htm. 14

C. E. Pirtle, Military Uses of Ocean Space and the Law of the Sea in the New Millenium, 31 Ocean Development & International Law 7-45, at 15 (2000). 15

Art. 3 (3) Kyoto Protocol (KP).

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The first relevant treaty regime is that of the (London) Dumping Convention of 197216 and the Protocol thereto of 1996.17 As matter is brought into the sea, this could constitute “dumping” prohibited under Art. 4 of the London Protocol. However, the definition of dumping excludes18 “placement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of this Protocol …” Ocean fertilization is not a mere disposal of the particles. But is the “placement” of those iron particles contrary to the aims of the Dumping Protocol? This is a difficult question, and the debate within the competent organs established under the Dumping Convention has been somewhat controversial. It would appear that a placement is contrary to the aims of the Protocol if it has adverse environmental effects19 which are similar to those of waste disposal. If this is a correct assumption, the ensuing question is what the environmental effects of ocean fertilization, considered in an overall balance sheet, are. Here, we encounter a situation of uncertainty. A plausible reaction to that uncertainty is to apply the precautionary principle and not to undertake such fertilization until the environmental consequences are better known. In this sense, the Meeting of the Contracting Parties to the London Convention and the London Protocol (MOP LC-LP) adopted a resolution to the effect that no ocean fertilization activities should take place, except research:20

16

London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 120, 11 ILM 1294 (1972). 17

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 7 November 1996, 36 ILM 1 (1997). 18 19 20

See Rayfuse/Lawrence/Gjerde (note 1), at 313. Cf. Rayfuse/Lawrence/Gjerde (note 1), at 316.

Res. LC-LP.1 (2008) of 31 October 2008; against this exception de lege lata Rayfuse/Lawrence/Gjerde (note 1), at 316 et seq., but for a regulated exception in the same sense de lege ferenda at 320 et seq.

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(The Meeting) … Noting that knowledge on the effectiveness and potential environmental impacts of ocean fertilization is currently insufficient to justify activities other than legitimate scientific research; … 3. Agree that in order to provide for legitimate scientific research, such research should be regarded as placement of matter for a purpose other than a mere disposal thereof … 4. Agree that scientific research proposals should be assessed on a case-by-case basis using an assessment framework to be developed by the Scientific Groups under the London Convention and Protocol; 5. Agree that the aforementioned assessment should include, inter alia, tools for determining whether the proposed activity is contrary to the aims of the Convention and the Protocol; This is a pragmatic approach to the problem. It would indeed be a disproportionate and therefore incorrect application of the precautionary principle if Art. 4 of the Protocol were interpreted as excluding all research. The resolution is not legally binding, it does not dispose of the legal question, but it may pave the way for such a solution. In this sense, referring in particular to the said resolution, an assessment made by the German Ministry of Education and Research has come to the result that an experiment conducted in a small area of the Southwest Atlantic is indeed lawful as it conforms to all relevant scientific standards of precaution.21 The Convention on Biological Diversity (CBD)22 is another relevant treaty regime. According to Art. 4 CBD the Convention applies not only to elements of biodiversity situated on the territories of the contracting parties, but also to all activities undertaken under the jurisdiction or control of the parties regardless of where their effect takes place. Activities undertaken by or under the control of Contracting Parties at sea thus fall within the jurisdictional scope of the Convention. As ocean 21

R. Wolfrum, Zusammenfassung der Gutachten zum deutsch-indischen LOHAFEX-Experiment im Südwestatlantik sowie abschließendes Votum, available at . 22

5 June 1992, 1760 UNTS 79; 31 ILM 818 (1992).

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fertilization has an impact on biological processes taking place in the oceans, the Conference of the Parties to the CBD has indeed dealt with the question, generally in the same sense as the MOP LC-LP, but in a more restrictive way, as it would allow research only in the coastal waters of a State Party.23 The expert advice given to the German Ministry of Education and Research just mentioned stresses the obvious fact that this resolution is not binding and that therefore the said restriction is not mandatory. The restriction is difficult to justify as the reasons for abstaining from, or engaging in, research on ocean fertilization are not different whether the research takes place inside or outside the territorial sea. The relevant UNGA resolution24 is also not binding. It takes note of the two resolutions just mentioned without addressing the difference between the uttering of the CBD and that of the LC-LP treaty bodies. Turning to regional treaties on the protection of the marine environment, we must first mention the strictest regime, namely that of the Antarctic.25 This is all the more appropriate as the processes which are at issue, namely the increase of phytoplankton activity, are of particular relevance for the Southern Oceans. Art. 4 of Annex IV to the Environment Protection Protocol contains a prohibition which is slightly different from the one of the Dumping Protocol just quoted: “The discharge into the sea of any … chemical or other substances, in quantities or concentrations that are harmful to the marine environment, shall be prohibited.” Whether this covers ocean fertilizing depends on whether it is considered “harmful to the marine environment” or not. Possible negative consequences have been mentioned. In the light of the existing uncertainties concerning the detrimental effects of the procedure, an interpretation in the light of the precautionary principle would suggest that it is indeed prohibited, probably also with the exception of carefully circumscribed research.

23 24 25

Res. IX/16 C, 19-30 May 2008. GA Res. 63/111 of 5 December 2008.

Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1455 (1991).

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Under the other regional conventions,26 the legal situation would be similar to that under the London Dumping Protocol. All this shows that despite the fragmentation of applicable international legal rules, the actual legal rules are not necessarily different. This is due to the fact that there is some interconnection between the epistemic communities which relate to the various treaty regimes, a phenomenon which can also be observed in other contexts.27

4. The Oceans as Carbon Sinks – Negative Environmental Impact? Newer studies seem to show that an increasing absorption of CO2 by the oceans (to the extent it is not compensated by the processes just described) causes an acidification which has negative impacts on marine life,28 for instance on the food chain of corals which may lose the capacity to produce the calcium needed for their growth. In other words, an effect which is desirable from the point of view of the fight against climate change (and arguably even required by Art. 4 (1)(d) UNFCCC),29 may be detrimental from the point of view of preserving marine biodiversity. There may thus be a tension between two different regulatory regimes, which by the way exists in a similar manner in relation to carbon sinks on land. The compatibility of certain land use, land use change and forestry (LULUCF) activities, which can enter into the cal26

Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, 16 February 1976, revised 10 June 1995, Art. 3 (4)(b), 34 ILM 1542 (1995); (OSPAR) Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, Art. 1 (g)(ii), 32 ILM 1069(1993). 27

M. Bothe, Urheberrecht und “traditionelles Wissen”. Fragmentierung und Konkordanz im Völkerrecht, in: R. M. Hilty/J. Drexl/W. Nordemann (eds.), Schutz von Kreativität und Wettbewerb, Festschrift für Ulrich Löwenheim, at 19-30 (2009). 28

Ocean Acidification, Wikipedia, available at . 29

“All Parties … shall … (d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems”.

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culation of net greenhouse gas emissions,30 with the Biodiversity Convention is questionable.31 In the case of ocean biodiversity, there can be no conflict with the KP as ocean sinks are not included in the latter. But there may be some tension between the duty to promote sinks, including marine sinks, provided by Art. 4 (1)(d) UNFCCC, and the duty to preserve marine biodiversity. All this is an example of how the fragmentation of international law affects treaty making and treaty implementation. It does at times lead to tensions between different treaty regimes. But treaties are usually made, and treaty bodies produce secondary rules, with due regard to other treaty regimes. This may lead to synergetic effects32 or mutual supportiveness between treaty regimes.33

5. The Oceans as Carbon Storage Site Carbon capture and sequestration (CCS) has become a major issue.34 The use of the oceans as carbon storage site has to be distinguished from the function of carbon sink. The latter is a natural phenomenon; the former is the artificial injection of CO2 into deeper waters with a view to prevent these gases from getting back into the atmosphere. It may take the form of dissolution of CO2 in deep waters or of the creation of artificial lakes of liquid CO2 on the seabed.35 The environmental consequences of this method are also controversial.

30

Art. 3 (3) KP.

31

A. Caparrós Gass/F. Jacquemont, Biodiversity and Carbon Sequestration in Forests: Economic and Legal Issues, in: Bothe/Rehbinder (eds.) (note 1), 149182, at 169 et seq. 32

See Res. IX/16 of the CBD COP, Annex II: “Indicative List of Activities by Parties to Promote Synergies Among the Rio Conventions”. 33 M. Sanwal, Trends in Global Environmental Governance: The Emergence of a Mutual Supportiveness Approach to Achieve Sustainable Development, 4 Global Environmental Politics 16-22 (2004). 34

Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting Parties to the 1996 Protocol on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1971, LC 30/16, 9 December 2008, sec. 5, at 23 et seq. 35 IPCC Special Report on Carbon Dioxide Capture and Storage, 298 et seq (2005).

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In respect of CCS as well, it has to be asked, too, whether it is covered by the freedom of the high seas. Some authors claim that the freedoms of the high seas generally do not comprise dumping of wastes.36 Inherently harmful activities should indeed be excluded from the scope of those freedoms. The counter-argument would be, on the other hand, that CCS is not inherently harmful. Where the proposed storage site is situated in an EEZ one has to consider CCS as an “activity for the economic exploitation … of the zone” in respect of which the coastal State has sovereign rights (Art. 56 (1)(a) UNCLOS). The status of CCS under the KP is clear: If carbon dioxide produced on the territory of an Annex I Party (i.e. a developed country) is captured and stored somewhere, this is credited to the reduction obligation of that Party because this particular mass of CO2 is not emitted into the atmosphere. Nevertheless, in the negotiation papers for the Copenhagen COP/MOP of UNFCCC and the KP, there were proposals to address carbon capture and sequestration as possible objects of projects financed through the Clean Development Mechanism (CDM),37 i.e. projects financed by developed countries reducing CO2 emissions or promoting sinks in developing countries where this reduction is then credited to the limitation or reduction commitment of the financing country. For the reasons indicated, it should be clear that the use of CCS for CDM purposes could only relate to carbon dioxide not originating from the financing country, otherwise a reduction would be calculated twice. The negotiation proposals went into different directions. One proposal simply excludes any CCS from CDM. Another one would at least exclude ocean sequestration. Yet a third one would open the possibility also for ocean sequestration, provided that some conditions were met. These conditions include verification, environmental impact assessment and liability, but also “issues of international law”. In the light of the latter condition, the problem of the obligations under the Dumping Conventions would have to be solved before ocean CCS became admissible. In contradistinction to ocean fertilizing, this is mere disposal of CO2 and therefore constitutes “dumping” within the meaning of the London Dumping Protocol and of the dumping prohibitions contained in the various regional seas regimes. This type of CO2 dis36

W. Graf Vitzthum, Raum und Umwelt im Völkerrecht, in Graf Vitzthum th (ed.), Völkerrecht, 387-489, at 436 (4 ed. 2007). 37

Ad hoc Working Group on Further Commitments for Annex I Parties under The Kyoto Protocol, FCCC/KP/AWG/2009/10/Add.3/Rev.3, 16 November 2009, paras. 5-8.

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posal would therefore require an amendment to these various treaties.38 Both under the London Dumping Protocol and under the North-East Atlantic (OSPAR) Convention, the problem has been solved by prohibiting the storage of carbon dioxide streams in the water column or on the seabed,39 while permitting storage under certain conditions in geological formations below the seabed.40 In the case of the London Dumping Protocol, this was achieved by an Amendment to the Protocol,41 under the OSPAR Convention by amendments to Annexes II and III.42

6. Shipping as a Source of Greenhouse Gas Emissions The CO2 emissions from shipping are sizeable, in absolute terms they are more than double those caused by air traffic. The exact figures of emissions from shipping are somewhat controversial. According to some reports, they account for 4%, according to newer studies even 4.5%,43 of the global greenhouse gas emissions. The figure given by the latest IMO study is somewhat lower.44 In comparison, the share of air traffic is lower, only 2%. In terms of emission per transported weight shipping emissions are of course much lower than those of air traffic. Yet due to their size, they present a problem which cannot be neglected. The problem is particularly serious as a considerable growth of maritime transport is prognosticated, although it has been slowed down as a consequence of the financial crisis. This could bring the emission share 38

See for the Convention for the Protection of the Marine Environment of the North-East Atlantic the Summary Record of the Meeting of the OSPAR Commission, 28 June-1 July 2004, Annex 12, at 4. 39 40 41

OSPAR decision 2007/1, 25-29 June 2007. OSPAR decision 2007/2. Adopted 2 November 2006, entry into force 10 February 2007.

42

Amendments to the Annexes are adopted by a majority decision of the Commission, but are thereafter subject to the requirement of acceptance by States Parties, Art. 15, 17 of the Convention. 43

True scale of CO2 emissions from shipping revealed, The Guardian, 13 February 2008, available at . 44 Prevention of Air Pollution from Ships, Second IMO GHG Study 2009, Doc. MEPC 59/4/7, 6: 3.3%.

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of maritime transport to much higher levels, namely in the order of 12% and 18%.45 Emissions from shipping are not part of the national inventories of greenhouse gas emissions which are the object of the limitations imposed the KP upon the developed industrial States (Annex I States). The Protocol leaves the question of greenhouse gas emissions from shipping to the law of marine transportation, i.e. to regulation by the International Maritime Organization (IMO).46 Various options concerning the inclusion of these emissions in a post-Kyoto treaty were considered in the preparation of CP 15 in Copenhagen, but the CP did not take any action. The Subsidiary Body for Scientific and Technological Advice (SBSTA) requested IMO to report on further work regarding these questions.47 Thus, IMO will continue to play a major part in their regulation.48 In 1997, the Marine Environment Protection Committee (MEPC) of IMO had started to deal with the issue. In 2000, IMO published a first report on greenhouse gas emissions from ships, and in 2009 the “Second IMO GHG Study”. If the regulation took the form of a legally binding treaty, it would be an amendment to Annex VI of MARPOL49 which deals with pollution from ships. Such an amendment has not (yet?) been achieved. Regulatory approaches, however, are in the process of being elaborated.50 The task is more complex than in the case of air pollution from ships caused by certain contaminants. Pollution by sulphur oxides, for instance, can be controlled by regulating the sulphur content of bunker fuels. The limitation of CO2 emissions can be achieved by a better energy efficiency of sea transport which, however, is difficult to determine. There are a number of parameters for it: fuel consumption, weight of cargo, distance travelled. Thus, the IMO developed an indexing system containing these fac45 46 47

Prevention of Air Pollution from Ships, id., at 7. Art. 2 (2) KP. UNFCCC/SBSTA/2009/8, 9 et seq.

48

See also UNFCCC, Ad hoc Working Group on Long-term Cooperative Action, Report, 20 November 2009, Doc. FCC/AWGLCA/2009/14. 49

Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978, 1340 UNTS 61; 17 ILM 546 (1978). 50

Prevention of Air Pollution from Ships, , see inter alia IMO Assembly Res. A.963(23) of 5 December 2003.

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tors.51 This is still in the trial phase. There is no obligatory or recommended formula. As long as no obligatory or at least recommended practice for increasing the energy efficiency of sea transport exists, the question of unilateral measures by States is on the table. But measures by which State? Any State is entitled to subject the ships flying its flag to emission control measures. The EU could impose upon its members a duty to use their rights as flag States accordingly. In the absence of a universal international regulation, however, this flag State approach would deepen the problem of out flagging and of flags of convenience. The problem of evading stringent regulation would be less acute in the case of measures to be taken by a port State, in particular if these measures were uniform throughout the EU. Redirecting cargo to ports of convenience would not be practical in this case. The first step which could be taken by port States is an offer of services which would lead to a decrease of fossil fuel consumption by ships, such as the use of, and connection to, on-shore power supply. Then the question arises, however, what type of control port States may exercise. Could it levy, for instance, a tax on the parameters just mentioned? A recent study presented at the Rostock Law of the Sea Colloquium a few weeks ago answered this question, with some hesitation, affirmatively.52

7. Conclusions The role which the oceans and activities carried out at sea play in the regulation of the global climate, i.e. in fighting, slowing or accelerating climate change, is essential. The oceans are an important, if not the most important, carbon sink. They are considered as a site of carbon storage. Activities on the seas significantly contribute to emissions causing the greenhouse effect. Not all natural processes which determine this role are entirely understood. It is no surprise that international law has so

51

Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Use in Trials, issued in 2005. 52

S. Schlacke, „CO2-Reduzierung in der Seeschifffahrt: nationales Recht und Europarecht“, Vortrag anlässlich des 17. Rostocker Seerechtsgesprächs, Universität Rostock, November 2009, forthcoming. She asks whether, and denies that, such a tax would constitute an exercise of extraterritorial jurisdiction.

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far only partly regulated this important aspect of the fight against climate change. Thus, a lot needs to be done. In the fight against climate change, law needs to be innovative. The KP is innovative, indeed. However, the regulatory deficits which we encounter as to the physical role of oceans for the world’s climate call for action.53 Some steps taken or envisaged, however, rather look like a few well known old sins. Those who carry out activities on land which account for more than 90% of the emissions causing the greenhouse effect, tend to neglect the impact they have on the seas. Ocean fertilization is a variation of the idea of tinkering with large scale natural processes which, if considered realistically, are, however, beyond human control – it is just gambling. There is also the old myth of the unexhaustible character of the resources of the sea, long proven false as far as living resources are concerned, now revived for the seas as a storage site. Finally, those who enjoy the freedoms of the high seas have a tendency to avoid the grip of responsible national regulation. Shipping, at least ships flying flags of convenience, might try to avoid being held responsible for their contribution to climate change. This is the old challenge for the law of the sea which continues to be relevant for the most recent challenges: The global commons are for the benefit of the world community, but they must be respected and protected by that community.

53

Rayfuse/Lawrence/Gjerde (note 1), at 324 et seq.

An Agreement in Principle? The Copenhagen Accord and the Post-2012 Climate Regime Jutta Brunnée*

A. Introduction Climate change may well be the major public policy challenge of our time.1 It is planetary in scope and inter-generational in its implications. Perhaps even more importantly, because climate change implicates virtually all production and consumption processes, addressing it requires fundamental changes to the way humans live, everywhere in the world. Climate change, therefore, is also a complex collective action problem. It can only be solved if all states, or at least the main greenhouse gas emitters, cooperate. Furthermore, climate change poses difficult questions of equity, some say of global environmental justice.2 Historically, emissions of greenhouse gases have been far greater in the industrialized world. The emissions of industrialized countries still significantly exceed those of developing countries,3 although the emissions of some * This paper is adapted from Jutta Brunnée, From Bali to Copenhagen: Towards A Shared Vision for a Post-2012 Climate Regime?, forthcoming in 25 Maryland Journal of International Law (2010), and draws on Chapter 4 (Climate Change: Building a Global Legal Regime) in J. Brunnée/S. J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010). 1 See e.g. D. A. King, Climate Change Science: Adapt, Mitigate or Ignore?, 303 Science 176 (2004). 2

For an extensive, interdisciplinary literature review, see S. M. Gardiner, Ethics and Global Climate Change, 114 Ethics 555 (2004). 3

This is true for total, per capita and, especially, historic global emissions. See e.g. K. Baumert/J. Pershing, Climate Data: Insights and Observations, Pew

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_3, © Springer-Verlag Berlin Heidelberg 2011

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large developing countries are projected to continue to rise sharply over the next two decades.4 By 2006, China had surpassed the United States as the largest national emitter of greenhouse gases.5 But China’s per capita emissions remain far lower than those of the United States or the European Union.6 In turn, the effects of climate change are likely to disproportionately affect developing countries, many of which are especially vulnerable to such effects.7 Industrialized countries have far greater economic and technological capacity not only to mitigate greenhouse gas emissions, but also to adapt to its consequences.8 The gulf between radically different perceptions of climate change is not easily bridged. For many developing countries, climate politics are part of a larger pattern of historical and economic injustices, leading them to demand that industrialized countries bear the primary burden of combating climate change. By contrast, many industrialized countries insist on developing country participation in climate action as a matter of pragmatic problem solving, or even “fairness.”9 It is against this backdrop that the United Nations Framework Convention on Climate Change (UNFCCC) was adopted in 1992,10 and Center on Global Climate Change, at 4 (share of global emissions), 11 (per capita emissions) and 13 (cumulative CO2 emissions 1850-2000) (2004), available at <www.pewclimate.org/global-warming-in-depth/all_reports/>. 4

Id., at 15-16.

5

See Union of Concerned Scientists, Each Country’s Share of CO2 Emissions, August 2006, available at <www.ucsusa.org/global_warming/science _and_impacts/science/each-countrys-share-of-co2.html>. See also J. Vidal/D. Adam, China overtakes US as World’s biggest CO2 Emitter, The Guardian, 19 June 2007, available at <www.guardian.co.uk/environment/2007/jun/19/china. usnews>. 6

The Climate Group, China’s Clean Revolution, July 2008, available at <www.theclimategroup.org/assets/resources/Chinas_Clean_Revolution.pdf> (noting that “[i]n 2007, China reached a per capita level of 5.1 metric tons compared to the European Union’s 8.6 metric tons and the USA’s 19.4 metric tons”). 7 8

Baumert/Pershing (note 3), at 17-18. Id., at 17-20.

9

See J. T. Roberts/B. C. Parks, A Climate of Injustice: Global Inequality, North-South Politics, and Climate Policy (2007). 10

United Nations Framework Convention on Climate Change, 9 May 1992, UN Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849 (1992) [herein after UNFCCC].

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supplemented by the Kyoto Protocol in 1997.11 However, the Kyoto Protocol imposes emission reduction commitments only on some of the major emitters, and does so only for the period from 2008 to 2012. The meetings of the convention and protocol parties in Copenhagen in December 2009 were to generate at least the broad strokes of a post-2012 regime – a global regime that would commit all major economies to long-term cuts in their greenhouse gas emissions. But the meetings did not go as many had hoped. They produced only a slim document, the “Copenhagen Accord”. The accord was pulled together at the eleventh hour by only five countries (Brazil, China, India, South Africa and the United States) and was then “taken note” of by the 194 parties to the Climate Convention just before their meeting came to a close.12 U.S. President Barack Obama, who had brokered the accord, called it a “meaningful and unprecedented breakthrough.”13 But for many others the outcome was a grave failure, both in the world’s fight against climate change and in the UN climate change regime.14 Quite apart from the substance of the accord, its ultimate fate and its relationship with the climate regime are uncertain. In commentary on the climate negotiations, much attention has been paid to the tug-of-war between China and India on the one hand, and the United States on the other. But the negotiations are not just about who drives the hardest bargain. They are also about “principle” – or, more specifically, agreement on the principles that frame the climate regime is crucial to its evolution. The viability of the climate regime depends at least in part on parties reaching a genuinely shared understanding of its framing principle, common but differentiated responsibilities (CBDR), as well as negotiating a post-2012 agreement that is consonant 11

Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, UN Doc. FCCC/CP/1997/L.7/add. 1, 37 ILM 22 (1998) [hereinafter Kyoto Protocol]. 12

See UNFCCC, Decision −/CP 15, available at [hereinafter Copenhagen Accord]. 13

The White House, A Meaningful and Unprecedented Breakthrough Here in Copenhagen, available at . 14

See e.g. J. Kanter, E.U. Blames Others for ‘Great Failure’ on Climate, The New York Times, 22 December 2009; and D. Bryson, South Africa Blasts Copenhagen Failure, The Associated Press, 22 December 2009, available at .

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with that understanding. The same applies to the precise meaning of the stated objective of the climate regime, which is to avert dangerous climate change. Both the objective and CBDR were enshrined in the Climate Convention, but the treaty text left the underlying scientific and normative controversies unresolved. The efforts to develop a “Shared Vision for Long-Term Cooperative Action”,15 which were launched at a meeting of the parties in Bali in 2007, provide an opportunity to explore how the objective and CBDR have shaped parties’ positions and how, in turn, regime participants have worked to clarify and shift the meaning of those norms. In this short article, I first outline how the CBDR principle has evolved in the climate regime. I show that CBDR has been the regime’s anchor principle, shaping its evolution and accounting at least in part for its resilience. I then evaluate the outcome of the Copenhagen meetings and the initial responses of parties to the Copenhagen Accord in light of the regime objective and the CBDR principle.

B. CBDR and the Climate Regime Before assessing the role of CBDR, it is important to consider another key element of the convention’s conceptual framework, the provision outlining its objective. Together, the objective and CBDR provide the parameters for all actions under the climate regime. Global measures to combat climate change must be capable of meeting the regime’s objective, but they must also be in accordance with the CBDR principle. Similarly, it would not suffice for parties’ actions under the regime to be in conformity with their common but differentiated responsibilities. Taken together, these actions must also measure up to the treaty objective. In the following discussion, I focus on the influence that the objective and the CBDR principle have had on the evolution of the climate regime, rather than on the formal legal requirements that they may entail.

15

UNFCCC, Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, Decision 10/CP.13 (Action Plan), 14 March 2008, UN Doc. FCCC/CP/2007/6/Add.1, para. 1 (a), available at [hereinafter Bali Action Plan].

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I. The Role of the Objective The “ultimate objective” of the Climate Convention “and any related legal instrument” is to achieve a “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Article 1). This objective as such has achieved a taken-for-granted quality in the climate regime. It underpins the Kyoto Protocol, and has framed the negotiations for post-2012 commitments.16 But a stronger shared understanding around the meaning of the objective has emerged only relatively recently.17 The release of the Intergovernmental Panel on Climate Change’s (IPCC) Fourth Assessment Report in 2007 brought a new sense of urgency to the negotiations,18 and provided unequivocal evidence of human-induced climate change.19 Perhaps most importantly, the IPCC findings made clear that global greenhouse gas emissions would have to peak around 2020 and would have to be dramatically re-

16

See e.g. the routine invocation of the objective in the submissions to the Ad-Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) by states, intergovernmental organizations, and non-governmental observers. The submissions made since the AWG-LCA’s first session in March 2008 are available at . 17

See M. Meinshausen et al., Greenhouse-gas emission targets for limiting global warming to 2° C, 458 Nature 1158 (2009) (noting that “[m]ore than 100 countries have adopted a global warming limit of 2° C or below (relative to preindustrial levels as a guiding principle for mitigation efforts to reduce climate change risks, impacts and damages)”). 18 R. B. Alley et al., IPCC 2007: Summary for Policymakers, in: S. Solomon et al. (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, at 5 (2007), available at <www.ipcc.ch/pdf/assess ment-report/ar4/wg1/ar4-wg1-spm.pdf>. A growing chorus of voices warns that even the IPCC’s worst-case scenarios are in fact too conservative and that global climate change is occurring at a much faster rate than expected, in part due to various feedback effects. See Pew Center on Global Climate Change, Key Scientific Developments since the IPCC’s Fourth Assessment Report – Science Brief 2, June 2009, available at <www.pewclimate.org/brief/sciencedevelopments/June2009>. 19 See Alley et al., id., at 2-3 (considering it to be “very likely”, i.e. more than 90% certain, that human impact accounts for these increases).

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duced by 2050 if there was to be a reasonable chance of averting dangerous warming.20 Still, only in 2009 did the major emitting states finally agree to quantify that objective, stipulating that global temperature increases should not exceed 2° C above pre-industrial levels. This consensus was reflected first in declarations of the G8 meeting and of the “Major Economies Forum” (MEF), convened by U.S. President Obama to engage the 17 states that account for roughly 80% of global carbon emissions.21 The 2° C benchmark was also confirmed in the Copenhagen Accord.22 During the Copenhagen negotiations, African and small island states had been pushing for a more ambitious temperature limit of 1.5° C.23 But the accord only calls for an assessment of its implementation by 2015, including “in light of the Convention’s ultimate objective” and “consideration of strengthening the long-term goal”.24 Although the agreement on a temperature target might seem like small progress at first glance, the ramifications are potentially significant. Maximum concentrations of greenhouse gases in the atmosphere can be extrapolated from the temperature target, which in turn permits determination of the timing and extent of the emission reductions required to achieve those concentrations.25 IPCC findings, confirmed by other 20

See T. Barker et al., Technical Summary, in: B. Metz et al. (eds.), Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, 39, at 90 (2007), available at <www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3ts.pdf>. 21

See G8 Leaders’ Declaration: Responsible Leadership for a Sustainable Future, 9 July 2009, para. 65, available at <www.g8italia2009.it/static/G8 _Allegato/G8_Declaration_08_07_09_final,0.pdf>; and MEF, Declaration of the Leaders – The Major Economies Forum on Energy and Climate, 9 July 2009, available at . 22

See Copenhagen Accord (note 12), para. 1.

23

D. Doniger, The Copenhagen Accord: A Big Step Forward, Climate Progress, 28 December 2009, available at . 24 25

Copenhagen Accord (note 12), para. 12.

See here the negotiating position of the European Union, which is constructed precisely in this fashion. See Commission of the European Communities, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of

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analyses, suggest that robust action is urgently needed.26 To have a reasonable chance of meeting the regime objective, greenhouse gas emissions must peak by 2015, followed by significant medium- and longterm emission reductions.27 By 2020, developed country emissions would have to be cut by 25-40%; by 2050, they would have to be reduced by 80-95%.28 In other words, with its central concept quantified, the Article 1 objective provides not just general direction to states’ efforts, but sets a bar against which the credibility of emission reduction commitments can be measured.

II. The Role of CBDR The Climate Convention calls upon parties to protect the climate system “on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities” (Article 3.1). The repeated references to CBDR in the climate regime, including most recently in the Copenhagen Accord,29 confirm that CBDR is the most important among the principles that frame the regime. But it is one thing to enshrine a principle in a treaty, and quite another for that proposition have an agreed meaning. A closer look at the UNFCCC, related sources, and relevant practice reveals that some elements of CBDR are generally agreed upon, while others remain contested. Judging from the submissions by states under the auspices of the Shared Vision process launched in Bali, it seems fair the Regions − Limiting global climate change to 2 degrees Celsius − The way ahead for 2020 and beyond, COM (2007) 2 final, 1 October 2007, at 2 and 9, available at . 26

See Meinshausen et al. (note 17), at 1160.

27

See K. Richardson et al., Climate Change: Global Risks, Challenges & Decisions, Copenhagen 2009, 10-12 March (Synthesis Report), at 18-20, available at . And see Barker et al. (note 20). 28

This is the range of required reductions that was established in the IPCC’s 2007 Report. See R. K. Pachauri/A. Reisinger (eds.), Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, at 66-67 (2008), available at <www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr. pdf>. 29

See Copenhagen Accord (note 12), para. 1.

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to say that there is broad consensus that states have a common responsibility to address climate change,30 that their resulting individual responsibilities should be differentiated,31 and that industrialized countries should take the lead in climate action.32 Much less common ground exists with respect to the criteria for differentiation. Disagreements remain on whether or not historical and per capita emissions are appropriate criteria for differentiation,33 and whether or not CBDR requires industrialized states to provide financial and technical assistance to developing countries.34 Meanwhile, it is generally accepted that capacity differentials, especially between developing and industrialized states, are relevant.35 More recently, there has also been support for differentiation amongst industrialized and developing countries, respectively.36 The latter trend 30

See UNFCCC, Views regarding the work programme of the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention, AWGLCA, 1st Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.1 (2008), available at . See e.g. submission of Singapore therein, at 66, Paper No. 19: Singapore – Work Programme for the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention (stating that “All countries, both developed and developing, have a part to play to address climate change…”). 31

See L. Rajamani, From Stockholm to Johannesburg: The Anatomy of Dissonance in the International Environmental Regime, 12 Review of European Community and International Environmental Law 23, at 31 (2003). 32

See UNFCCC, Fulfillment of the Bali Action Plan and components of th the agreed outcome − Note by the Chair, AWGLCA, 5 Sess., UN Doc. FCCC/AWGLCA/2009/4 (Part II), para. 30 (2009), available at http://unfccc. int/resource/docs/2009/awglca5/eng/04p02.pdf>. 33

See J. Brunnée, Climate Change, Global Environmental Justice and International Environmental Law, in: J. Ebbesson/P. Okowa (eds.), Environmental Law and Justice in Context, 316, at 326-327 (2009). 34

See generally, Rajamani (note 31), at 31.

35

See e.g. T. Honkonen, The Principle of Common But Differentiated Responsibility in Post−2012 Climate Negotiations, 18 Review of European Community and International Environmental Law 257, at 259 (2009) (commenting on the fact that both the UNFCCC and the Kyoto Protocol are explicitly based on the distinction between Annex I (industrialized countries and countries with economies in transition) and non-Annex I (developing countries)). 36 See e.g. Paper No. 2C: France on behalf of the EC − Enhanced national/international action on mitigation of climate change, in: UNFCCC, Ideas and proposals on the elements contained in Paragraph 1 of the Bali Action Plan.

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is of particular interest for present purposes. The Shared Vision negotiations reveal that parties’ understandings are evolving in this respect. Some states reiterated their staunch opposition to differentiation amongst developing countries. Notably, according to China, The principle of “common but differentiated responsibilities” between developed and developing countries is the keystone of the Convention …. Any further sub-categorization of developing countries runs against the Convention …37 Yet, the view that the CBDR principle, as reflected in the climate regime, does not preclude and may even require differentiation within groups, appear to have been gaining ground among both developed and developing country parties.38 For example, Australia argued: There has to be yet further differentiation of responsibilities and capabilities other than highlighting the vulnerability and lack of capacity of some Parties to respond to the impacts of climate change. There is considerable variation in the circumstances of the 191 countries in the UNFCCC. Accordingly, there can be many different approaches to differentiating and grouping countries according to such circumstances.39 Similarly, France submitted on behalf of the European Community that: Submissions from Parties. Addendum, AWGLCA, 4th Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.5/Add.1, at 14 (2008), available at . 37

See Paper No. 5: China – China’s Views on Enabling the Full, Effective and Sustained Implementation of the Convention through Long-Term Cooperative Action Now, Up To and Beyond 2012, in: UNFCCC, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan. Subth missions from Parties, AWGLCA, 4 Sess., UNFCCC Doc. FCCC/ AGLCA/2008/MISC.5, at 34 (2008), available at . 38 But see L. Rajamani, Differentiation in the Post-2012 Climate Regime, 4 Policy Quarterly 48, at 49 (2008) (noting that “most developing countries” are opposed to “efforts to differentiate between them”). 39 Australia – Initial Views on A Long-Term Global Goal for Emission Reductions, in: UNFCCC, Views Regarding the Work Programme of the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention. Submissions from Parties. Addendum, AWGLCA, 1st Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.1/Add.2, at 7-8 (2008), available at .

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… a key issue to explore … is what the principle of CBDR and respective capabilities means for nationally appropriate mitigation action between and within groupings …40 Developing countries focused their remarks primarily on differentiation within their group. For example, Bangladesh stressed the need to: [d]etermine global mitigation targets for post Kyoto climate regime based on common but differentiated responsibility (regarding but not limited to the time paths, peaking years and allowable limits of emission) between the developed and developing countries and within developing countries, between the LDCs and the rest of them.41 Egypt argued that: responsibilities should be seen against the fact that there are different levels of development within developing countries. We therefore call for the inclusion of criterion of income level and growth in the issue of climate change…42 Finally, the Maldives noted that: while the differing national circumstances between developed and developing countries have been acknowledged in Article 1(b)(v) [of the Bali Action Plan], vast differences also exist between many of the developing countries, especially the large ones and the LDCs.43 Notwithstanding the ongoing debates about aspects of the principle, CBDR has been a crucial factor in stabilizing and directing the regime to date. The power of the principle is illustrated, for example, by the in40

Paper No. 1A: France on behalf of the EC – Mitigation, including technology and finance, in: UNFCCC, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan. Submissions from Parties, AWGLCA, 3rd Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.2, at 5 (2008), available at http://unfccc.int/resource/docs/2008/awglca3/eng/misc 02.pdf>. 41 Paper No. 2: Bangladesh – Bangladesh Submission on Bali Action Plan Regarding Work Programme of the Ad-Hoc Working Group on Long-Term Cooperative Action Under the Convention, in: UN Doc. FCCC/AWGLCA/2 008/MISC.1 (note 30), at 10. 42

Paper No. 6: Egypt − Egyptian Submission for Ad-Hoc Working Group on Long-Term Cooperative Action, id., at 23. 43

Paper No. 10: Maldives on behalf of the Least Developed Countries − Bali Action Plan Regarding Work Programme of the Ad-Hoc Working Group, id., at 32.

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ability of the Bush Administration to extricate the United States from the UN regime. Arguably, the US refusal to join the Kyoto Protocol antagonized others at least in part because it appeared to clash with some of the basic ideas that animate CBDR. As noted earlier, the notion that addressing climate change is a common responsibility does appear to be a strongly shared understanding.44 Against this normative backdrop, the US stance was widely seen as unilateralism and so struck a particularly negative chord.45 Similarly, it is no doubt sensible to suggest that all major emitters, including developing countries, must participate for a climate regime to be effective. But the flat refusal by one of the wealthiest states in the world – and at the time also its major carbon emitter – to accept emission reduction commitments, ran counter to the generally shared sense that developed countries should take the lead in combating climate change.46 Under the new administration, the US position was rearticulated. To be sure, the US still insists on developing country participation in an emissions regime. But its proposals are now expressed in terms that are compatible with CBDR. Most importantly, the US stance is no longer phrased as a bald statement that the United States will not take on commitments unless major developing countries do the same. Instead, the argument is that CBDR actually demands, or at least accommodates, differentiation among developing countries,47 suggesting that major developing economies with large emissions must accept some emis44

See also Honkonen (note 35), at 265.

45

Anger at US climate retreat, BBC News Service, 28 March 2001, available at . 46

Indeed, rarely have states as openly expressed their resentment of US climate policy, as did Papua New Guinea’s ambassador for climate change when, reacting to the outgoing Bush Administration’s initial refusal to support the Bali Action Plan on long-term cooperative action, he stated: “[I]f for some reason you’re not willing to lead, leave it to the rest of us. Please get out of the way.” See A. C. Revkin, Issuing a Bold Challenge to the U.S. Over Climate, The New York Times, 22 January 2008 (quoting Kevin Conrad). 47

See e.g. the compilation of party submissions in UNFCCC, Ideas and Proposals on paragraph 1 of the Bali Action Plan, Revised note by the Chair, AWGLCA, 4th Sess. UN Doc. FCCC/AWGLCA/2008/16/Rev.1, para. 22 (h) (2009), available at (citing Australia, New Zealand, the Russian Federation, and the United States for the notion that “[n]ew sight on the differentiation among Parties is required (…), based on recent advances in scientific knowledge and changing social and economic situation in the world …”).

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sions commitments. In other words, the United States has stopped arguing against the basic understandings that anchor the climate regime and has begun to work with the CBDR concept. In turn, major developing countries, especially China and India, have always looked to draw rhetorical power from the convention principles. They worked hard during the negotiations for the UNFCCC to enshrine principles such as equity and CBDR in the convention, and have consistently invoked them in the negotiations for a post-2012 regime.48 Until very recently, China and India consistently refused to contemplate emission reduction commitments. The argument was that pursuant to CBDR only industrialized countries should take on such commitments and that, at any rate, they should take the lead in cutting emissions. But while the latter point resonates with the shared understandings around CBDR, the former fell increasingly out of step with the basic thrust of the principle. Once China and India emerged as major carbon emitters, the CBDR principle began to work against their insistence on complete exemption from emission reductions.49 Instead, the notion of common responsibility actually demands some action by all major emitters. What is more, the most widely shared rationale for CBDR, capacity differentials, suggests that relevant differences amongst developing and developed countries, respectively, should be taken into account. However, even if “historical” contributions to climate change were widely regarded as a criterion for differentiation, CBDR would not completely insulate major

48

See D. Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, 18 Yale Journal of international Law 451, at 501505 (1993). And see e.g. Paper No. 4: China – China’s Comments on the Implementation of the Bali Action Plan, in UN Doc. FCCC/ AWGLCA/ 2008/MISC.1 (note 30), at 18: “In developing … [a shared] vision [for longterm cooperative action], it is important to take into account the principles of equity and common but differentiated responsibilities…” See also Paper No. 3C: India – Government of India Submission to UNFCCC on Long Term Cooperative Action, in UN Doc. FCCC/ AWGLCA/2008/MISC.5/Add.1 (note 36), at 32. 49 This point has not escaped the attention of the new US administration. See G. Kessler, Clinton, Indian Minister Clash over Emissions Reduction Pact, The Washington Post, 20 July 2009 (citing Secretary of State, Hillary Rodham Clinton as stating that she “completely” understood Indian arguments about per capita emissions, but noting that the argument “loses force” as developing countries become the major emitters).

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developing country emitters from emissions-related commitments.50 Both the UNFCCC and the Kyoto Protocol use 1990 as a reference year for emission reductions.51 The emission trajectories of major developed and developing emitters since 1990 militate in favour of the latters’ inclusion in a commitment regime, while reducing the exposure of developed countries with respect to their cumulative emissions.52 Therefore, it has become increasingly difficult for major developing economies with significant carbon emissions to refuse reduction commitments outright. Hence the recent insistence by China and India on the continuation of the Kyoto Protocol, combined with a softening of their stance on emission reductions.53

C. The Copenhagen Accord I. CBDR In order for a post-2012 regime to respect the CBDR principle, developed countries must arguably take the lead on emission reductions through credible mid-term targets, as well as take on commitments that reflect their greater capacity and share of emissions. In turn, major developing countries may initially be required to commit to mitigationrelated actions, but not to actual reduction targets. That said, given their rapidly rising share of global emissions, CBDR is compatible with, and even demands, credible reductions by the major developing country 50

See L. Rajamani, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime, 9 Review of European Community and International Environmental Law 120, at 130 (2000). 51

See UNFCCC (note 10), Article 4.2; and Kyoto Protocol (note 11), Arti-

cle 3. 52 See also Commission of the European Communities, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards a comprehensive climate change agreement in Copenhagen, COM (2009) 39 final, at 5 (2009), available at (submitting that the “accepted Kyoto base year, 1990, should be used as the historical reference point” for further emission reductions by developed countries after 2012). 53

See infra, notes 61-71 and accompanying text.

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emitters, at least in the longer term. Finally, differentiation according to capacity and emissions share suggests that poorer countries or countries with negligible emissions should be subject to considerably less onerous requirements. Notwithstanding the stumbling blocks that parties encountered in Copenhagen, the discernible trends in the climate discussions are broadly consonant with these parameters. It is worth recalling that the 2007 Bali Action Plan for a Shared Vision on long-term cooperative action made only relatively vague references to the urgency of the climate situation and to the need for “deep cuts”.54 At the time, only the working group on further commitments under the Kyoto Protocol acknowledged that developed countries had to achieve a collective emissions cut of 25-40% below 1990 levels by 2020.55 Among the industrialized parties, the European Union alone was on record with a unilateral commitment to achieve a 20% reduction by 2020, while offering a 30% cut provided other states follow suit.56 It was only in the lead-up to the Copenhagen meeting, that other industrialized countries (and some industrializing states) announced various emissions-related commitments that they were prepared to make.57 The most significant move was undoubtedly made by the United States, which had refused to make international emission reduction commitments since it abandoned the Kyoto Protocol in 2001. In November 2009, President Barack Obama declared his administration’s willingness to cut US emissions by 17% below 2005 levels by 2020.58 This shift in position prompted China to come forward with a pledge to reduce the carbon intensity of its economy by

54

See Bali Action Plan (note 15), preamble.

55

See UNFCCC, Report of the Ad-Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol on its resumed fourth session held in Bali, 3-15 December 2007 (Part III: Review of work programme, methods of work and schedule of future sessions), UN Doc. FCCC/KP/AWG/2007/5, para. 16 (2008), available at . 56

See Commission of the European Communities (note 45). And see The European Union thinks it can be a model for the world on climate change: Can it?, The Economist, 15 March 2007. 57

E. Rosenthal/N. MacFarquar, Industrialized Nations Unveil Plans to Rein in Emissions, The New York Times, 20 November 2009. 58 J. M. Broder, Obama to go to Copenhagen with Emissions Target, The New York Times, 25 November 2009.

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40% to 45% from 2005 levels by 2020.59 India followed suit with an intensity-based proposal of its own.60 The positions that parties had taken in the negotiations pursuant to the Bali Action Plan foreshadowed some of the dynamics that played out during the Copenhagen meetings. Given that Copenhagen was to yield commitments to concrete emission reductions or, for developing countries, to other “actions” on climate change,61 it is not surprising that parties ran up against a number of “crunch issues”. It became apparent that many developing countries saw a continuation of the Kyoto Protocol as essential to the further development of the climate regime. Some developing states, notably small island states, were intent on maintaining the only instrument that contained legally binding emission reduction commitments by industrialized countries.62 Others, led by China and India, maintained that Kyoto enshrined the only acceptable approach to differentiation, distinguishing as it did between industrialized states that had binding emission reduction commitments and developing countries that did not.63 By contrast, most industrialized countries 59

E. Wong/K. Bradsher, China Joins U.S. in Pledge of Hard Targets on Emissions, The New York Times, 26 November 2009. 60

R. Lakshmi, Moves by U.S., China induce India to do its bit on climate, The Washington Post, 2 December 2009. 61 For industrialized states, the Bali Action Plan contemplates “nationally appropriate mitigation commitments and actions, including quantified emission limitation and reduction objectives,” whereas for developing countries it envisages only nationally appropriate “mitigation actions.” See Bali Action Plan (note 15), paras. 1 (b)(i) & (ii). 62

See e.g. Proposal by the Alliance of Small Island States (AOSIS) for the Survival of the Kyoto Protocol and a Copenhagen Protocol to Enhance the Implementation of the United Nations Framework Convention on Climate Change, in: UNFCCC, Ideas and proposals on the elements contained in paragraph 1 of the Bali Action Plan, AWGLCA, 8th Sess., UNFCCC Doc. FCCC/AWGLCA/2009/MISC.8, at 15 (2009), available at . And see, generally, L. Rajamani, The Copenhagen Agreed Outcome: Form, Shape & Influence, Centre for Policy Research (CPR) Climate Brief, at 2 (2009), available at . 63

See e.g. “Kyoto Principles” crucial in climate talks: China, Reuters, 14 November 2009, available at . And see Big developing countries form climate change front, Reuters, November 29, 2009, available at .

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wished to see Kyoto replaced by a single, comprehensive instrument with appropriately differentiated commitments for all countries, including emission-related commitments by the major developing economies.64 Hence, the fate of the Kyoto Protocol became entangled in the underlying questions of principle. The UNFCCC’s stark distinction between parties listed in Annex I to the convention (industrialized states and countries with economies in transition) and parties not so listed (developing countries), and the Kyoto Protocol’s application of this distinction to emission reduction commitments, were seen by some key developing countries as a bulwark against efforts to single out certain developing economies due to their growing greenhouse gas emissions. The Bali Action Plan had weakened the bulwark, replacing the distinction between Annex I and non-Annex I states with a more open-ended distinction between developed and developing countries.65 Nonetheless, for many developing countries, the Action Plan maintained at least a “fire-wall” against further differentiation and, therefore, against exposure of developing countries to international emission reduction requirements.66 The future of the Kyoto Protocol remains uncertain. A Danish proposal that would have set the post-2012 climate regime on a single instrument track was leaked to the press shortly after the beginning of the Copenhagen talks.67 Developing countries, led by a small but determined group of states that were widely seen to operate with at least the backing of China and India, resisted the formal introduction of the text 64

L. Rajamani, The “Cloud” Over the Climate Negotiations: From Bangkok to Copenhagen and Beyond, CPR Climate Brief, at 2-3 (2009), available at ; and D. Bodansky, The Copenhagen Climate Change Conference: A PostMortem, 12 February 2010, at 3, available at . 65 See Bali Action Plan (note 15), paras. 1 (b)(i) & (ii). And see C. Spence et al., Great Expectations: Understanding Bali and the Climate Change Negotiation Process, 17 Review of European Community and International Law 142, at 150 (2008) (commenting on the subtle, but significant shift in the language of the Action Plan). 66 67

See Rajamani (note 64), at 2.

See J. Vidal, Copenhagen climate summit in disarray after ‘Danish text’ leak, The Guardian, 8 December 2009, available at .

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into the negotiating process.68 The fact that the proposal seemed to have been developed in consultation with only the United States and the United Kingdom antagonized many developing countries, as did the fact that its content appeared to reflect industrialized country preferences.69 While the Danish proposal appeared designed to lead to a replacement of the Kyoto Protocol, the Copenhagen Accord leaves the issue unmentioned.70 And yet, the accord is indicative of a significant softening in China and India’s resistance to emissions-related measures. After all, the document envisages not only “quantified economy-wide emissions targets for 2020” by Annex I parties, but also “mitigation actions” by non-Annex I parties – a genuine “first” in the climate regime.71 However, equally important is the fact that the accord commits industrialized countries to providing “new and additional resources … approaching USD 30 billion for the period 2010-2012,” and to mobilizing “USD 100 billion a year by 2020 to address the needs of developing countries”.72 Broadly speaking, the Copenhagen Accord is consistent with the CBDR principle. At first glance, the fact that the accord was finalized by only a small number of states and only subsequently acknowledged by all parties to the climate regime may appear to undercut the notion of “common responsibility”. Many developing countries insisted on maintaining the consensus approach to decision-making that had become the default practice in the climate regime, and were outraged by the lack of access to and transparency of the negotiations that produced the Copenhagen Accord.73 That said, according to observers of the ne68

See D. Bodansky, The Illegitimacy of “Legitimacy”, Opinio Juris, 17 December 2009, available at . 69

See Vidal (note 67).

70

Reportedly, an earlier draft of the document was unacceptable to developing countries because of a preambular statement affirming parties’ “firm resolve to adopt one or more legal instruments”, thereby acknowledging the possible demise of the Kyoto Protocol. See J. Watts, What was agreed at Copenhagen – and what was left out, The Guardian, December 19, 2009. 71 72 73

Copenhagen Accord (note 12), paras. 4 and 5. Id., para. 8.

See J. Drexhage, Copenhagen: A memorable time for all the wrong reasons?, International Institute for Sustainable Development, at 2 (2009); available at .

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gotiations, it was in fact a relatively small number of developing countries that blocked consensus decision-making at a number of crucial junctures, while many other developing countries were desperate to make progress in the negotiations.74 Furthermore, while the Copenhagen Accord may have ruffled feathers in part because it was announced by the U.S. President before it had been released to, let alone sanctioned by, the parties to the climate convention,75 it did appear to have had the support of the leaders of key industrialized and developing parties from around the world.76 If, procedurally speaking, the Copenhagen Accord was squeezed out from between a rock and a hard place, its substance is more in line with the idea of common responsibility. The major developing countries did ultimately yield to a key demand of most industrialized states and agreed to commit themselves internationally in the same instrument, albeit a non-binding one.77 Furthermore, notwithstanding the negotiation of the accord by a small group of states, it was intended by the drafters to operate in the context of the UNFCCC. It declares itself to be guided by the convention principles, including CBDR.78 It also envisages drawing on the convention to implement a number of its key provisions. For example, the Conference of the Parties is to adopt guidelines for the measuring, reporting and verification of Annex I emission reductions and financing, as well as for national communications by non-Annex I countries on their actions.79 Similarly, in the context of the 74

See Drexhage, id.; Bodansky (note 67); D. Bodansky, Sleepless in Copenhagen, Opinio Juris, 19 December 2009, available at ; Doniger (note 23). 75

See Drexhage, id.

76

See Bodansky (note 64) (citing involvement by 29 parties, “including the United States, the European Union …, China, India, Brazil, South Africa, the UK, France, Germany, Denmark, Australia, Canada, Japan, Russia, Grenada (on behalf of AOSIS), Ethiopia (on behalf of the African Union), Lesotho (for the least developed countries), Papua New Guinea (for the Coalition of Rainforest Countries), Saudi Arabia (for OPEC countries), Sudan (for the G-77), Algeria, Bangladesh, Colombia, Gabon, Indonesia, the Maldives, the Republic of Korea and Mexico”). 77

See Doniger (note 23) (observing that such a development would have been unthinkable only a year earlier, and that China and India would not have agreed to the accord had it been legally binding). 78 79

See Copenhagen Accord (note 12), preamble and para. 1. Id., paras. 4 and 5.

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funding commitments by developed countries, the accord envisages a “Copenhagen Green Climate Fund,” to be “established as an operating entity of the financial mechanism of the Convention”.80 As for the idea of differentiated responsibilities, the accord draws clear distinctions between industrialized and developing countries. It reverts to the rigid categorization of states as “Annex I” and “non-Annex I”, and separates the commitments of these two groups of parties. Furthermore, Annex I parties opt into the Copenhagen Accord by registering their target pledges in one appendix to the accord, and developing countries by inscribing their emissions intensity pledges in another.81 Finally, in the accord, developed countries commit to the provision of significant resources to developing countries. The accord, therefore, reflects the insistence of key developing countries on differentiation between industrialized and developing countries. But it also suggests that the idea of differentiation among developing countries is taking hold. Within the group of “non-Annex I parties”, the accord singles out least developed countries and developing nations that are especially vulnerable to climate change. Notably, whereas non-Annex I states “will implement” mitigation actions, least developed and small island developing countries “may undertake actions voluntarily and on the basis of support”.82 The accord also identifies “the most vulnerable developing countries, such as the least developed countries, small island developing States and Africa” as priority recipients of adaptation funding.83

II. The Convention Objective When measured against the objective of the climate regime, the Copenhagen Accord fares less well. To be sure, it declares itself to be in pursuit of the objective, and endorses the 2° C temperature goal.84 As of mid-February 2010, it had also succeeded in attracting the support of some 100 states (including the 27 members of the European Union) ac-

80 81 82 83 84

Id., paras. 8 and 10. Id., para. 4. Id., para. 5. Id. Id., preamble and paras. 1 and 2.

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counting for over 80% of global greenhouse gas emissions.85 However, collectively, the reduction pledges made by Annex I countries in the lead-up to the Copenhagen meetings have been calculated to promise a reduction between only 13% and 19% below 1990 emissions.86 Although significant, these pledges remain considerably below the reduction range said to be required to meet the convention objective. Given that the parties’ submissions pursuant to the Copenhagen Accord track these earlier pledges,87 it is evident that the accord will not live up to the objective of the climate regime. In fact, recent estimates suggest that the most ambitious emissions pledges for 2020 by developed countries combined with those made by China and India put the world on track for a temperature increase of at least 3.2° C by 2100.88 As for a long-term target, the G8 Declaration of 2009 indicates that major developed countries were prepared to accept an 80% emissions cut by 2050, so long as all countries commit to achieving a 50% reduction in global emissions.89 A similar approach was supposed to find expression in the MEF declaration, but was ultimately rejected by the developing country members of the forum, led by China and India.90 They 85

See US Climate Action Network, Who’s On Board With The Copenhagen Accord, available at (providing an overview on national submissions in relation to the Copenhagen Accord). 86

See K. Levin/R. Bradley, Comparability of Annex I Emission Reduction Pledges, World Resources Institute Working Paper, at 2 (2009), available at . 87

The “Information provided by Annex I Parties relating to Appendix I of the Copenhagen Accord” (concerning their quantified economy-wide emissions targets for 2020) and the Information provided by non-Annex I Parties relating to Appendix II of the Copenhagen Accord (concerning nationally appropriate mitigation actions) can be accessed at UNFCCC, Information provided by Parties to the Convention relating to the Copenhagen Accord, at . For a helpful overview, see also US Climate Action Network (note 85). 88

See N. Höhne et al., Copenhagen Climate Deal – How to Close the Gap, Briefing Paper, Ecofys & Climate Analytics, at 6 (2009), available at . 89 90

See G8 Leaders’ Declaration (note 21).

See A. Doyle, Reuters, Major economies consider halving world CO2, 25 June 2009, available at (reporting a draft text according to which the MEF supported “an

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were not satisfied with the draft text on mid-term targets for developed countries, which merely declared that the latter would “undertake robust aggregate and individual mid-term reductions in the 2020timeframe”.91 Instead, developing countries demanded Annex I commitments in the 25%-40% range indicated by the IPCC.92 The issue could not be resolved in Copenhagen, given the far more modest range of industrialized country commitments. An earlier draft of the Copenhagen Accord had contained a global goal to reduce emissions by 50% by 2050, with an industrialized country pledge of 80%.93 The relevant passages were reportedly dropped due to developing country concerns that they implied their commitment to long-term emissions cuts,94 as well as implied that developing country emissions would have to peak and decline before 2050 to achieve that goal.95

D. Conclusions The ultimate fate of the Copenhagen Accord and its relationship to the climate regime are difficult to predict. Earlier drafts had envisaged that the accord would be converted into a legally binding instrument within a year’s time. But the relevant text was dropped, apparently in the face of resistance by some states, including China, India and Saudi Arabia.96

aspirational goal of reducing global emissions by 50 percent by 2050, with developed countries reducing emissions by at least 80 percent by 2050” and declared that developed states would “undertake”). 91

Id.

92

See P. Wintour, Developing countries urge G8 to impose 40% emissions cut by 2020, The Guardian, 10 July 2009. 93

See D. Biello, Draft text of new “Copenhagen Accord”, Scientific American – Observations, 18 December 2009, available at . 94

See C. Holly, Disappointed Climate Delegates “Take Note” Of Vague Greenhouse Accord, The Energy Daily, 19 December 2009, available at ; and Drexhage (note 73), at 3. 95 96

Bodansky (note 64), at 5.

See Bryson (note 3); and Pew Center on Global Climate Change, Summary of COP 15 and CMP 5 prepared by the Pew Center on Global Climate

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As it stands, the text of the accord assumes that it will operate under the auspices of the Climate Convention. Indeed, without decisions by the convention’s plenary body on measuring, reporting and verification as well as on the Green Climate Fund the accord will not be fully operational. However, given the explicit refusal of some convention parties to support the accord,97 it is not clear that these decisions can in fact be taken in the consensus system of the climate regime, let alone that the accord could be converted into a binding instrument. An alternative scenario is that the blockages caused by the convention’s consensus decision-making will prompt major emitters to move the Copenhagen Accord out of the UN regime, perhaps into the MEF. While perhaps tempting in view of the dynamics that played out in Copenhagen, this move may not be as plausible as it may appear at first glance. Since climate change implicates all states, whether they are significant carbon emitters or primarily victims of climate change, a “coalition of the willing” approach in which emitters decide unilaterally how to tackle a global problem is unlikely to be legitimate. It runs counter to the widely shared sense that cooperation to combat climate change is a common responsibility of all states. Hence, the universality of the UN regime is one of its key strengths and helps explain its longevity. That said, universality also poses challenges, especially when combined with consensus decision-making. While, superficially, consensus decision-making may seem conducive to creating shared ground, its great weakness is that a small number of states can effectively prevent even a large majority of parties from acting on their shared intentions. Consensus decision-making has long plagued the climate regime. Indeed, it is the very thing that has prevented parties from adopting a decisionmaking rule that would provide for the fall-back option of majority decision-making that is common in most multilateral environmental agreements.98 Ever since 1995, when Papua New-Guinea first proposed a three-fourths majority-vote option, it has proven impossible for the

Change (2009), available at . 97

A small number of parties, currently comprising Cuba, Ecuador, Kuwait and Nauru specifically indicated that they will not associate themselves with the accord. See UNFCCC (note 87); and US Climate Action Network (note 85). 98 See P. Széll, Decision Making under Multilateral Environmental, 26 Environmental Policy and Law 210 (1991).

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convention parties to reach agreement on this voting rule.99 The current voting practice puts the climate regime at a crossroads.100 Ironically, it may also be at odds with the common responsibility dimension of the CBDR principle that anchors the regime, and so may threaten to undermine its legitimacy. The convention preamble’s admonition that “the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response” rings as true as ever. As the decision-making issue illustrates, the CBDR principle implicates not only the substance of the climate regime, but also the process through which it is developed. At this juncture, a new decision-making rule is part of what is needed to re-align the climate regime with its guiding principle and it is to be hoped that the Copenhagen experience was a sufficient shock to jolt parties into the necessary action. If moving outside of the UN regime is unlikely to be a viable option for a long-term agreement on climate action, then what of regrouping within the regime and completing the mandate of the Bali Action Plan? This route is certainly open, as two parallel decisions under the convention and Kyoto Protocol, respectively, were adopted in Copenhagen that extend by one year the formal negotiations towards an agreed outcome on a post-2012 climate regime.101 These decisions were acknowledged in the Copenhagen Accord,102 and some of its supporters now appear to be retrenching to the UNFCCC as the hub for the future development of the climate regime. For example, in their submissions to 99

See Drexhage (note 73), at 2. And see International Institute for Sustainable Development (IISD), Summary of the Copenhagen Climate Change Conference: 7-19 December 2009, Earth Negotiations Bulletin Vol.12 No. 459, at 4 (2009), available at . 100

See A. Doyle, Analysis − G20, U.N. vote reform could help climate deal, Reuters, 12 February 2010, available at (commenting on the voting system). 101

See UNFCCC, Draft Decision −/CP.15, Outcome of the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention, para. 1, available at ; and UNFCCC, Draft Decision −/CMP.5, Outcome of the Ad-Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, para. 2, available at . 102

See Copenhagen Accord (note 12), preamble.

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the UNFCCC Secretariat, China and India reiterated the mitigation pledges that they had made prior to the Copenhagen meeting. But these pledges are made “in accordance with the principles and provisions of the UNFCCC, in particular Article 4, paragraph 7”, and without reference to the Copenhagen Accord.103 What is more, neither country explicitly “associated” itself with the accord,104 as envisaged by that instrument. Continued negotiations towards one or more agreements under the convention umbrella would certainly not be easy, especially if the current voting system prevails. Some parties are hoping to see the Shared Vision process come to a successful conclusion by the next meeting of the parties at the end of the year in Mexico.105 But many seasoned observers are sceptical of the chances that the remaining differences can be bridged in the near term.106 Be that as it may, it is worth remembering that the UN climate regime has been written off before, notably when the United States refused to join the Kyoto Protocol. And yet, it has proven resilient. My argument in this article has been that, aside from the universality of the regime, its grounding in widely shared principles is an important source of strength. The regime objective is a yardstick for the credibility of global climate action, while the CBDR principle provides a yardstick for the fairness of the associated burden sharing. Together, the objective and CBDR help define what it takes to build a legitimate climate regime. The Copenhagen Accord, whatever its eventual fate may be, is an important way station in the meandering evolution of the global climate regime. Clearly, the difficulties of the Copenhagen meeting resulted in good part from the reluctance of parties to make ambitious emissionrelated commitments. But they were also fed by the continuing disagreements about important aspects of the principle of common but differentiated responsibilities. A viable post-2012 agreement must arguably be consistent with that principle, as well as with the UNFCCC objective. Only then will the foundations exist for specific commit103

See China, Letter including autonomous domestic mitigation actions (28 January 2010); and India, Letter including India’s domestic mitigation actions (30 January 2010), both at . 104

See US Climate Action Network (note 85).

105

See e.g. UK’s Brown says climate change agreement possible, The Times of India, January 4, 2010. 106

See e.g. Bodansky (note 64), at 10.

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ments that are legitimate and capable of generating a sense of commitment. Measured against this yardstick, the Copenhagen Accord represents important progress some respects, but also falls significantly short in others. The accord does reflect the core elements of the CBDR principle. Indeed, in relation to CBDR, the accord represents a flawed but nonetheless important step towards a shared understanding on the meaning of the principle, especially as it relates to differentiation among developing countries. Given the deficiencies in the process that led to the accord, parties must now closely consider the vision of CBDR that it contains. That vision must be embraced by industrialized and developing states, rather than just “noted”, if a genuinely shared understanding on fair burden sharing is to emerge. By contrast, in relation to the regime objective, there does appear to exist a widely shared understanding that temperature increases must be held to 2° C, and potentially less.107 But given the emissions-related pledges made by key states to date, it is clear that the accord will not live up to the requirements of the objective. This shortfall seems to be at odds with the importance that governments and people around the world now attach to climate change, as evidenced by the fact that over 100 heads of state and government attended the Copenhagen meetings.108 In short, the Copenhagen Accord, faces a significant credibility gap. Presumably that is why U.S. President Obama and others have described it as a first step.109 It may be tempting to dismiss the Bali Action Plan’s call for a “shared vision” for long-term climate action as empty rhetoric. But it stands to reason that the success of the global climate regime is not guaranteed by a mere “deal” among key participants. As I hope to have illustrated, the contours of such a deal are intertwined with the overall objective and core principle of the climate regime. Both have shaped the negotiations and the positions that parties have taken. In turn, parties progressively

107

See supra notes 23-24 and accompanying text.

108

It is perhaps for this reason that U.S. President Obama has described the Copenhagen Accord as a “first step.” See The White House (note 13). See also UN says Copenhagen deal “a start”, BBC News, 19 December 2009, available at . 109

See The White House (note 13). And see e.g. UN says Copenhagen deal “a start”, BBC News, 19 December 2009, available at .

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fleshed out the meaning of the regime objective and their interventions under the auspices of the Action Plan reveal concerted efforts to maintain or shift, as the case may be, the meaning of the CBDR principle. The Copenhagen Accord may be best understood not as a makeshift solution to climate change but as a barometer for the evolving normative understandings in the climate regime.

The Reluctance of the United States to Ratify Treaties Fred L. Morrison1

In December 2009 we witnessed the failure of states at the climate conference in Copenhagen to conclude a formal treaty regulating emissions of greenhouse gasses. Instead, a non-binding Copenhagen Accord2 was concluded. It was a significant disappointment to many Europeans, who had wished for a binding international agreement, and for many international lawyers, who did not see the accord as a real legal instrument. Many factors contributed to the failure of the anticipated formal protocol, but one of them was the unwillingness or inability of the United States to make binding legal commitments in treaty form. Increasingly, the United States of America has looked to alternatives to formal treaties as a basis for international agreements. This shift is primarily due to the difficulty of obtaining formal assent to ratification of formal international treaties from the United States Senate. In order to continue to address issues of international concern despite these problems, the United States is using alternative instruments and processes to replace formal treaties. The failure of the United States to ratify formal treaties has frequently frustrated other states and their international negotiators. The United States has participated in the negotiation of various international agreements, actively seeking concessions to meet its interests. But frequently, even after those concessions are made, it has not ratified those 1

The author wishes to thank Joshua Fisher, a third year student at the University of Minnesota Law School, for his assistance in the preparation of this paper. 2

UN Doc. FCCC/2009/L.7.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_4, © Springer-Verlag Berlin Heidelberg 2011

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agreements. Several of the agreements under discussion in this volume are examples. The United Nations Convention on the Law of the Sea3 was concluded in 1982, but the United States has not ratified it. The Convention on the Transnational Movement of Hazardous Waste4 was concluded at Basel in 1989, but the United States has never ratified it. The Kyoto Protocol5 to the climate change treaty was concluded in 1998, but the United States has not ratified it and is unlikely to do so before its provisions expire. This failure to ratify treaties has extended far beyond the environmental area. The first major example was its rejection of the Versailles Convention, a decision which effectively excluded the United States from participation in the League of Nations. It has included the rejection of the original International Trade Organization Charter,6 one of the keystones of the proposed post-World War II economic strategy, even though that document had been proposed in large part by American economists. The “unsigning” of the Statute of the International Criminal Court is another example.7 Other general international instruments have been ratified only sluggishly and with great hesitation. The United Nations Covenant on Civil and Political Rights,8 which the United States ratified only after a quarter century and with five reservations, five understandings, four declarations, and a proviso, is another example of American hesitation fully to take on international legal obligations.9 Ratification is, of course, a legitimate step in the process of entering into a treaty obligation. It is more than a mere formality. By ratifying a treaty the highest political organs of the state agree to conform the state’s actions to the requirements of the treaty, thus limiting the range of choices open to them and their successors. Ratification takes place at home, in a calm atmosphere, outside of the excitement of the negotiat3 4 5

1833 UNTS 3 (1982). 1637 UNTS 57, 28 ILM 649 (1989). 2302 UNTS 148, 37 ILM 22 (1998).

6

J. Jackson/J-V. Louis/M. Matsushita (eds.), National Constitutions and International Economic Rules, at 1-2 (1984). 7 8 9

E. T. Swaine, Unsigning, 55 Stanford Law Review 2061 (2003). 999 UNTS 171, 6 ILM 383 (1967).

F. L. Morrison, Gustav III and the Masked Ball: Different Approaches to Freedom of Expression, in: De Lege, Årsbok Juridiska Fakultaten Uppsala, 129, at 140-143 (2009).

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ing conference. It allows political leaders the opportunity to reexamine and reweigh the advantages and disadvantages of the concluded agreement. In the era before modern communications, ambassadors were sent to negotiate agreements with only very general instructions. They had to make their own judgments about the content of the proposed provisions of the agreements and could not readily check with their political masters about the acceptability of various formulations. That review could come only after the entire instrument was concluded and a copy was taken home. Then the political leaders made a decision on whether to accept the package presented or not. After the invention of the telegraph that became decreasingly the case. Ambassadors could inform their political masters of the status of negotiations and the content of proposals and could receive tactical and substantive instructions on a daily basis. Instructions have become increasingly detailed and frequent. The real decisions are now made in national capitals, not over the conference table. So, in most instances, the political decision of the foreign affairs leadership of a government to accept a compromise has already been taken by the time that the ambassador signs the treaty instrument at the conclusion of a conference. If a state finds itself unable to ratify significant international instruments, it must look to alternative means of conducting its international relations. As the avenue of formally binding international treaties has been gradually closing for it, the United States has sought other ways of participating effectively in international affairs. Those alternatives will be explored later in this paper.

A. The Dual Nature of Ratification Ratification of treaties has two aspects, international and domestic. The international aspect leads to the creation of a binding international norm between the parties: pacta sunt servanda. The international law governing this aspect is now primarily articulated in the United Nations Convention on the Law of Treaties,10 commonly known as the Vienna Convention, although customary law continues to govern in some circumstances. Indeed, the Vienna Convention itself is one of the treaties that the United States has not ratified. The United States has neverthe10

1155 UNTS 331 (1969).

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less relied heavily on its provisions, considering most of them to be a restatement of the governing customary international law. The international aspect is reasonably straightforward. Under the Vienna Convention, ratification takes the form of the exchange or deposit of an instrument of ratification prepared by or under the authority of a head of state. Article 46 of the Convention provides: 1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.11 Thus, for the purposes of international law, a foreign state would normally be entitled to rely upon an assurance from another state that constitutional requirements have been met. Its only obligation is to act in good faith; it is not required to review the constitutional law of its counterparty in any great detail. This provision may produce some complexity, for it creates the possibility that even though a treaty is validly ratified as a matter of international law it may be void as a matter of domestic law, because mandatory constitutional provisions of that state have been violated. In such situations, a government might not be able to carry out the mandates of the treaty, but might also be in breach of its international obligations for failing to do so. The domestic aspect of ratification lies within the constitutional structure of each nation state. It may take the form of specific provisions of a constitutional document or be in the form of significant unwritten constitutional norms and customs. This domestic aspect has two different facets. One is identification of the individuals or bodies whose approval is necessary before ratification can take place. The other is determination of the effect that the treaty will have in the domestic law of that state. Is it directly effective in domestic law or does some implementation legislation need to be adopted? The domestic aspects of ratification can be much more complex than the international ones. They depend on the particular constitutional arrangements of the country in question. The rules may be relatively simple and straightforward or formidably complex. As article 46 of the 11

Id., Art. 46.

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Vienna Convention clearly provides, the foreign international lawyer is not held to know them or to question the good faith of a government offering a ratification. The domestic political leader, however, cannot lightly ignore the constitutional limits. Thus it is possible that a nation will vigorously negotiate favorable terms in a treaty, only to find that it cannot achieve ratification. While foreign international lawyers may be excused from a detailed examination of the ratification processes of participant nations, their diplomatic representatives and negotiators should understand the limits under which their counterparts operate. This is especially the case when the international instrument is of a nature that itself requires broad or nearly universal adherence in order to function properly. Most environmental agreements, as well as agreements that seek to codify and develop international law, fall into this category. If any significant actor does not participate in one of these conventions, the efficacy of the instrument will be impaired for all. The question is not simply one of formal ratification of the instrument by one country as a matter of international law, but also of the ability of that country to take the steps necessary to implement it. Domestic constitutional systems for allocating ratification functions fall into three broad categories. In some states ratification of an international agreement is seen as a purely executive matter, so the legislature is not formally involved. In others, there must be acceptance of the instrument by some process that generally parallels the legislative process, at least in so far as the instrument would create new domestic legal standards. In a third group of states, there are more complex and difficult processes for ratification. The first group includes the United Kingdom and a few other countries. In these states treaties remain part of the prerogative powers of the executive branch. This prerogative is a remnant of the age of royal authority in which the monarch controlled all aspects of foreign relations. After a treaty is negotiated, its terms will be reviewed within the government and the instrument of ratification will be signed. The major limitation on the treaty-ratifying process in these states is political. Most of them have parliamentary systems. To remain in office the government must have continuing political support from the majority of the legislative body. There is also a legal aspect of this limitation. Most of these countries have a dualist approach to international law, so the government would need the approval of the legislature to enact any domestic legislation that may be necessary to implement the agreement. In a par-

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liamentary system, with strong party discipline, this support can be assured. A second group of countries are those in which the legislative body is directly involved in the treaty-ratifying process, but the standards for approving the instrument are similar to those for enacting ordinary legislation, usually simple majority of the legislative body. For example, the constitutions of France12 and Germany13 both provide that many treaties may be ratified only when approved by an ordinary law. They do, however, have some exceptions that do not require legislative action and some treaties may require additional processes before ratification can take place.14 Here again, if those states have parliamentary systems, the government will hold a majority in the legislative body and will be able to obtain permission to ratify the instrument that may be necessary and will also be able to adopt any implementing legislation. If the state has a presidential or similar system, in which the government does not necessarily command a legislative majority (or in which the legislative process is more complex, e.g., bicameral), there may be a greater problem. Finally, there are countries, like the United States, with complex constitutional processes that make the ratification of formal treaties especially difficult. In these states the executive branch of government, which is responsible for the negotiation of the treaty, does not necessarily command the necessary votes of the legislative body to assure ratification. In these states there is a built-in resistance to incurring international obligations.

B. The Legal and Political Constraints on Treaty Ratification in the United States System The United States Constitution vests the authority to ratify treaties in the President of the United States, but he may do so only with the advice and consent of two-thirds of the Senate.15 A treaty, once ratified, is

12 13 14 15

France, Constitution of the [Fifth] French Republic, Art. 53. Germany, Basic Law, Art. 59, para. 2. France, Constitution of the [Fifth] French Republic, Art. 54. US Constitution, Art. II, sec. 2., para. 2.

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automatically part of the “supreme law of the land”.16 Some treaties are, however, found to be non-self-executing, requiring additional domestic legislation to bring their provisions into the domestic legal order.17 The United States Constitution is a product of the end of the 18th century. It was drafted in 1787, taking effect in 1789. Although it copied many of the aspects of the then existing British political system, it sought to limit the authority of the executive in foreign affairs by requiring the advice and consent of an extraordinary majority of the Senate. Indeed, it required the Senate to do so by two-thirds vote. The Senate consists of 100 members, two elected from each state for staggered six year terms. The senators do not elect the president and cannot remove him by a vote of no confidence, but they may have substantial disagreements with his policies. Obtaining a two-thirds majority in the Senate is never a foregone conclusion. Neither of the major political parties has had a two-thirds majority in the Senate since 1967. Indeed, the President’s party has not even held a simple majority in the Senate in more than half of the past 50 years. Even the members of the President’s own party may not follow his lead. They are not dependent upon him for their reelection, since they campaign on their own records and largely with resources that they raise for themselves. The Senate has a complex set of procedural rules that also may seal the fate of some proposals. When a treaty is submitted to the Senate for its approval, it is referred to the Committee on Foreign Relations. The chairman of that committee may schedule hearings, or he may choose not to do so. If the chairman is opposed to the proposal, or is simply politically opposed to the incumbent administration, proposed treaties may languish for years without consideration or decision. Although there are procedures for removing a proposal from the committee, they are rarely used. Even if the committee recommends a proposal to the full Senate for consideration, several other obstacles remain. Any member of the Senate can anonymously put a temporary “hold” on any item of business simply by notifying the floor leader.18 Several senators who oppose a proposal can act in concert to put successive holds on consideration, delaying consideration for long periods. If the matter eventually reaches floor debate, there is normally no limit on the extent of 16 17 18

Id., Art. VI, para. 2. United States v. Alvarez-Machain, 504 US 655 (1992).

United States Senate Manual. The “hold” is an informal mechanism, enforced by custom, not rule.

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time that senators may speak or the number of amendments that they may propose to the resolution advising and consenting to ratification. Senators who oppose the proposal can simply talk endlessly, until the majority gives up and moves on to other business. This is the so-called “filibuster.” A filibuster can only be stopped by a motion to close debate if 60 of the 100 senators vote for a motion of cloture to do so.19 Even if cloture is adopted, another 30 hours of debate is automatically provided.20 The vote well may present difficult questions, as well. A two-thirds vote (67 votes, usually) is very difficult to achieve. Senators are primarily responsive to constituent interests in their home states, rather than to the demands of their party. Environmental agreements that would have collateral economic impacts may be strenuously opposed by important local constituents. Even senators in the President’s own party will be responsive to those concerns and may vote against the proposal. The result is that a ratification of a treaty can be blocked not only by a majority of senators, but by a determined and concerted minority of senators. Changing these constraints would require a constitutional amendment, but such amendments are even more difficult to adopt. They require a two-thirds vote in both houses of Congress, followed by approval by the legislatures in three-quarters of the fifty states. Because of the complexity of these procedures, the Senate is able to process only about two dozen formal treaties each year, far less than the total number of international negotiations conducted each year. Other agreements must be implemented using other methods and approaches. The failure to take the final step toward formal ratification of treaties has placed the United States in an awkward position in many of the standing treaty organizations. Since it has not ratified the instrument, it is not a full participant in meetings of the parties and has only a limited ability to influence the evolution of the treaty system.

19 20

United States Senate, Rules of the Senate, rule XXII:2. Id.

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C. Alternatives to a Treaty for Domestic Enforcement The United States must find alternatives to the ratification of a formal treaty. These alternatives fall into several groups. Some of them involve executive agreements, instruments that have the international characteristics of treaties but are not subject to formal Senate consideration. Others rely on domestic legal instruments, avoiding any binding legal international commitment, but implement the international standards by simple legislative or administrative measures. Such domestic instruments are sometimes accompanied by non-binding international accords. In addition, the United States sometimes claims, as it has done in the case of the Vienna Convention,21 that part or all of some international treaties are merely restatements of customary international law and thus are legally binding. Executive agreements. The first two of these alternatives involve executive agreements, instruments that are treaties in an international sense but do not receive the advice and consent of the Senate. There are essentially two kinds of such agreements, “sole” executive agreements that rely on the President’s inherent powers as head of state and “congressional” executive agreements that are based upon some authorization by Congress, given before or after their negotiation, to enter into them. The executive agreement has been the primary alternative to a formal treaty for nearly a century. Under an executive agreement, the President (or members of the executive branch, acting for him) enter into some international agreements, but simply do not submit them to the Senate for ratification. Executive agreements have been used for minor matters since the early days of the United States, but came to have a prominence in the 20th century. Extensive use of executive agreements began in the 1930’s. For more than a decade after the Russian Revolution, the United States had refused to recognize the Soviet government. That refusal was based, in part, on the failure of the Soviet Union to compensate American investors for property that had been taken from them in the course of the Russian Revolution. In the 1930’s the United States entered into an executive agreement, known as the Litvinov agreement, with the Soviet Union. The agreement both extended diplomatic recognition and settled the outstanding property claims. Under that agreement the United States released all property claims of American citizens against the So21

See supra, text to note 10.

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viet government, and accepted in exchange all Russian-held property in the United States. The state of New York had, however, already recognized the property rights of the émigré Russian owners to that same property. Since property law in the United States is ordinarily a matter of state law, not federal law, the resolution of the property question in the Litvinov agreement could have collapsed unless the agreement was considered superior federal law. These provisions could prevail only if it was considered to be a treaty under the Supremacy Clause of the Constitution. The difficulty with that argument was that it had not been ratified as a treaty under the Treaties Clause, but only concluded as an executive agreement. In United States v. Pink22 the Supreme Court held that the agreement was a “treaty” for the purposes of the Supremacy Clause of the Constitution, even though Senate consent to its ratification had not been obtained under the Treaties Clause. The Court based its judgment in part on the fact that the President had the express power to “receive ambassadors,” and that the settlement was part of the recognition that received a Soviet ambassador, so the advice and consent of the Senate was not required. This left a question of the breadth of the decision. Could it be read broadly to cover all or virtually all international agreements, or only narrowly to cover those associated with exclusive powers of the President? The decision was very controversial. In the 1940’s and 1950’s there were unsuccessful efforts to amend the Constitution to require Senate approval of all international agreements, but the proposed “Bricker amendment”23 to the Constitution never received the necessary support. Congress subsequently enacted a carefully drafted statute that required reports to the appropriate Congressional committees about such agreements.24 It suggests, but does not require, that executive agreements are permissible only when the domestic effects of an international obligation are within the narrow range of powers specifically delegated to the President in the Constitution, such as the power to receive foreign ambassadors, or when they have been approved, before or after the fact, by Congress.

22

315 US 203 (1942).

23

A. E. Sutherland, The Bricker Amendment, Executive Agreements and Imported Potatoes, 67 Harvard Law Review 281 (1953). 24

1 USC 112b.

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The scope of the President’s executive agreement authority was tested again in 1981 in Dames and Moore v. Regan.25 That case arose in the aftermath of the Iran hostage crisis. In 1979 revolutionaries in Iran had overthrown the previous government and had taken the staff of the United States embassy as hostages. The hostages were held for over a year. American assets in Iran were also seized by the revolutionaries and contracts with American companies were breached. Among the companies injured was Dames and Moore, a consulting firm. The crisis was resolved through an agreement, the Algiers Accords, that provided for the release of the hostages and a suspension of all private claims against Iran in American courts. Those claims were to be resolved by an Iran-United States Claims Tribunal in the Hague, rather than in the domestic courts of either country. Dames and Moore challenged the validity of the agreement as domestic law claiming that it was unconstitutional. The Supreme Court again upheld the underlying executive agreement, but its opinion appears to narrow the scope of permissible executive agreements. The Court upheld the agreement largely because it found that Congress had, over more than a century, acquiesced in settlement of international claims by the executive branch and thus had effectively consented to this sort of executive agreement. In its opinion the Court states, “Critical to our decision today is the conclusion that Congress has implicitly approved the practice of claims settlement by executive agreement …”.26 While upholding the validity of the Algiers Accord itself, this decision thus casts doubts on claims for a broader presidential authority to enter into executive agreements without Congressional approval. In light of this decision, it could be very difficult to maintain a sole executive power to enact regulations with domestic legal effect in fields in which the Congress has legislative authority unless Congress had granted some express approval or tacit acquiescence. The President may now have a much more limited power to enter into sole executive agreements than was once claimed. There have been proposals to limit the President’s unilateral power in this regard by creating an Administrative Procedure Act for International Law, subjecting the executive agreement authority to restrictions similar to those that apply to rulemaking by executive agencies.27 25 26 27

453 US 654 (1981). Id., at 680.

O. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale Law Journal 140 (2009).

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A second form of executive agreement relies more heavily upon the approval of executive agreements by both houses of Congress, granted by simple majority vote, either before or after their negotiation. These can take various forms. In some cases Congress simply authorizes the President to enter into future international agreements on certain subjects. The approval of claims settlement agreements is one example. Tariff reductions as a result of trade agreements are another. Congress has frequently granted the President authority for a limited time to enter into negotiations for mutual tariff reductions without further Congressional review, allowing him to implement the changes by proclamation. In other cases, Congress permits the President to negotiate such agreements and to present them to both houses of Congress for enactment as a statute. In this case, the original authorization may come with a socalled “fast track” provision that requires Congress to act within a limited period of time or that limits debates or amendments in advance. After the statute is enacted, the President will sign or ratify the negotiated agreement. Agreements of this kind become effective in international law when they are ratified (in the international sense) by the President, even though there is no formal advice and consent by the Senate. They become part of the “law of the land” primarily because of their status as laws, not because of their status as treaties. The best known examples of this type of agreement are in the field of international trade. Such statutes permitted the United States to engage actively in the various “rounds” of trade negotiations that took place from the 1950’s through the 1990’s and to implement their conclusions. While the international authority of the GATT agreements flowed from their conclusion among the various states, the domestic authority flowed from approval of its results in ordinary domestic legislation. After nearly 50 years of this shadow existence, the Uruguay round of trade negotiations led to the creation of a formal World Trade Organisation. Here, again, the peculiar course of the approval of that arrangement in the United States is significant. In domestic terms, the WTO agreement was never ratified as a treaty. Rather, the agreement acquires its effect in American law because the Congress enacted a statute incorporating most of its terms.28 Indeed, the authorizing statute makes it clear that the statute, not the agreement itself, is to be applied in any

28

19 USC § 3501 and following.

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cases within the United States29 and that private parties will have no standing to use it to challenge the validity of any state or federal legislation or regulation.30 Domestic implementation of international standards. Two other methods of achieving the objectives of international negotiations involve domestic measures, but with no formal, legally binding international commitments. The first of these domestic approaches is simply to enact legislation that mimics a desired international standard. For example, one of the legislative goals of the present Obama administration is the enactment of legislation establishing limits on greenhouse gas emissions and establishing an emissions trading system. As a domestic matter, such an arrangement would have the same force and effect as an ordinary statute. To be enacted, it would require only a simple majority in both houses of Congress and approval by the President. The proposal would thus require a simple majority in both houses of Congress to be enacted (and a 60% majority in the Senate to overcome a filibuster). This is far more readily achievable than the 67% majority that the treaty form requires, but still may be difficult to achieve. Such an approach may meet the current international standard, but it creates no firm international obligation − only the political promise that the United States will continue to provide the same legislation. In other instances, the United States has implemented all or most of the terms of international agreements through administrative regulations under existing statutory authority. One example is the Basel Convention on Transboundary Movement of Hazardous Waste, which the United States still has not ratified, nearly 20 years after its conclusion. Acting under authority granted by the Resource Conservation and Recovery Act31 (RCRA) and other laws, the Environmental Protection Agency (EPA) has adopted rules that implement many of the provisions of that convention.32 Every journey of a thousand miles begins with a single step, and every international shipment of hazardous waste begins or ends with a domestic movement. The domestic regulations prohibit the export of hazardous waste to developing nations and require EPA approval for other shipments.

29 30 31 32

19 USC § 3512. 19 USC § 3512. (c)(1). 42 USC § 6901 and following. See particularly 40 CFR parts 262.80 and 263.20.

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Internationally there is no binding obligation, so the United States is not a party to the Basel Convention. It remains, however, deeply involved in its functioning and its support of the goals of the convention are essential to its success. Domestically, adoption of such a regulation is through ordinary agency rule making. The substantive authority to regulate is granted in this case by RCRA and the procedures for adoption of the rules are set out in the Administrative Procedure Act.33 That statute requires that the agency adopting the rules publish them, receive comments and respond to them, and then issue a final regulation. The rule is then subject to judicial challenge as to whether the particular actions have been authorized by the basic statute and whether the required procedures have been followed. A rule so adopted is subject to amendment or appeal by future administrations, following a similar process. Such an approach is being considered as an alternative to proposed new legislation to control the emission of greenhouse gases, if Congress fails to enact legislation. The Environmental Protection Agency has begun the process necessary to issue rules to limit the emission of carbon dioxide (CO2) into the atmosphere.34 The administrative rule-making process contains its own limitations. The agency can only make regulations within the scope of the statutory authority. Thus it was important to determine that CO2 is a “pollutant” because regulation of pollutants is within its competence. Under this approach the EPA could probably establish “caps” or limits on emissions under its general authority to limit pollution, but it may not have the breadth of authority to make all of the additional rules necessary to create a fully functioning system of trading energy credits. Viewed from an international perspective, the problem with these domestic approaches is that they do not bind the United States to abide by an international norm. There must be a common international understanding of goals and objectives, without a formal legally-binding international agreement. While an international instrument with legal

33 34

5 USC § 551 and following.

During the Bush administration the EPA had resisted adopting such regulations, claiming that CO2 was not a pollutant. Several states sued the federal government, seeking to require it to issue such regulations. The Supreme Court ruled that the EPA had the authority and also had a duty to consider adoption of regulations. Massachusetts v. Environmental Protection Agency, 549 US 497 (2007).

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force would be preferable to most international lawyers, this approach may be the best that can be obtained.

D. Alternatives to a Treaty for International Commitment Such domestic law approaches can be accompanied by non-binding international political commitments. The Copenhagen Accord,35 reached at the end of the December 2009 meeting of the parties to the Climate Change convention, is an example. The United States has used nonbinding agreements in other contexts, the “Helsinki Accords,” which provided the basis for the de-escalation of the Cold War, are another example.36 They established a framework within which antagonistic states could begin to establish trust, providing a foundation for voluntary actions by both sides toward a common aspiration. Accords are much more malleable than treaties. They are political, not legal. The commitments in them can be altered or withdrawn by any party. That fact is both their strength and their weakness. It is a strength in that it allows a government to clearly and publicly articulate its aspiration, and then be held by its own constituents and by foreign governments to live up to those commitments. Another advantage is that the format permits a state to respond to changed circumstances, such as the major economic crisis of the past year, without complicated disentanglement from treaty commitments. It also permits states that would find it impossible to ratify ordinary treaties to make public commitments that they may find difficult to abandon. These strengths are also weaknesses. If the aspiration is not also accompanied by tangible progress, the accord will be an illusion. The availability of an option to postpone or diminish compliance may be an open invitation to do that very thing. Notwithstanding an initial desire to adhere to the commitment, the absence of a formal legal bond may make its abandonment more palatable to a state.

35 36

UN Doc. FCCC/2009/L.7. 14 ILM 1292 (1975).

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E. Conclusions Technically the alternative approaches to the internal implementation of international agreements have no status in international law. The nonbinding accord is not an international legal obligation. Yet each of them is an avenue for the implementation of international standards in the absence of entry into a binding formal international obligation. To approach problems of global concern in this way is deeply disappointing to those who work in the field of international law. Yet to fail to approach them in this way could be disastrous for the underlying goals that one wishes to achieve. One major motivation for this approach is the inability of the United States to obtain ratification of formal treaty instruments. Accords at least set a goal. Compliance with that goal may be more a matter of persuasion than of obligation. Persuasion can sometimes be strong, and obligation can be weak. In many modern environmental treaties the emphasis on achieving the objective of the instrument has shifted from enforcement of its obligations to compliance with its requirements. With that shift, the difference between a formal treaty, in which persuasive means will be used to encourage a state to comply, and an accord, in which the same techniques will be utilized to achieve the treaty’s objective, may no longer be so far apart. Accords may simply be another way of persuading states to comply with the measures necessary to achieve a common aspiration. Given the constitutional and political limitations in the United States, accords may be the strongest form of international obligation that can be achieved. We should judge the modalities of implementing climate protection by their results, rather than their form. If alternative mechanisms can bring necessary parties like China and the United States to the table, and actually result in environmental gains, then they cannot be judged to be wholly a failure. If so, they may deserve a more positive evaluation than the disappointed delegates to Copenhagen gave them.

Exploitation and the Use of the Global Commons

The Division of the Commons? The Myth of the Commons: Divide or Perish Gerhard Hafner

Professor Rüdiger Wolfrum has dealt extensively with the global commons both in theory and in practice. His habilitation monograph was devoted to the internationalization of common spaces, including Antarctica, the sea and outer space.1 In practice, he acted in various eminent functions on committees and other bodies relevant for the administration of such areas, most recently as president of the International Tribunal for the Law of the Sea (ITLOS). I had the great pleasure and privilege of working with him in the third United Nations Convention on the Law of the Sea (UNCLOS III) and the law of sea has remained a decisive factor in his career.2

A. Introduction UNCLOS III was initiated with the famous speech of Arvid Pardo on 1 November 1967 in the UN General Assembly.3 He declared that a colonial rush to annex the resources of the deep seabed would occur if no general regime were applied to this area and if it were not declared “the 1

R. Wolfrum, Die Internationalisierung staatsfreier Räume (1984).

2

The following thoughts on the issue of global commons were initially presented at the “Law of the Sea in Dialogue” on 5 December 2009 in Heidelberg, on the occasion of Professor Rüdiger Wolfrum’s 68th birthday. The author is very grateful to Mr. Gregor Novak, research assistant, for his extremely valuable assistance in the elaboration of this paper. 3

A. Pardo, UN Doc. A/C.1/PV.1515, 1 November 1967, at 6.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_5, © Springer-Verlag Berlin Heidelberg 2011

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common heritage of mankind”.4 Such a regime was intended to generate a just and equitable distribution among all States of the resources and profits derived there from. The idea of exempting certain areas from national governance, i.e. areas outside one exclusive national jurisdiction, so that they might be open to all and not subject to unilateral dominance, was not new. This idea had already inspired Grotius concerning the high seas;5 it was the cornerstone of the regime of outer space,6 determined the distribution of radio frequencies,7 became the underlying regime for Antarctica8 and – only to a certain extent – of Spitsbergen.9 These regimes were all driven by the expectation that one State alone should not reap the benefits from the exploitation of their resources. Thus, in the long term, these areas could be beneficial to more than one State. The various regimes, as can be seen in the summarized description below, differed in their structure and distribution of powers. While in the case of the high seas the freedom of the high seas became the dominant principle, other common areas were subject to different regimes.

B. International Commons Regimes I. Spitsbergen Originally, the Spitsbergen archipelago was generally considered extra commercium, and pursuant to the draft treaty of 191210 it was to remain terra nullius, subject to an internationalized administration.11 However, 4 United Nations, The Law of the Sea: Concept of the Common Heritage of Mankind: Legislative History of Articles 131-150 and 311(6) of the United Nations Convention on the Law of the Sea (1996). 5

J. B. Scott (ed.), Hugo Grotius’ The Freedom of the Seas, Chapter I, at 7 (1916). 6 7 8 9 10 11

See infra under point B. IV. See infra under point B. III. See infra under point B. II. See infra under point B. I. Wolfrum (note 1), at 24.

R. N. Rudmose Brown, Spitsbergen, terra nullius, 7 The Geographical Review 311-321 (1919).

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after the end of World War I, the Spitsbergen Treaty12 adopted a different regime.13 It made Spitsbergen subject to Norwegian administration and sovereignty while nevertheless opening access to the exploitation of its living and non-living resources to nationals of all States Parties on an equal footing.14 Pursuant to the Spitsbergen Treaty, Norway became free to maintain, take or decree suitable measures to ensure the preservation and, if necessary, the reconstitution of the fauna and flora of Spitsbergen and its territorial waters, it being clearly understood that these measures would always be applicable equally to the nationals of all State Parties without any exemption, privilege or favour whatsoever, direct or indirect, to the advantage of any one of them.15 At the same time, due to its recognized sovereignty over Spitsbergen, Norway maintains a discretionary right to determine all aspects of environmental protection, specifically by regulating or prohibiting activities.16

II. Antarctica While Antarctica had a similar status to that of Spitsbergen until the First World War, it developed in a different direction thereafter. Its regime was established primarily by the Antarctic Treaty,17 which establishes the freedom of scientific investigation in Antarctica as well as cooperation towards that end in article II. According to article IV of the Antarctic Treaty, the Antarctic regime merely freezes the asserted rights of or claims to Antarctic territory and thus does not permanently internationalize the area. Moreover, Antarctica is subject to a regime of strict control: the Protocol on Environmental Protection to the Antarctic Treaty18 provides in article 2 that the Parties commit themselves to the comprehensive protection of the Antarctic environment and dependent 12

Treaty Concerning the Archipelago of Spitsbergen, 9 February 1920, League of Nations Treaty Series, Vol. 2. 13

Wolfrum (note 1).

14

G. Ulfstein, The Svalbard Treaty: From Terra Nullius to Norwegian Sovereignty (1995). 15 16 17 18

Article 2, supra note 12. Article 3, supra note 12. The Antarctic Treaty, 1 December 1959, 402 UNTS 71.

Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1461 (1991).

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and associated ecosystems and designates Antarctica as a natural reserve, devoted to peace and science. Furthermore, the Antarctic Treaty and Protocol provide for national inspectors in articles VII and 13, respectively. The Convention for the Conservation of Antarctic Seals19 provides for a procedure for the Contracting Parties to set up an “effective system of control, including inspection over the implementation of the provisions of the Convention”, which has not yet been triggered.

III. Frequencies and Satellites Initially, the distribution of frequencies was governed by the “first come, first served” principle. However, as the frequencies used by satellites is concerned, the operation of satellites is dependent upon the availability of radio frequencies; the availability of frequencies is limited by the fact that the orbits where such satellites can operate best are confined to the space above the equator.20 Notwithstanding early attempts by some equatorial states to claim this resource as part of their respective airspace,21 subject to the “complete and exclusive sovereignty” of the State concerned,22 article I of the Outer Space Treaty23 grants all States the right freely to explore and use it. But, as these frequencies are finite resources and problems of interference can easily occur, international rules for their management had to be established.24 Accordingly, the orbital commons regime was made 19

Convention for the Conservation of Antarctic seals, 1 June 1972, 1080 UNTS 175. 20

K.-U. Schrogl, Questions relating to the Character and Utilization of the Geostationary Orbit, in: K.-U. Schrogl/M. Benkö (eds.), International Space Law in the making. Current Issues in the UN Committee on the Peaceful Uses of Outer Space, 151-184 (1993). 21 Bogotá Declaration: First Meeting of Equatorial Countries, 3 December 1976, 15 RBDI 48 (1980). 22

Convention on International Civil Aviation, 7 December 1944, 15 UNTS

295. 23

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, 27 January 1967, 610 UNTS 205. 24 S. Hobe, Geostationary Orbit, Max Planck Encyclopedia of Public International Law (2009).

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subject to certain conditions by the Outer Space Treaty as well as the Convention on Registration of Launched Objects into Outer Space,25 the Convention on International Liability for Damage Caused by Space Objects,26 the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies,27 the Comprehensive Nuclear Test Ban Treaty28 and the ITU Radio Regulations.29 The need for the efficient use of orbital positions and the prevention of harmful interference resulted in the need for frequency spectrum management and the coordination of orbital positions. The World Administrative Radio Conference (WARC-79), which later became the World Radiocommunication Conference, substantially amended the International Telecommunications Union’s (ITU) Radio Regulations and included agreements that regulate the international radio spectrum and satellite industry. Accordingly, article 44 para. 2 of the ITU Constitution30 provides for both the “efficient” and “equitable” use of the frequency and orbit resource. In time some parts of the geostationary orbit were planned and orbital slots and radio frequencies were allocated for all States. However, this allotment applies only to certain fixed satellites and broadcastingsatellite services,31 so that in other areas the original “first come, first served” principle has been maintained.

25

Convention on Registration of Objects Launched into Outer Space, 14 January 1975, 1023 UNTS 15. 26

Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187. 27

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December 1979, 1363 UNTS 3. 28

Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161. 29 The Radio Regulations, Edition of 2008, contain the complete texts of the Radio Regulations as adopted by the World Radiocommunication Conference in 1995 (WRC-95) and subsequently revised and adopted in 1997 (WRC-97), 2000 (WRC-2000), 2003 (WRC-03) and 2007 (WRC-07), including all Appendices, Resolutions, Recommendations and ITU-R Recommendations incorporated by reference, available at . 30

Constitution and Convention of the International Telecommunication Union, 22 December 1992, 1825 UNTS 143. 31

Hobe (note 24).

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IV. Outer Space Outer space is governed by certain fundamental principles governing space activities set out in the Outer Space Treaty, namely that outer space shall be the province of all mankind, that it shall be used for the benefit and in the interests of all countries, that exploration and use shall not allow discrimination of any kind and shall be based on equality and international law,32 and that outer space shall not by any means be subject to national appropriation by claim of national sovereignty.33 Outer Space activities are to be carried out in accordance with international law and in the interest of maintaining international peace and security. The legal regime of outer space also provides for free access to all areas of celestial bodies, the freedom of scientific investigation and the facilitation and encouragement of international co-operation.34 However, that this freedom of access is likely to pose problems is already reflected in the ongoing work of the legal subcommittee of UNCOPUOS.35

V. Common Features Although different structures have been applied to these global commons, they all have common elements: the use of the resources of these areas is – with the exception of Spitsbergen – not subject to the regulation of only one power and access to the resources is open to all parties or, in more general terms, to all participants on a basis of equality. It is in this sense that global commons should be understood here. It can be asked whether the different commons regimes providing for common rights or at least equal access to the exploitation of a common resource under international law are sufficiently effective to achieve certain goals characteristic of successful commons regimes. The (dependent) output variables used to evaluate commons systems, as enumerated by Ostrom et al.,36 will be generalized here as characteristic goals of a 32 33 34 35 36

Article I, supra note 23. Article II, supra note 23. See supra note 23. See infra note 69.

E.Ostrom et al., The Drama of the Commons, 455 (2002); see below under Point D.

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successful commons regime. These goals include in particular the sustainability, durability and productivity of the commons system and the equitable distribution of the economic output. In the present case, equitable distribution of economic output among each of the participating States is considered to be an outcome capable of meeting the commonly expected legitimate interests of States. In light of these goals, it seems worthwhile to juxtapose some of the various global commons regimes to the general design principles deemed necessary, according to Ostrom et al., for achieving a successful commons regime.37 Anticipating the conclusion, it can be summarized that in light of the weaknesses of the structures provided for commons management by international law, the various regimes existing beyond the limits of national jurisdiction (commons regimes or international regimes) cannot guarantee the effectiveness of a just, equitable and sustainable distribution of profits. Therefore, current regimes may be characterized either as ineffective common property regimes or as regimes establishing a de facto division of common property among States and other actors.

C. The Tragedy of the Commons That the commons entail some sort of tragedy was already remarked in 1833 by William Forster Lloyd.38 This theory was followed and popularized by Hardin in his famous article in the journal Science in 1968.39 According to this reasoning, unrestricted access to a resource ultimately leads to its over-exploitation to the detriment of all potential users. In Hardin’s view there was no foreseeable technical solution to increasing both human populations and standards of living. “Freedom”, i.e., the freedom to do as one pleases, was seen as ultimately responsible for the tragedy of the commons. Over-exploitation was exacerbated by continued economic growth. Hardin believed that other more precious freedoms could be protected only by a certain management of the resources defined as common. Hardin stated:

37

Id., at 461 et seq.; See below under Point 4.

38

William Forster Lloyd, Two lectures on the checks to population, 30 (1833). 39 Garrett Hardin, The Tragedy of the Commons, 162 Science 1243-1248 (1968).

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“Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit − in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons”. This concept influenced the law of the seas negotiations, since Hardin’s article was known to the participants and generated proposals on the management of the resources of the international part of the seabed, later known as the “Area”, which provided for very strict regulations that were mitigated in the course of subsequent negotiations. Since then, different approaches have been applied to the commons, either favouring or rejecting common management. Most of the approaches favoured the propertization of what were previously common resources. This discussion can be seen in the light of the approach taken by Elinor Ostrom, who also dealt extensively with the issue of commons, even if her research was originally restricted to particular, local, self-managed common pool resources.40 This article is an attempt to apply the conclusions of Ostrom et al. to international commons regimes in order to examine to what extent the regimes currently existing under international law meet these conditions in achieving a certain set of standard goals for commons regimes. Although this analysis primarily concerns doctrine, in practice, it extends also to the current discussion with regard to genetic resources and biodiversity in the maritime area as well as, in light of emerging possibilities, to the exploitation of outer space and celestial bodies.

40

Commons structures can exist on a national level as well. The 2009 Nobel Prize winner in Economic Sciences, Elinor Ostrom, studied such commons structures governing meadows and forests in Törbel and other Swiss villages, zanjera institutions of the Philippines, Spanish huertas and villages in Japan. These structures are commonly managed areas which are lasting and sustainable due to effective collective arrangements and do not necessarily rely on State enforcement, see E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).

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D. Requirements for an Effective System According to Ostrom According to Ostrom et al., seven general conditions are typically met by successful common resource management institutions.41 These conditions are enumerated in a set of “seven principles of institutional design” for common pool resources: Low-Cost enforcement of Rules, Monitoring the Resource and User’s Compliance with Rules, Addressing Negative Externalities for Other Resources, Reconciling Conflicting Values and Interests, Managing Resources with Imperfect Knowledge, Establishing Appropriate Linkages among Institutions, Adapting to Change in Social and Environmental Conditions. Generally, it can be assumed that if a regime fulfills these criteria it can be considered effective, i.e. it can be expected to remain sustainable while assuring the equitable sharing of the resources or profits deriving therefrom.

E. Examining Commons Regimes Governed by International Law Of course, Ostrom et al. reach the conclusion that resource users frequently develop sophisticated mechanisms for decision-making and rule enforcement to handle conflicts of interest, and characterize the rules which promote successful outcomes, a situation which hardly exists in international law. Nevertheless, it can be examined whether and to what extent these characteristic principles of successful commons regimes can be found in commons regimes governed by international law, particularly since the primary actors are States and international law does not provide for an effective means of central enforcement.

41

Ostrom et al. (note 36), 461 et seq.

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I. Low-Cost Enforcement of Rules and Monitoring the Resource and User’s Compliance with Rules As to the low-cost enforcement of rules, Ostrom et al. emphasize that “successful institutions are widely recognized to depend on the ability of users to devise rules for access to and maintenance of a commonpool resource and to sanction rule-breaching behavior”. Moreover, the design characteristics should be achieved at reasonable cost and resource users should have an incentive to help provide for the costs.42 That the question of enforcement raises major concerns was illustrated in the course of the Review Conference43 relating to the Straddling Fish Stocks Agreement44 in 2006 since, in particular, the abstention of developing States from this treaty was explained by the monitoring and enforcement mechanism provided by it, which even in doctrine has aroused certain concerns in relation to the third party rule under the Vienna Convention on the Law of Treaties of 1969 (VCLT).45 Quite a number of other examples could be cited, be it in the field of frequencies, where jamming was used to curtail the undesired effect of the freedom of the air,46 be it remote sensing, be it in outer space activities or even in the protection of the environment. Similarly, it has been argued that, concerning Antarctica, the 1991 Protocol47 creates no management institution with distinctive powers comparable even to those of the International Seabed Authority (ISA). The Committee on Environmental Protection, within the framework of the 42

Ostrom et al. (note 36), at 462.

43

Report of the Review Conference on 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, A/CONF.210/2006/15, 5 July 2006, at 9 et seq. 44 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3. 45

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS

331. 46

G. A. Codding, Jamming and the Protection of Frequency Assignments, 49 American Journal of International Law 384-388 (1955). 47

See supra note 18.

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Antarctic Treaty Consultative Meetings, performs only the usual supervisory and regulatory functions associated with other environmental treaty institutions. Thus, application of the Treaty’s unanimity requirement to decision-making by the parties leaves Antarctica without an effective system of law enforcement.48 Apart from the abovementioned patchy allocation regime, the enforcement of Radio Regulations suffers from a similar weakness: the detection of an infringement is unproblematic, while the party responsible is difficult to ascertain. But this example provides an additional element contributing to the inefficiency of international mechanisms: this field of activity carried out in particular by means of satellites has in recent times undergone a substantial change through privatization which introduced a multitude of private actors that are difficult to control or, at least, more difficult than if only States were involved in these activities. Other outer space activities on celestial bodies such as Mars and the Earth’s Moon will certainly create similar problems.49 A major difficulty results from the fact that the possible perpetrators are mostly unwilling or unable to monitor and sanction breaches. Furthermore, only a few attempts have been made to endow different actors, such as independent experts of even NGOs, with such function and competence, in particular in the field of the protection of the environment and human rights.50 Even the regional or sub-regional RFMOs are not able to establish the necessary mechanisms, as the traditional overfishing in the areas supervised by them convincingly proves.51 For these reasons it is not surprising that States tended to advance the approach of subjecting maritime areas and other international areas to a national jurisdiction, as already in 1945 with the claim to an extended protection zone or, even earlier, by placing Spitsbergen under the “full and absolute sovereignty of Nor48

P. Birnie/A. Boyle/C. Redgewell, International Law and the Environment, 96 (3rd ed. 2009). 49

V. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources, 73 et seq. (2009). 50 51

P. Birnie/A. Boyle/C. Redgewell (note 48), at 89-91.

See Report of the Review Conference on 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; UN Doc. A/CONF.210/2006/15, para. 95.

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way”.52 In this sense a quotation from Adam Smith comes to mind: “The navigation of the Danube is of very little use to the different states of Bavaria, Austria, and Hungary, in comparison of what it would be if any of them possessed the whole of its course till it falls into the Black Sea”.53 It seems that presently only the authority of one State can ensure the enforcement mechanism required to produce an effective resource management system. A particular weakness of enforcement results from the absence of a third party effect in international law as expressed in article 34 of the VCLT. It is doubtful whether current international law is able to cope with this requirement regarding third States: examples that prove its inability to do so are provided by the famous case of fishing vessels that were arrested for a short time in the port of Rostock, were flying the flags of Belize, Dominica and, later, Georgia, and were accused of illegal fishing in the north Atlantic.54 The problem was that they were subject only to the freedoms of the sea since the flag States were party neither to the UNCLOS nor to the various Regional Fisheries Management Organizations (RFMOs) in the Atlantic, so that they were not bound by any of the fisheries regulations. This incident reveals a further problem relating to the commons: not all States are parties to the relevant regimes. Therefore, on the one side, they are not bound by their restrictions while, on the other side, the regime has to provide access to newcomers. Another problem is the idea of creating Marine Protected Areas (MPAs) beyond national jurisdiction where any fisheries activities should be closed off. Such MPAs exist at present, but cover only a very small part of the world’s oceans, and even where they exist they have proven partly ineffective.55 The question will also be how to bind States that are not parties to such a regime to abide by its rules as far as they are established on the high seas. The issue at stake here is that general

52

See supra under point B. I.

53

A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book One, Chapter III (1776). 54 T. Paterson, EU hunts “pirate” fishing fleet allowed to sail by Germany, The Independent, 22 March 2006, available at <www.independent.co.uk>. See also Report of the Review Conference, supra note 51, paras. 76 et seq. 55

Report of the Secretary General to the United National General Assembly, Oceans and the law of the sea, UN Doc. A/64/66/Add. 1, 25 November 2009, para. 285.

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international law provides only limited powers to pursue such breaches of rules. These examples demonstrate that the present structure of international law based on the sovereign equality of States is unable to provide an effective low-cost system of law enforcement.

II. Addressing Negative Externalities for Other Resources In the view of Ostrom et al., “[s]uccessful management may depend on regulating multiple species or even ecosystems, as well as an increased and more heterogeneous population of resource users; it may also require linkages among preexisting institutions with responsibilities for managing parts of the system”.56 In this respect, it is certainly within the power of the various resource management systems to address the issues of such negative externalities. However, the problem is linked to the outreach of such systems if they deal only with a particular resource. Avoiding such externalities depends also on the necessary knowledge concerning the interlinking of different resources.57 A good example is the problem the International Seabed Authority is now facing concerning resources other than the manganese nodules located in the area, in particular whether the regime established in UNCLOS58 is able to cope with these newly discovered types of resources.59 This question is also linked to a general tendency in international relations to address different issues in separate legal regimes without taking their connectedness into account.

56 57

Ostrom et al. (note 36), at 463. Id., at 465.

58

United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 396. 59

Assembly of the International Seabed Authority, Summary presentations on polymetallic massive sulphide deposits and cobalt-rich ferromanganese crusts, ISBA/8/A/1, 9 May 2002.

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III. Reconciling Conflicting Values and Interests What presently characterizes general international law applies also to resource management regimes. In this sense Ostrom et al. observe a related challenge due to the presence of conflicting values and interests among appropriators, and add that “[t]his challenge, ubiquitous when policy decisions are being made, is most severe when groups are economically and culturally heterogeneous, when members are heterogeneous in their relationships to the resource (e.g., up-stream and down-steam water users), and when members differ in their degree of dependence on the resources”.60 The legislative history of UNCLOS clearly confirms this view with regard to the exploration and exploitation of the Area as different conceptions were pursued by the participants, reaching from centralized systems under the Tanzanian proposal to the liberal systems which finally prevailed. With respect to the concept of the common heritage of mankind, Pinto even states that “[s]uch a belief could only have been based on the grave misunderstanding that law-making at the interstate level was a mere matter of pluralities. Little thought seems to have been given to the complexities of the process through which compliance with international law is to be achieved. Little thought seems to have been given to the central fact of that process, a fact which all had surely learned from experience: disparities of power. … A remarkable aspect of the adoption of the Implementing Agreement which in effect destroyed the myth and modified part XI, was the welcome accorded to it by the developing countries whose statist and dirigistic positions had been reflected in many provisions of part XI as it stood originally”.61 The distribution of frequencies stemming from space objects are likewise subject to different objectives that complicate appropriate solutions. On the part of the ITU, the use of a specific frequency band or orbital position is preceded by coordination, authorization and licens-

60 61

Ostrom et al. (note 36), at 464.

M. C. W. Pinto, Common Heritage of Mankind: From Metaphor to Myth, and the Consequences of Constructive Ambiguity, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century, 249 et seq. (1996).

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ing, as agreed among administrations.62 But it is questionable whether the objectives pursued by these procedures are applicable within the outer space regimes. In the area of outer space, the legal subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) started by dealing with the interpretation of the common benefit.63 As Stephan Hobe explains, neither the Outer Space Treaty nor the Moon Treaty provides a precise limitation on the appropriation of resources from celestial bodies,64 the common benefit clause is too general to generate such a limitation. Developing nations have legitimate concerns regarding the process by which the ITU allocates GSO positions. Although there are currently only a few States capable of launching spacecraft into the GSO, many other entities have contracted with these launching States to place their own satellites in the GSO, and this number will only grow as more States develop the need for positions in the GSO. These conflicting values and interests as well as the need to reconcile them are particularly reflected in the question of the distribution of access to resources and to profits. Different systems have been applied, from a “first come, first served” system to equitable distribution. However, some doubts have also been raised whether an “equitable distribution” could really produce a result that could be called just and fair, since too many different interests are usually involved and too many different interpretations are applied. Even different criteria for structuring equity, such as preference for developing countries, do not always suffice for a distribution satisfying all participants. No attempt has been made to determine what constitutes the equitable allocation of a shared resource among the parties concerned, however, or to settle questions 62

R. S. Jakhu/V. R. Serrano, International Regulation of Radio Frequencies for Space services, in: Legal Framework for commercial satellite communications, Proceedings of the Project 2001 – Workshop on Telecommunications (2000). 63

F. Lyall, Deriving More “Common Benefit” from Space Telecommunications, in: Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space: 17-21 October 2005, Fukuoka, Japan, Vol. 48, 461-470 (2006); Report of the Legal Subcommittee on its forty-sixth session, held in Vienna from 26 March to 5 April 2007, A/AC.105/891, para. 112. 64

S. Hobe, Adequacy of the Current Legal and Regulatory Framework Relating to the Extraction and Appropriation of Natural Resources in Outer Space, 32 Annals of Air and Space Law 115-130 (2007).

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of priority and geographical inequity which have proved in practice to be the most contentious questions affecting such resources.65 Similarly, in the field of the regulation of international watercourses criticisms have been raised against the principle of equitable utilization, since this principle cannot play more than a modest role in allocating riparian rights.66 It affords an insufficient basis for more comprehensive environmental protection measures. Nor does it ensure the integration of ecological, developmental and intergenerational considerations that are central to sustainable development, such as the overriding objective of contemporary water resources policy.67 It is also hardly reconcilable with ongoing commercialization through the privatization of such activities. One also has to recognize that the requirements for reaching equilibrium as emphasized by the economic analysis of law theory are not applicable to international situations due to the absence of at least the possibility of a free transfer of goods and titles. The transfer costs would undoubtedly be too high, so that they would be out of all proportion to the titles and goods to be transferred.68

IV. Managing Resources with Imperfect Knowledge According to Ostrom et al., a major issue of effective resource management is the availability of sufficient information, since uncertainty based on ignorance needs flexible institutions which adjust to better information, enable the quick setting of new limits of resource use according to the resource stocks, and possess low-cost conflict resolution methods.69 It is interesting to note that commons use regimes are particularly applied to resources that have not yet been completely investigated and 65

P. Birnie/A. Boyle/C. Redgewell (note 48), at 549 et seq.

66

G. Hafner, The Optimum Utilization Principle and the NonNavigational Uses of Drainage Basins, 45 Austrian Journal of Public and International Law 113-146 (1993). 67

E. Brown Weiss, Intergenerational Equity, Max Planck Encyclopedia of Public International Law (2009). 68

G. Hafner, Die seerechtliche Verteilung von Nutzungsrechten, at 67 et seq. (1987). 69

Ostrom et al. (note 36), at 465.

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explored, such as those of outer space and the deep seabed. As soon as new information becomes available and the resources can be explored and exploited more efficiently, e.g. due to technological progress, it is proposed to elaborate new mechanisms, since the existing one is deemed not to be adequate for the new situation. An example is, for instance, the Moon Treaty which was considered by several States to be sufficient as long as exploitation was not foreseeable.70 Currently, when exploitation seems in reach, this treaty is no longer considered adequate, so that an amendment is being demanded. But international treaty law does not provide a mechanism for easy and quick adjustment, so there will be long periods with a conventional resources management that does not reflect newly acquired knowledge.

V. Adaption to Change in Social and Environmental Conditions In the same vein, it is considered important that such regimes include institutional adaptation and flexibility “…because of increasing rates of change in the stocks of some resources and in the institutional environment, particularly at the international level”.71 The need for adaptation is reflected, in particular, in the history of the ITU, it being the oldest of all international organizations existing today, which was required regularly to revise, update and extend its structure, working methods and regulation to keep pace with new technologies, new services, and new needs. Despite this need, such a permanent adjustment is not easy in international law: in this respect the new negotiations regarding the Moon Treaty again best demonstrate the inflexibility of treaty regimes.72 In order to facilitate adjustment, some regimes contain review clauses and periodic review. However, practice, such as the Review Conference of the Straddling Fish Stock Agreement, evi70

Report of the Legal Subcommittee on its forty-eighth session, Vienna, 23 March to 3 April 2009, A/AC.105/935. 71 72

Ostrom et al. (note 36), at 466.

It is questionable whether the distribution system reflected in the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, of 13 December 1966 (Res. A/RES/51/122) corresponds to that envisaged in the Moon Treaty. In contrast to the Moon Treaty, the Declaration makes no reference to the common heritage of mankind what undoubtedly signals a certain uneasiness with this principle.

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dences the difficulty of such adjustment and the relative rigidity of treaty law. Generally, international law tends to be rather conservative and reluctant to accept changes which could respond to changed circumstances,73 and this applies to all regimes created by norms of international law.

VI. Establishing Appropriate Linkages Among Institutions Ostrom et al. emphasize the importance of linking institutions not only horizontally but also vertically: “The challenge of linkage is not to identify an appropriate institutional level for resource management – institutions at different levels all may have essential contributions to make – but to determine how institutions at various levels can be vertically linked.” The authors contend that “the most extreme challenges of linkage probably arise for global resource management (e.g. the atmosphere, the oceans, global biodiversity.)”.74 The need to connect and coordinate the different organizations, RFMOs or regimes is already frequently stressed in the context of the law of the sea.75 So, for instance, as far as marine genetic resources are concerned, a multitude of international organizations and treaty regimes are affected including UNEP, FAO, WIPO, Convention on Biological Diversity, CITES, ISBA, UN University, WTO, Antarctic Treaty, International Whaling Commission, OECD, Secretariat of the Pacific Environment, Global Forum on Oceans, Coasts and Islands. That the coordination of different organizations is inevitable can also be clearly seen in the field of space activities, since the ITU as well as the outer space arrangements address both the issue of distribution of frequencies and the distribution of orbital slots. As is the case in other fields of fragmentation in international law,76 different regimes dealing 73

J. Delbrück, “Peaceful Change”, in: R. Wolfrum (ed.), United Nations Law Policies and Practice, Vol. 2, 970–981 (1995). 74

Ostrom et al. (note 36), at 465.

75

Report of the Secretary General to the United National General Assembly, Oceans and the law of the sea, UN Doc. A/64/66/Add. 1, 25 November 2009, para. 218. 76 A. Mahiou, Interdependence, Max Planck Encyclopedia of Public International Law (2009).

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with the same matters risk undermining the authority of regulations in the absence of appropriate linkages. And indeed, in international fora, the need for more coordination among all actors involved in the same matter has frequently been emphasized,77 implying that this coordination has not yet been achieved.

F. Conclusions What can be concluded from this application of the design principles as set out by Ostrom et al. to the existing commons regimes under international law? The answer is that international law does not provide the necessary tools and means to ensure the efficient, sustainable distribution of the resources and the profits derived from these resources as defined above. We can identify the following as the main obstacles: International law is mainly enforced by the States which themselves benefit from the resources; it is subject to the consent of those States and does not affect States remaining outside the regime. Sovereignty rules out monitoring activities by other States, and even sanction mechanisms are of reduced efficiency. They can only result from treaty law or the law of State responsibility.78 Even the latter restricts countermeasures to the minimum, if they are permitted at all. International law is particularly rigid. This feature results from the need to provide stability in international relations. Hence, building a powerful regime that is able to deal with these tendencies raises not only the question of costs but also questions of sovereignty. The experience from the discussion during the Review Conference of the Straddling Fish Stocks Agreement shows that States are currently not inclined to accept such a restriction of their sovereignty.79 Recent developments further show that improving technology, which facilitates exploitation, as well as privatization leads to the acquisition 77

K. Sherman/G. Hempel (eds.), The UNEP Large Marine Ecosystems Report: a perspective on changing conditions in LMEs of the world’s regional seas, UNEP Regional Seas Report and Studies No. 182 (2009). 78

J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 254-306 (2002). 79

Supra note 43, at 23.

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of property rights entailing the possession of the resource, exclusion of others and recognition of title. A first sign of this development already became manifest in the conversion of “freedoms” into “rights”, as is reflected in the UNCLOS.80 Freedom can be viewed as unspecific in principle and can prevail when there is an abundance of resources. In the case of scarce resources, their allocation among States occurs by allocating rights among States. The present resource regimes were mostly designed when the access to the resources and their exploitation, or in any case the exhaustion of the resources, was still in the distant future. They are hardly able to avoid conflicts among exploiters and ensure that all participants and possible participants benefit from the exploitation of these resources. In light of feeble organizational structures it cannot be ruled out that States could resort to unilateral action resulting in the division of the formerly common resources. These considerations lead to the conclusion that free access to resources without major restrictive obligations being imposed on the participating States does not generate an efficient result, even if it is brought about under regimes with a plurality of partners. Existing systems that provide regulated access inevitably lend themselves to a relatively predetermined distribution of the resources which is not susceptible to change, for instance for the benefit of newcomers. It also has to be recognized that the regulation or steering system is not always able to ensure a distribution of resources without conflicts and frictions due to certain weaknesses inherent in international law. A distribution regime under international law of an area or resources outside the sovereignty of only one State, which would be able to ensure equitable and sustainable access to resources and their benefits, including equal rights for newcomers, presupposes that States accept more restrictions on their sovereignty than they have so far. These restrictions would be the result of increased enforcement measures designed to put into operation the distribution regulation within this regime. As in the field of human rights, which also constitutes a kind of commons, primary obligations are not sufficient to ensure their observance. What is needed is also an effective mechanism to ensure respect for such obligations. Such a regime must also encompass all possible users of such resources notwithstanding the fact that international law does not compel any State to ratify a treaty.

80 G. Hafner, Die seerechtliche Verteilung von Nutzungsrechten, 147 et seq. (1987).

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In this respect and in a more political perspective, if more obligations are imposed on States, in particular in the northern hemisphere, which lead to the restriction of free access to resources, all States participating in the relevant regimes, including developing countries, must accept more restrictions on their sovereignty in order to enable increased enforcement measures. Otherwise, a tendency is likely to emerge for unilateral systems, including individual States, to claim this function for themselves. This would result in further nationalization of the distribution of formerly common resources.

Judicial Action for the Common Heritage Tullio Treves

A. The Common Heritage The main question I will consider in this study is the following: are there ways to engage international courts and tribunals in protecting the common heritage of mankind? I will keep within the framework of the law of the sea, not considering incarnations of the “common heritage” in other fields, such as the regime of the moon, or similar formulations, such as “common concern of mankind”. At the outset, it seems necessary to clarify what is meant by “common heritage of mankind”. I do not think that in 2009 we need to consider the history of this concept in diplomatic negotiations and in legal texts.1 Suffice it to say that the United Nations Convention on the Law of the Sea (UNCLOS) does not define the “common heritage”. It affirms in article 136 that the “Area and its resources are the common heritage of mankind”. In article 311, paragraph 6, it adds that “States Parties agree that there shall be no amendment to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof”. These provisions indicate the geographical scope to which the common heritage applies, namely the Area (consisting, under article 1, a, of UNCLOS of “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”), that the common heritage is a basic principle (or that at least article 136 is the basic principle relating to it) and the agreement of the Parties that they will not agree to derogate 1

See the legislative history in UN Division for Ocean Affairs and the Law of the Sea, Concept of the Common Heritage of Mankind, UN sales Nr. E.96.V.3 (1996).

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_6, © Springer-Verlag Berlin Heidelberg 2011

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from it. The last indication gives a conventionally reinforced status to article 136, but does not make of it per se a jus cogens provision, as jus cogens develops through customary law.2 Be that as it may, nothing is said in article 136 about the legal meaning of “common heritage” in terms of rights and obligations of the parties to the Convention. The meaning of common heritage can be deduced from some rules setting out “principles governing the Area” which in UNCLOS follow article 136. These rules state, in particular: that the Area or parts thereof cannot be submitted to sovereignty or sovereign rights or appropriated by any State (art. 137, para. 1); that the resources of the Area are vested in mankind as a whole and that the International Sea-bed Authority shall act on its behalf (art. 137 para. 2); and that use of the Area shall be exclusively for peaceful purposes (art. 141). These provisions repeat almost literally what had been stated in UNGA Res. 2749 (XXV) of 17 December 1970. A key aspect of the common heritage concerns “activities in the Area”, namely “all activities of exploration for, and exploitation of, the resources of the Area” (art. 1(3)). Resolution 2749 (XXV) provided that “an international regime applying to the area and its resources and including appropriate international machinery to give effect to its provisions shall be established by an international treaty of universal character, generally agreed upon” (para. 9). UNCLOS article 140, stating that activities in the Area shall be conducted for the benefit of mankind as a whole “as specifically provided” in Part XI of UNCLOS, confirms that, as far as activities in the Area are concerned, the notion of common heritage is a label, a shorthand expression, to indicate a set of rules providing for a regime and a machinery, and that the treaty establishing such regime and machinery is indeed UNCLOS.3 We can conclude that, as far as activities in the Area are concerned, the notion of “common heritage” has no normative content as such, as it 2

See T. Treves, Problemas generales del derecho internacional a la luz de la Convención de las Naciones Unidas sobre el Derecho del mar, Cursos de derecho internacional de Vitoria-Gasteiz, at 60-62 (1984). 3

S. Nandan/M. W. Lodge/S. Rosenne, United Nations Convention on the Law of the Sea, A Commentary, Vol. 6, at 141 (2002), referring to the introduction in the draft of what was to become article 140, paragraph 1, of the expression “as specifically provided in this Part”, observe that: “The change in paragraph 1 was a fundamental substantive change depriving paragraph 1 of any independent content and reducing it to a cross-reference to other provisions of Part XI”.

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does not add to what is provided for in UNCLOS (including its 1994 amendments) as regards those activities. Common heritage means what is meant by the rules concerning the regime and the machinery.4 As regards other principles mentioned – in particular those concerning prohibition of the extension of sovereignty and sovereign rights, peaceful purposes, and the benefit of mankind – they set out obligations, and corresponding rights, for parties and for the Authority, and can also have a function as an expression of the object and purpose of the rules on the regime and of the machinery which can be relevant for their interpretation.

B. Possible Disputes Involving the Common Heritage Concept It is possible to conceive of different categories of disputes in which the rules which give content to the notion of the common heritage of mankind may be involved. One such category is provided for in UNCLOS. It includes disputes regarding activities in the Area. These disputes can be seen as those concerning the correct management and use of the Area and are consequently very relevant as far as the application and interpretation of the rules on the regime and the machinery set out in Part XI of the Convention are concerned. Disputes in this category may arise, for instance, out of a claim that a State to which a contract for the exploration and exploitation of the Area has been granted is contravening the conditions set out in the contract, or has alienated resources extracted from the Area without complying with the rules setting out the regime for activities in the Area, or from a claim that the Authority has 4 A different question is whether from the provisions on activities in the Area a notion of “common heritage” applicable to different activities (such as activities for the exploration and exploitation of genetic resources of the seabed beyond the limits of national jurisdiction) may be extrapolated. The present writer has mentioned the problem as an open one in T. Treves, Protection of the Environment on the High Seas and in Antarctica, in: Thesaurus Achroasium, Vol. 21, Protection of the Environment for the New Millennium, 74-125, at 91 (2002). For a view favourable to the applicability of the idea of the common heritage to genetic resources of the seabed beyond national jurisdiction see, with further references, A. Oude Elferink, The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and of the Freedom of the High Seas, 22 The International Journal of Marine and Coastal Law 143-176, at 149-154 (2007).

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arbitrarily refused to grant a contract when all relevant conditions were satisfied. A second category of conceivable disputes concerns the extension and limits of the Area. This category may include a dispute arising out of a claim that a State has proclaimed a continental shelf extending beyond 200 miles not complying with the relevant rules of article 76 of UNCLOS, thus appropriating a portion of the Area, and narrowing the spatial scope of the common heritage regime. It may also include a claim that the Authority has granted a contract for exploration and exploitation of mineral resources in a part of the Area which a State claims to be part of its potential continental shelf. A third category of disputes may concern the sharing of benefits from activities in the Area under article 140. It may also include disputes about payments and contributions, and the distribution thereof, in respect of the exploitation of the non-living resources of the outer continental shelf. The obligation of such payments and contributions set out in UNCLOS article 82 may be considered a form of compensation for the acceptance by the States convened at the Third UN Conference on the law of the sea of the encroachment into the Area that could be seen in continental shelves extending beyond 200 miles. It therefore has a connection with the notion of the common heritage of mankind.5

C. The Possibilities of Bringing these Disputes to Adjudication: Jurisdiction and locus standi The above short indication of conceivable disputes serves merely to describe the kinds of questions of law and fact relevant for the common heritage upon which States (and possibly other subjects of international law) may disagree – echoing the well known Mavrommatis definition of international disputes.6

5

S. Nandan/S. Rosenne, United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. 2, at 932 (1993): “Some States viewed the extension of the continental shelf beyond 200 nautical miles as reducing the international Area”. 6

Mavrommatis concessions (preliminary objections), PCIJ Series A, No. 2, 11 stating that a dispute is: “a disagreement on a point of law or fact, a conflict of legal views or of interest between the parties”.

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Before we can envisage such a dispute being submitted to adjudication, it is also necessary that it falls within the jurisdiction of a court or tribunal and that it arises between parties which have locus standi to participate in the proceedings. As we shall see in examining the different categories of disputes mentioned, the main difficulties in utilizing international courts and tribunals in order to protect the common heritage concern finding a competent tribunal and parties which have locus standi to submit the dispute to it. As regards jurisdiction of courts and tribunals, it obviously depends on the international instruments applicable to each court and tribunal. These instruments set out provisions concerning jurisdiction ratione materiae and ratione personae, and may distinguish between contentious and advisory jurisdiction. They require as a basis of jurisdiction agreement of the parties, but in many cases they consider that such agreement is given through the fact that the parties to the dispute are bound by the instrument establishing the court or tribunal or by a related instrument. In this case (that for our present purposes also includes the acceptance by the parties to a dispute of the “optional clause” of article 36, para. 2, of the ICJ Statute) we can speak of compulsory jurisdiction. In other words, the dispute may be submitted, at the request of one of the parties to the dispute, to a court or tribunal whose decision is binding. It would be too long, and it would be a repetition of well-known concepts, to explore the way each instrument concerning the settlement of disputes defines its jurisdiction. Similarly, to describe the relationships between various courts or tribunals would require embarking on a fascinating, but also largely explored, subject which would take us far away from our main purpose. What seems useful is to indicate the basic rules concerning jurisdiction ratione materiae and ratione personae according to UNCLOS. Ratione materiae disputes envisaged by UNCLOS concern the “interpretation or application” of the Convention (art. 286, and most other articles of Part XV). Jurisdiction to hear contentious cases on the subject is granted (through the well known mechanism of declarations and presumptions of article 287) either to the International Tribunal for the Law of the Sea (ITLOS) or to the International Court of Justice (ICJ) or to an arbitral tribunal. To these we must add disputes concerning the interpretation or application of other agreements relating to the law of the sea which accept the mechanism of Part XV of the convention for

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the settlement of such disputes, such as the UN Fish Stocks Agreement of 1995.7 A special category of disputes, those concerning “activities in the Area”, however falls within the jurisdiction of the Sea-Bed Disputes Chamber (SBDC), the eleven-judge Chamber established within ITLOS under article 186 and annex VI of UNCLOS. It seems important to underline that not all disputes concerning “activities in the Area” are included in the jurisdiction of the SBDC. Of these the Chamber’s jurisdiction covers only those falling within the categories listed in article 187 UNCLOS. It would seem that disputes concerning the interpretation or application of provisions of UNCLOS set out in part XI and not relating to “activities in the Area”, as well as disputes relating to such activities but not included in the categories of article 287, fall into the general jurisdiction for disputes concerning the interpretation or application of UNCLOS set out in its part XV. The argument in favour of such interpretation would seem stronger as regards disputes concerning Part XI but not “activities in the Area”, than it is about activities in the Area excluded from the jurisdiction of the SBDC under art. 187, as here a contrario reasoning would be seen possible. As far as consultative jurisdiction is concerned, no article of UNCLOS mentions it as regards ITLOS, the ICJ or arbitration tribunals, even though article 138 of the Rules of ITLOS envisages the possibility that an agreement related to the purposes of ITLOS will provide for the submission to the Tribunal of a request for such an opinion. Part XI, however, grants consultative jurisdiction to the SBDC at the request of the Council or the Assembly of the International Seabed Authority (ISBA). Such consultative jurisdiction of the SBDC as provided for in article 159, para. 9, and in article 191, is broader ratione materiae than the contentious jurisdiction of the Chamber defined in article 187. It includes “the conformity with this Convention of a proposal before the Assembly on any matter” (art. 159, para. 9) and “legal questions arising within the scope of … activities” of the Council or of the Assembly

7

A list of the jurisdictional clauses set out in these agreements is published in ITLOS Yearbook 2007 183 (2007). For comments see T. Treves, DisputeSettlement in the Law of the Sea: Disorder or System?, in: M. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law/La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international, Liber Amicorum Lucius Caflisch, at 927949 (2007).

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(art. 191). These matters and questions may, although in limited cases, not be included in the notion of “activities in the Area”. Locus standi is, at least in part, set out in the provisions of UNCLOS concerning access to the envisaged dispute-settlement bodies and the kinds of disputes that can be submitted to adjudication. Access to the adjudicating bodies having jurisdiction for contentious matters is “open to States Parties” under article 291, para. 1, UNCLOS. In light of article 1, para. 2, “States Parties” includes also self-governing associated States and territories competent on law of the sea matters, and international organizations in accordance with Annex IX”. This reference to international organizations includes, for the time being at least, only the European Community, but is not such as to derogate from the rule set out in article 34 of the Statute that only States can be parties to cases before the ICJ. In fact, article 7 of Annex XI, in extending the mechanism of declarations set out in article 287 to International Organizations parties to UNCLOS, does not permit them to declare a preference for the ICJ. As regards access to ITLOS, it may be open to different entities under article 20 of the Statute of the Tribunal, if provided by an agreement “conferring jurisdiction to the Tribunal which is accepted by all the parties to the case”. As regards the jurisdiction of the SBDC over disputes concerning “activities in the Area” access is open to various kinds of entities. These entities are not the same for all the categories of such disputes set out in article 187. They include, in addition to States parties, the Authority and the Enterprise, as well as parties to contracts or prospective contractors, which may also be State enterprises and natural or juridical persons. As regards the latter, article 190 of the Convention provides that, if such persons are parties to a dispute under article 187, States sponsoring them have the right to participate in the case (para. 1); and that if a State party is the defendant in a contractual dispute under art. 187 (c) in which the plaintiff is a natural or juridical person, it can request the sponsoring State to appear on behalf of that person, failing which it can arrange to be represented by a natural or juridical person of its nationality (para. 2). Complex problems arise under this article, such as: what is the status of the sponsoring State when it exercises its rights under art. 190, para. 1 and under para. 2? Why does para. 1 encompass only contractual disputes arising under article 187 (c), while para. 2 encompasses all disputes in which natural or juridical persons may be parties, and which can arise under art. 187 (c), (d) and (e)? In the present context it seems sufficient to note that this article is an indication of the hesitation and second thoughts of the States convened at the

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Third UN Conference on the Law of the Sea when confronted with the need to allow private persons to participate in litigation before an international court or tribunal. Similar concerns emerge as regards the right to trigger prompt release proceedings granted to private parties “on behalf” of the flag State, to which jus standi is primarily attributed (art. 292, para. 2). The most delicate issue concerning locus standi is not dealt with in written provisions. This is the question whether a State may submit to an international court or tribunal a case based on the alleged violation of a right it enjoys merely as a party to the convention. This is the question of erga omnes (or erga omnes partes) obligations and of its repercussion as regards locus standi before international adjudication bodies. This question, much debated in contemporary scholarly discussions, seems very relevant for some kinds of disputes which impinge on rules relating to the common heritage.

D. Disputes Regarding Activities in the Area These disputes, which may be classified as disputes concerning the correct management and use of the common heritage, are those considered in article 187. The jurisdiction of the SBDC chamber is limited by the requirements that the disputes concern “activities in the Area” and that they fall into one of the categories described in the article. The need for this double condition to be satisfied does not raise particular questions as regards disputes mentioned in article 187 (b)(c)(d) and, it would seem, (f). It seems relevant, however, as regards “disputes between States Parties concerning the interpretation or application of this Part [part XI of UNCLOS] and the Annexes relating thereto” mentioned in article 187(a), as there may be questions relating to the interpretation or application of Part XI which have no connection with “activities in the Area”: an example could be a dispute, requiring the interpretation or application of article 149, concerning archaeological and historical objects found in the Area. The different kinds of parties which may be parties to disputes concerning “activities in the Area” under article 187 have already been mentioned. As regards the subject matter of these disputes, a brief reminder will be sufficient as the subject has been examined in literature. These are, firstly, the above mentioned disputes between States parties concerning the interpretation or application of Part XI and annexes III and

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IV, which can be labelled normal international disputes (187(a)); and secondly, under article 187(b), disputes concerning the relationships between States parties and the Authority relating to violations of Part XI, its annexes, and rules, regulations and procedures of the Authority, as well as “acts of the Authority alleged to be in excess of jurisdiction or a misuse of power”. These disputes have clear similarities to those for which administrative judges are competent in certain States, and to some of those which can be submitted to the European Court of Justice. Thirdly, art. 187(c) lists disputes we can call “contractual”, involving parties to a contract or plan of work. Fourthly, art. 187 (d), mentions disputes of a “pre-contractual” nature between the Authority and a prospective contactor (which must be sponsored by a State) for refusal to contract or legal issues arising in contractual negotiations. The last mentioned two categories bear some analogy with disputes between States and private investors under ICSID and other conventions. Fifthly, under art. 187 (e), there are disputes concerning the liability of the Authority. Finally, art. 187(f), mentions “any other disputes for which the jurisdiction of the Chamber is specifically provided in th[e] Convention”. The formulation of this provision may perhaps be such as to justify a reading according to which it might include disputes not relating to the “activities in the Area”. The disputes which are sometimes considered to be comprised in this provision (those mentioned in article 185, para. 2, and in sections 6 and 8 of the 1994 Implementing Agreement) have to do, however, with “activities in the Area”. From the point of view of the correct management of the common heritage, the most interesting and topical question seems to concern disputes not included in the list in article 187 and which nevertheless concern “activities in the Area”. One such question has been discussed, without reaching a final solution, within the ISBA during its consideration of draft regulations on prospecting and exploration for polymetallic sulphides and later also for cobalt-rich ferromanganese crusts in the Area. The discussions focussed on how to deal with overlapping claims of prospective contractors for prospecting and exploring for these resources of the Area.8 This subject is not dealt with in the Convention. The regulations originally proposed contained a procedure inspired by that set out in Resolution II of the Third UN Conference on the Law of the Sea as regards overlapping claims concerning polymetallic nodules 8

ISBA/15/C/WP.2, Review of outstanding issues with respect to the draft regulations on prospecting and exploration for polymetallic sulphides in the Area (based on discussion concerning ISBA/15C/WP.1 of 2 September 2008).

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which aimed to ensure that requests for a contract would be made only after the elimination of overlapping claims. Through this procedure, negotiation and other amicable means would be utilized. Only as a last resort did it provide for recourse to binding commercial arbitration, which would not, however, be allowed to touch upon questions of interpretation or application of UNCLOS: these matters were to be deferred to the SBDC for a ruling.9 In a later, but not final, version, all mention of third party adjudication has been omitted.10 It may be discussed whether, under existing rules, disputes about overlapping claims could arise between a State and the Authority under article 187(b) or (d), the main difficulty being that such disputes can be imagined only where the question has reached the Authority. It may also be envisaged that the question, upon which the organs of the ISBA are deliberating, be submitted by such organs under article 191 to the SBDC for an advisory opinion as a legal question “arising within the scope of their activities”. The discussion going on at the ISBA seems to show that States as represented therein are reluctant to involve dispute settling bodies, and in particular the SBDC. Still, it may be wondered whether the correct management of the common heritage would really be better entrusted to negotiations between a few interested States or to commercial arbitrators, than to a judicial body elected by all parties to the Convention. Such body can be expected to develop a jurisprudence which is at the same time consistent and mindful of the object and purpose of UNCLOS.

E. Disputes Concerning the Extension and Limits of the Area The extension and limits of the Area are an essential aspect of the common heritage. They concern the spatial scope of the rules through which the idea of the common heritage finds its expression in UNCLOS. The Area is defined in article 1(1) as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Conse9

Informal paper on Discussions of the Informal Open-Ended Working Group Facilitated by New Zealand dated 1 June 2009. 10

2009.

Proposed Compromise text based on Chinese amendments dated 4 June

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quently, its limits and extension depend on the limits of the continental shelves of States. As China stated in a document of 2009: The seabed and subsoil and ocean floor beyond the continental shelf of coastal States are the International Seabed Area as the common heritage of mankind. Therefore, to determine the outer limits of the extended continental shelf is at the same time to clarify the scope of the Area, which is of great importance to the overall interests of the international community in the Area.11 The outer limits of the continental shelf are fixed in UNCLOS at the 200 mile line, unless extended by the coastal State beyond that line when the conditions set out in article 76 are satisfied. It is well known that under article 76(8) the limits of the shelf established by the coastal State beyond 200 miles “on the basis of” the recommendations of the Commission on the Limits of the Continental Shelf “shall be final and binding”. The view has emerged more than once in recent practice that the Authority or the Meeting of the UNCLOS States Parties should have a say where it can be alleged that the outer limits of the continental shelf of a State have been established in violation of article 76. The award handed out in 1991 by an arbitration Tribunal established to settle the dispute between Canada and France concerning the delimitation of maritime areas in the region of Saint-Pierre et Miquelon expressed a similar feeling in deciding that the Tribunal lacked jurisdiction to extend the delimitation line to the outer continental shelf (as France had requested). It adopted a restrictive reading of the arbitration agreement and made the following remarks: Any decision by this Court recognizing or rejecting any rights of the Parties over the Continental shelf beyond 200 nautical miles would constitute a pronouncement involving a delimitation not “between the parties” but between each one and the international community, represented by organs entrusted with the administration and protection of the international sea-bed Area (the sea-bed beyond national jurisdiction) that has been declared to be the common heritage of mankind.12 The Arbitration Tribunal added that:

11 12

Doc. SPLOS/196 of 22 May 2009, para. 1.

Award of 10 June 1992, 31 International Legal Materials 1145 (English) (1992); U.N. Reports of International Arbitral Awards, XXI, 270 (French).

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This Court is not competent to carry out a delimitation which affects the rights of a Party which is not before it.13 In its document of 2009 quoted above, China holds the view that submissions to the Commission on the Limits of the Continental Shelf should take into account “the overall interests of the international community” and should not constitute an abuse of right or “encroach upon the Area as the common heritage of mankind”. It gives, as an example of a submission not fulfilling these requirements, a submission using “an isolated rock in the ocean as base point”, in light of article 121 para. 3, of UNCLOS stating that rocks of certain characteristics shall have no exclusive economic zone or continental shelf. These views clash with the hard fact that the ISBA, the entity which could better represent (the “logical choice” according to Rüdiger Wolfrum)14 the interests of the international community in the Area or the common heritage, has locus standi limited to some of the disputes mentioned in article 187, which do not include disputes against coastal States for encroaching on the Area through the establishment of the outer limits of their continental shelves. In the delimitation dispute between Barbados and Trinidad and Tobago15, notwithstanding references made by the parties, the Arbitral Tribunal did not follow the award in the Saint-Pierre et Miquelon dispute, and stated that the jurisdiction of an arbitrator who has to draw a single delimitation line between the maritime areas of two States “includes the delimitation of the maritime boundary in relation to that part of the continental shelf extending beyond 200 n.m”.16 Even disagreeing on the point just mentioned, it chose not to discuss the points raised by Barbados regarding the reference to the common heritage made in the Saint-Pierre et Miquelon award. Possibly, it felt it unwise and unnecessary to disagree openly with the view underlying that reference, that there must be a way to protect the inter-

13

Id., para. 79.

14

R. Wolfrum, The Role of the International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf, in: R. Lagoni/D. Vignes (eds.), Maritime Delimitation, 19-31, at 28 (2006). 15

Award of 11 April 2006, available at www.pca-cpa.org, (where the written and oral pleadings are also available) and in 45 ILM 798 (2006). 16

Para. 384 (ii) included in the dispositif.

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ests of the international community when extensions of the continental shelf are effected beyond the limits permitted by article 76.17 So, a dispute concerning an extension of the continental shelf allegedly infringing article 76 is conceivable only if raised by a State party to UNCLOS against another State Party. This would be a dispute concerning the interpretation or application of the Convention. While such dispute could have broad scope if the outer limit of the continental shelf had been established by a State without making a submission to the Commission for the Limits of the Continental Shelf, its scope might not cover all possible discrepancies with the rules of article 76 where the outer limit of the continental shelf had been established on the basis of the recommendations of the Commission. The “final and binding” character of such establishment provided in article 76, para. 8, would probably be an obstacle, as would the difficulty of challenging in a legal forum scientific and technical findings of a scientific and technical body which must be recognized as having a measure of discretion.18 A more likely dispute which could arise would concern whether the outer limit of the continental shelf established by a coastal State conformed to the recommendations of the Commission. This dispute could, arguably, also include whether the Commission had acted within the limits of its competence, as set out in a “conclusion” of the ILA Committee on the Legal Issues of the Outer Continental Shelf.19 But in what cases has a State party to UNCLOS locus standi to engage in such a dispute? If it can be shown that a State has a right specifically belonging to it which is infringed by the establishment of the outer limits of its continental shelf by another State there is no doubt that such State has the required locus standi. This could happen if, for instance, it can be shown that a State’s right to conduct scientific research on the Area under article 143 UNCLOS has been curtailed by an illegitimate extension of the continental shelf by another State as such extension would make the rather restrictive article 246, para. 6, applicable. In this case it could be argued that the conflict would be between the right to 17

See my remarks in T. Treves, La communauté internationale et la délimitation du plateau continental au-delà des 200 milles marins, in: Mélanges en l’honneur de Jean-Pierre Puissochet, 311-315, at 315 (2008). 18

See L. D. M. Nelson, The Continental Shelf: Interplay of Law and Science, in: N. Ando/E. McWhinney/R. Wolfrum (eds.), Liber amicorum Judge Shigeru Oda, at 1235-1253 (2002). 19 International Law Association, Toronto Conference (2006), Legal issues of the outer continental shelf, Second Report, Conclusion Nr. 21.

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exercise the freedom of the high seas on the seabed and the right to extend the continental shelf beyond 200 n.m. One could also envisage the case of a neighbouring State whose continental shelf would be encroached upon by the extended continental shelf. A dispute of this kind would have to do with a conflict about areas under national jurisdiction, and not with the prevention of encroachment in the Area. Moreover, in light of that article 76, para. 10, states that the provisions of the article “are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts”, and in light of the Rules of Procedure and practice of the Commission for the Limits of the Continental Shelf to consider only submissions that do not involve delimitation problems with other States20 (including collective submissions in which the submitting States reserve the right to agree on delimitation of the shelf whose outer limits are to be established),21 cases of this kind are extremely unlikely. The real question is whether a State, as party to UNCLOS, has locus standi to claim before a court or tribunal competent under article 287 of the Convention that its rights under Part XI have been infringed by the establishment by another State of the outer limits of its continental shelf in violation of article 76. As Wolfrum stated: “it seems difficult to avoid taking a position whether individual States may act on behalf of the international community in this respect”.22 The traditional approach would question this possibility. Even Judge Nelson, a writer certainly not averse to the notion of the common heritage, in light of the well known dictum of the ICJ in the South West Africa case stating that a right to take legal action ‘‘in vindication of a public interest … is not known to international law as it stands at present”,23 states that: “it seems doubtful … whether any State Party has the competence to take action to vindicate this international collective interest unless it can be shown that its interests had been harmed by these claims”.24 20

See Art. 46 and Annex I to the Rules of Procedure of the Commission for the Limits of the Continental Shelf, in Doc. CLCS/40/Rev.1. 21

Art. 46, para. 4 of Annex I to the Rules of Procedure of the Commission for the Limits of the Continental Shelf quoted at note 20. 22

Wolfrum (note 14), at 30.

23

South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Reports 1966, 6, para. 88, at 47. 24

Nelson (note 18), at 1251.

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However, as Wolfrum emphasized, “international law has undergone significant changes as far as the recognition of community interests are [sic] concerned”.25 The ILA Committee on the Legal Issues of the Outer Continental Shelf, chaired by Judge Nelson, has stated that States Parties “individually” have an interest in the exploration and exploitation of the Area and in exercising “certain high seas freedoms in the seabed beyond the limits of national jurisdiction” and that: “[t]he existence of this interest in the resources of the Area and these high seas freedoms can be considered to give individual States a legal interest in the definition of the outer limits of the continental shelf”. Moreover, the right belonging under UNCLOS to each State party that the establishment of the outer limits of the continental shelf by any other State party be effected in conformity with article 76 can be seen as a right corresponding to an erga omnes partes obligation. The Institut de droit international, in its resolution on obligations erga omnes in international law adopted at the Krakow session in 2005, states that: In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to the dispute concerning compliance with that obligation.26 The Institut, in rejecting the originally proposed restriction on the notion of erga omnes rights consisting in the requirement that the State to which the obligation is owed must be “specially affected”,27 seems to assume that all States parties to the treaty have a right to the compliance with these obligations by each of the other States parties and that this 25

Wolfrum (note 14), at 30.

26

Article 3 of the Resolution, in: Institut de droit International, Annuaire, Vol. 71, tome II, 287. See also the Plenary debates id., 81-137. The reports by Mr. Gaja and comments by Members are in Annuaire, Vol. 71, tome I, 117-212. A detailed scholarly study, reaching conclusions similar to those of the Institut, is that of C. Tams, Enforcing Obligations Erga Omnes in International Law, at 158-197 (2005). 27 Such requirement had been included in article B of the Draft Resolution submitted to the Krakow session (Annuaire, Vol. 71, tome II, 83); the corresponding article 2 of the Resolution adopted specifies, to the contrary, that all the States to which the obligation is owed are entitled to make claims to the responsible State “even if they are not specially affected by the breach” (id., at 287).

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right overlaps with their standing to bring a claim to the competent international court or tribunal, provided a jurisdictional link exists.28 In light of such opinion it would seem possible to argue, as Wolfrum does, that “States can take action to protect established interests of the international community”, including those concerning the extension and limits of the Area.29 According to a view I had an opportunity to state in commenting on the quoted article of the Institut’s resolution: “[t]he sum of the two requirements consisting in the existence of the jurisdictional link and of that a party is owed, without being specially affected, an obligation erga omnes, would not 30 seem such as … to support jus standi in all cases. It will be for the court seized of the dispute to decide whether the importance of the obligation for the international community31 (as well as for the State introducing the claim) is such as to make the juridical interest relevant enough to

28

See the intervention by Mr. Torres-Bernardez, Annuaire, Vol. 71, tome II, 109 et seq. and the observations by C. Dominicé, A la recherche des droits erga omnes, in: O. Corten (ed.), Droit du pouvoir, pouvoir du droit, Mélanges offerts à Jean Salmon, 357-371, at 366-367 (2007). He calls the position of the Institut on jus standi “une avancée spectaculaire” which has some precedents in conventional regimes (as the Genocide Convention), while “la situation en droit international général n’est pas encore claire” (367). 29

Wolfrum (note 14), at 30. Similarly ILA Committee (note 19), conclusion Nr. 20. 30 31

That is to say, the right to the observance of the law (footnote added).

According to the view which seems to be prevailing, the notion of erga omnes obligations is not limited to a structural requirement. It also contains the requirement that these obligations protect particularly important values: in the words of the Preamble of the above-quoted Kracow resolution of the Institut, “the fundamental values of the international community”; according to Tams’ terminology, they require a “threshold of importance”, they “protect values of heightened importance” Tams (note 26), 156, at 310. The relevance of the assessment of the importance of the values protected by the obligations seems particularly relevant (and open to different solutions) in the case of obligations set out in multilateral treaties (erga omnes partes obligations). In the view of one of the rapporteurs on International responsibility of the ILC, Gaetano ArangioRuiz, the characteristics which distinguish erga omnes obligations are only structural: Fourth Report on State Responsibility, in: ILC Yearbook, 2(1), 1, at paragraph 92 (1992) [note in the original].

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justify the existence of a right to trigger proceedings before an international court or tribunal”.32 In my view, the case envisaged concerning article 76 would be an egregious one for the court or tribunal to use to consider the interest in protecting the right deriving from an erga omnes obligation relevant enough. An aspect which could be taken into consideration by the court or tribunal would be that the ISBA, the international body which, according to the Convention’s article 137, para. 2, shall act on behalf of humanity in which are vested all rights in the resources of the Area, is denied locus standi. Action by States parties before an international court or tribunal should be seen as the only available way to protect the extension of the Area, and thus the spatial scope of the common heritage.33 Such action would nevertheless be just a second best as compared to the de jure condendo solution of granting locus standi to the Authority. Action by an individual State against another individual State to protect common interests would unavoidably be subject to and perhaps discouraged by considerations concerning political and financial costs.

F. Disputes Concerning the Sharing of Benefits Under UNCLOS two kinds of benefits are to be shared: benefits deriving from activities in the Area, in accordance with article 140, para. 2, and benefits deriving from the exploitation of the non-living resources of the outer continental shelf (the “payments and contributions” mentioned in article 82).While under article 140 equitable sharing will be effected by the Authority, under article 82 it will be effected through the Authority. This difference notwithstanding, article 160, paragraph 2(f)(i) considers jointly the power of the Assembly of the ISBA to adopt rules, regulations and procedures for the “equitable sharing” of

32

T. Treves, The Settlement of Disputes and Non-Compliance Systems, in: T. Treves/L. Pineschi/A. Tanzi/C. Pitea/C. Ragni/F. Romanin Jacur (eds.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Law, 499-518, at 515 (2009). 33

Nelson (note 18), 1352, links the “need” to give judicial protection to regimes such as the deep seabed regime to according to States parties a right of actio popularis and to granting the ISBA the right to institute proceedings for such protection.

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benefits deriving from activities in the Area and of payments and contributions made under article 82. From the perspective of the settlement of disputes, and notwithstanding the historical connection of the obligation to make payments and contributions in article 82 with the notion of common heritage,34 the two kinds of benefits should be considered separately. Those under article 140 are connected to “activities in the Area”, while those under article 82 are not. Consequently, as regards disputes concerning the sharing of benefits deriving from activities in the Area, it must be determined whether a dispute on this matter is included in one or more of the categories of disputes with respect to activities in the Area listed in article 187. It would seem that this may be the case as regards the category mentioned in article 187(b). In light of this provision one could imagine a dispute instituted by a State (perhaps a developing State) against the Authority claiming that the share of benefits it has received is not “equitable” and involves discrimination, in violation of article 140, para. 2. The plaintiff State could also claim that the rules, regulations or procedures adopted by the ISBA under article 160, para. 2(f)(i) have been infringed in determining or paying its share of benefits. In light of article 187 (b)(ii), a dispute could concern an act of the Authority alleged to be in excess of jurisdiction or a misuse of power. Such act could be the very rules, regulations or procedures mentioned in article 160, para. 2(f)(i), or the decision distributing the benefits to States, in particular to the claimant State or States. In this kind of case, according to article 189, the SBDC shall, however, have no jurisdiction with regard to the exercise by the Authority of its discretionary powers, nor “to pronounce itself on whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures”. The conformity with UNCLOS of rules, regulations and procedures including those concerning sharing of benefits under article 140, para. 2, may, however, be the subject of a request for an advisory opinion of the SBDC, as explicitly mentioned in article 189. This possibility may be used while the rules, regulations or procedures are under discussion, perhaps to help break a possible deadlock in the decision-making process under article 160, para. 2(f)(i) in the event of a disagreement between the Assembly and the Council. 34

See above section B.

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As regards disputes relating to payments and contributions with respect to the exploitation of mineral resources of the outer continental shelf, one could imagine that they concern the alleged violation by a State exploiting such resources of its obligation to make these payments or contributions under article 82 para. 1, or of the rates and timing for such payments or contributions indicated in article 82, para. 2. These would be disputes between States Parties to UNCLOS concerning its interpretation or application falling within the jurisdiction of a court or tribunal competent under part XV of the Convention.35 As regards the locus standi of a State Party to institute such dispute it must be recalled that these are obligations erga omnes partes and that consequently the discussion above as regards locus standi for alleged infringements of article 76 applies. In the disputes concerning article 82, however, developing States, particularly the least developed and the land-locked among them, have a special interest, as emerges from paragraph 4 of that article. One of these States, or, better, a coalition of these States, would be able to claim to be specifically affected by the violation, so that the discussion about erga omnes obligations could be avoided and locus standi would be easier to argue. As regards disputes concerning the role of the Authority in distribution of payments and contributions in accordance with article 82, para. 4, it must be recalled that, beyond disputes concerning activities in the Area, the Authority does not have locus standi under the Convention. Consequently, it does not seem possible to take contentious action against it. The activity of receiving and distributing the payments and contributions, as well as the fixing of equitable sharing criteria, including the adoption of rules, regulations or procedures under article 160, para. 2(f)(i), may nevertheless involve “legal questions arising within the scope” of the activities of the Assembly or the Council. This would make it possible for each of these organs to request an advisory opinion of the SBDC under article 191.

35

See ILA, Rio de Janeiro Conference, Outer Continental Shelf, Report on article 82 of the 1982 Convention on the Law of the Sea (UNCLOS), para. 4, conclusion Nr. 12 (2008).

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G. Conclusions The observations above show that, even though, according to article 137, para. 2, of UNCLOS, the Authority is said to “act on behalf” of mankind as a whole, in fact, when action to defend mankind’s interests before an international judge is concerned, the role recognized to it is limited to litigation against States and contractors or prospective contractors concerning the good administration of the common heritage within the framework of activities in the Area. This limitation creates lacunae in the judicial protection of the good administration of the common heritage on subjects concerning activities in the Area not included (at least in most cases) within the categories of disputes listed in article 187, such as overlapping claims of prospective contractors, or on subjects not covered by the notion of “activities in the Area” but included in the activities of the Authority, such as questions relating to the Authority’s role in the sharing of payments and contributions under article 82. Notwithstanding some indications of dissatisfaction, this is very clearly also true of judicial action for the protection of the geographical scope of the Area. The Authority lacks jus standi for claiming that, through unlawful extension of its continental shelf, a State has reduced the extension of the Area. Judicial protection of the common heritage remains entrusted to States. They can be seen as having a right to the correct application of the rules set out in UNCLOS for the establishment of the outer limits of the continental shelf, and also to compliance with the obligations to make payments and contributions under article 82. Still, this is less than satisfactory. Locus standi for the protection of a right based on an erga omnes obligation is a concept at the beginning of its consolidation in international law.36 It might not be successful if submitted to a court or tribunal, even though the protection of the common heritage would seem a very promising ground for achieving 36

The decision of the Commission for the limits of the Continental shelf not to consider the United States observations on the submission by Brazil (see docs CLCS/41, paras. 16-17 of 14 September 2004, CLSC/44, para. 17 of 17 May 2005) does not augur well for taking into account positions in the interest of the common heritage. See T. Treves, Remarks on the Submissions to the Commission on the Limits of the Continental Shelf, Response to Judge’s Marotta Report, 21 The International Journal of Marine and Coastal Law 363-367, at 366-367 (2006).

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such consolidation. Moreover, effective protection of the common heritage by judicial means requires the political will of a State or of a group of States to act to exercise such protection. Such political will may find obstacles in considerations arising from existing relationships with the possible defendant States, from conflicting interests of the State, from the financial and manpower requirements of going to Court. Civil society action may play a relevant role in encouraging certain States to submit to international courts and tribunals claims for the protection of their erga omnes rights based on rules protecting the interest of mankind and in overcoming the obstacles which may hamper a decision in favour of such submission. All this reflects the political balance reached in UNCLOS. The role of the Authority, seen by many as too pervasive, was curtailed, especially as regards matters not included in the notion of activities in the Area. States and their rights and obligations were left at centre stage. One may wonder whether a more institutionalized protection of common rights would have been preferable as compared with the decentralized and somewhat random protection which States can provide.

Law of the Sea and Security

East African Piracy and the Defense of World Public Order Mahnoush H. Arsanjani / W. Michael Reisman

We are grateful for the opportunity to contribute an essay on the law of the sea in a volume honoring our friend, Rüdiger Wolfrum. As scholar and judge, Rüdiger Wolfrum has instructed a generation on the law of the sea and, even more distinctively, has shaped the field in his roles as an innovative decision maker. Because so much of Professor Wolfrum’s work addresses contemporary problems, we have chosen to focus on a current, acute problem in the law of the sea: the challenges presented by the recrudescence of piracy in the Gulf of Aden and the Arabian Sea. New forms of piracy in the Gulf of Aden and the Indian Ocean have brought piracy to the forefront and international lawyers and policy makers are struggling to install mechanisms that can control it. We hope to show, using some of the methods of the New Haven School, that (i) the developments there are best conceived of as a problem of the restoration and maintenance of public order rather than as a stricto sensu “legal problem”; and (ii) viewed in context from that perspective, only some of the techniques for the protection of public order are applicable.

A. Common to all legal systems is a set of fundamental sanctioning strategies for the protection, restoration, and improvement of public order.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_7, © Springer-Verlag Berlin Heidelberg 2011

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While they have been expressed in many forms, they may be synthesized into seven specific strategies:1 (1) Preventing imminent discrete public order violations; (2) Suspending current public order violations; (3) Deterring, in general, potential future public order violations; (4) Restoring public order after it has been violated; (5) Correcting the behavior that generates public order violations; (6) Rehabilitating victims who have suffered the brunt of public order violations; and (7) Reconstructing, in a larger social sense, in order to remove conditions that appear likely to generate public order violations. Preventing is an anticipatory public order function. It anticipates the imminent rupture of public order and ex ante, seeks to intervene before the rupture eventuates, with the aim of obviating it. Once a rupture has occurred, suspending seeks, ex post, to arrest the injuries by focusing on the agent of the violation. It involves an immediate response to the breach of public order, terminating the breach and containing the destructive effects of the act. While preventing and suspending are specific to particular violations of public order, deterring is more general. It involves the use of various conjectural devices to assist in crafting current responses so that they will discourage putative violators in the future from committing those violations. Deterrence may be accomplished by credible threats of deprivatory consequences for violations and/or promises of indulgences and rewards for compliance; it may also be accomplished by demonstratively effective preventions, showing that those violations will not be profitable. Correcting involves identifying and adjusting individual or group patterns of behavior that have generated or may generate ruptures of public order. Rehabilitating focuses on the victims and may involve compensation in various forms designed to redress injuries. Social reconstructing involves identifying social situations that generate or provide fertile ground for violations of public order, and introducing resources, including constructing institutions that can obviate such situations. These seven strategies are cumulative in the sense that an efficient public order system performs all of them, though the achievement of some, 1 See generally R. Arens/H. D. Lasswell, In Defense of Public Order (1961); M. S. McDougal et al., Law and Public Order in Space (1963).

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such as prevention and deterrence, will reduce the urgency of some of the others. The common denominator of each of these strategies, however, is to protect, reestablish, or create a public order characterized by low expectations of violence and a heightened respect for human rights. When the institutions assigned to fulfill these goals are effective, disruptions of public order will be minimized and the destructive consequences of those that do occur will be contained. In organized domestic political and legal systems, in which the challenges to public order tend to follow a pattern, institutionalized techniques for the protection of public order emerge. They are appropriate for the contexts in which they operate but it would be wrong to assume, from that experience, that in responses to all public order challenges, there is a one-size-fits-all answer. For those charged with designing strategies or institutions for the protection of public order, the challenge is not to imitate or mechanically transpose but rather to adjust and shape institutions or design strategic programs that, in their idiosyncratic context, will secure the protective goals of public order. In many of the unique contexts that present themselves in international politics, variables such as the perspectives of the violators of public order, their goals, the nature of the part of public order they are violating and other contextual features will be important factors in determining the appropriate design of responses. One can, for example, imagine feasible techniques designed to suspend attempts at maritime piracy which would be utterly inappropriate for aviation hijacking or techniques for dealing with terrorism in Afghanistan which would be inappropriate for dealing with terrorism in Germany. Similarly, one can imagine techniques for responding to criminality motivated by a desire for gain which could prove ineffective for criminal acts by psychotics or by persons seeking martyrdom. Piracy in the seventeenth and eighteenth centuries had some implications for security and certainly imposed a transaction cost on those economic exchanges which depended on delivery by sea. But piracy could not be characterized as a real or latent threat to the system of world public order. International law’s strategic responses to piracy of the time, including its regulatory regime, were designed to fit the magnitude of the problem, other international policies that may have been engaged and the circumstances of the time. And, indeed, as we will show, the classical strategies and legal arrangements still fit much contemporary “garden variety” piracy. But since customary international law is inertial, the historic conception and regime for dealing with generic piracy may dominate thinking about how to deal with the case of

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piracy in East Africa. Yet the phenomenon called piracy at the beginning of the twenty-first century is a different “business model” from earlier forms of piracy, may attract other imitators and could prove far more noxious than its predecessors. Moreover, it is occurring in an environment so different from that which preceded it, that it may require different ways of thinking about it, different packages of public order strategies and different legal arrangements. Like older piracy, the ships and cargos that are currently at risk have significant commercial value and any damage to ships, crew and cargo will be costly to the industry, insurance companies, and eventually to the consumers. But the technologies of rapid movement over the surface of the oceans and the miniaturization of highly destructive weapons provide enhanced opportunities for entrepreneurial pirates to operate effectively. Most critical, however, is the fact that unlike earlier forms of piracy, contemporary piracy is occurring in a new security context; powerful organized crime organizations with global ambitions are now significant actors in the international process, as are terrorist groups.2 The actual and potential synergies between them are cause for concern, for modern organized crime is no longer local nor is it only involved in or connected to commercial ventures. Organized crime groups are not known for their patriotism or civic responsibility; in their selection of partners and customers, they practice strict nondiscrimination and equality of opportunity. Thus, opium traffickers are a major supplier of finances for Al-Qaeda and the illegal arms merchants, a global and multi-million dollar business, are the suppliers of terrorist groups.

B. The Third Law of the Sea Conference dealt comprehensively with all the major issues of the public order of the oceans. Piracy, however, merited almost no discussion; the provisions in the 1958 Convention on the High Seas were simply carried over. 2

See W. M. Reisman, Aftershocks: Reflections on the Implications of September 11, 6 Yale Human Rights and Development Law Journal 81 (2003); W. J. Olson, International Organized Crime: The Silent Threat to Sovereignty, 21 The Fletcher Forum of World Affairs 65 (1997); W. M. Reisman/M. H. Arsanjani/S. Wiessner/G. S. Westerman, International Law in Contemporary Perspective, 349-351 (2004); and M. Naim, Illicit, 12-37 (2005).

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Piracy was authoritatively defined in Article 101 of the United Nations Law of the Sea Convention3 (UNCLOS) in the following terms: Definition of piracy Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). UNCLOS also defines a pirate ship or aircraft4 and establishes a right of seizure. Article 105 provides: Seizure of a pirate ship or aircraft On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. But only certain categories of vessels are entitled to effect seizure. Article 107 provides: Ships and aircraft which are entitled to seize on account of piracy A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

3 4

1833 UNTS 397.

United Nations Convention on the Law of the Sea, Article 103, see supra note 3.

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The discussions of the issue of piracy at the UNCLOS conferences do not appear to have been an issue of contention. One of the historic functions of the public order of the oceans over the past 200 years has been to maintain them as a broad freeway for transportation; ocean transport has been a principal means of commercial exchange for millennia. That function is served by the venerable principle of the freedom of navigation and also explains the international legal regime prohibiting piracy. As is clear from the UNCLOS provisions, the concern for the freedom of navigation has also led to a preference for confining regulatory competence over vessels plying the oceans to the states whose flag those vessels fly. The suppression of piracy is an exception but the narrowness with which it has been drawn reflects a concern that extending national regulatory or policing competences, even for good reason, could infringe on the theretofore exclusive jurisdiction of states over vessels flying their flags and, thus, limit the very freedom of the seas which piratical acts threaten. Hence piracy on the order of petty brigandage, which, hitherto, was its most common form, was largely regulated by means of marine insurance; since most of it was conducted against ships at anchor in territorial waters, it was subject to the police powers of the coastal state. Piracy, which takes the form of hijacking of vessels and holding their crews for ransom, especially when conducted in a major maritime thoroughfare on the high seas, presents a challenge for which third party insurance and national police resources may be insufficient. Another critical contextual change is the permeation in this century of human rights into all public order defensive strategies and actions by an internationally supervised human rights system. As explained below, this has acted as a restraint on the implementation of many public order actions that might otherwise have been deployed against East Africa piracy.

C. The International Maritime Organization (IMO) provides statistics on reports of acts of piracy and armed robbery going back to 1984.5 IMO 5

See Live Piracy Map, available at .

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statistics are compiled primarily from incident reports collected by the International Maritime Bureau Piracy Reporting Center, a division of the International Chamber of Commerce. The Piracy Reporting Center maintains a live map of piracy and armed robbery incidents. Statistics on piracy tend to merge all acts of vandalism at sea and, in that regard, may tend to dilute the significance and violence of a key part of the contemporary phenomenon. IMO statistics include both attempted as well as successfully committed acts of piracy and armed robbery. They classify incidents as occurring in international waters,6 territorial waters, or in a port area, and provide information regarding the object of the raid and the armaments of the pirates. The IMO reports that the typical attack in most areas of the world is conducted against or on a ship at anchor in territorial waters.7 Setting aside the East Africa region, nearly eighty percent of attacks in 2008 were conducted within twelve nautical miles of the shore (hence not piracy jure gentium), and in the vast majority of these the target vessel was stationary.8 Hijacking – an extremely noxious form of piracy – has, at least until now, been very rare outside of East Africa; there were only seven reported cases (six of them in the South China Sea) in 2008.9 Simple robberies of provisions or cargo are considerably more common. Even when a hijacking does occur outside East Africa, the hijackers’ goal rarely seems to be ransom. Rather, the pirates kill or maroon the crew and re-register the vessel in order to create a “phantom vessel” useful for other criminal activities.10 This modus operandi may be dic-

6 The “international waters” category includes all incidents occurring outside the twelve mile strip of territorial waters as defined by Article 3 of the United Nations Convention on the Law of the Sea, see supra note 3. 7

International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report − 2008, available at [hereinafter Annual Report − 2008]. 8

The target vessel was confirmed to be steaming in only twenty two percent of reported incidents. See Annual Report − 2008, id. 9 10

Annual Report − 2008, see supra note 7.

R. Middleton, Piracy in Somalia: Threatening Global Trade, Feeding Local Wars, Chatham House Briefing Paper No. AFP BP 08/02, at 3, available at .

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tated by the absence of a secure haven, such as the one available to Somali pirates. Over most of the past twenty five years, the hot spots for maritime piracy were the South China Sea and the Strait of Malacca, the major shipping lane that lies between Malaysia and Indonesian Sumatra.11 The IMO has also reported significant pirate activity in the waters off Western Africa and around South America and the Caribbean.12 Worldwide, the number of reported incidents of piracy remained fairly low − under one hundred per year − until the mid-1990s.13 Between 1994 and 2000, the annual rate of pirate attacks spiked sharply, driven largely by increased activity in the South China Sea as well as a sharp increase in the Strait of Malacca and the Indian Ocean at the end of the century.14 It may be attributed to the closing of a major U.S. naval base in the Philippines. The year 2000 saw the peak of maritime piracy, with four hundred seventy one (471) incidents worldwide.15 Excepting another small spike in 2002-2003 that appears to have been caused by small increases in pirate activity worldwide,16 the annual rate of reported incidents of piracy declined through 2006, during which the IMO reported just two hundred forty one attacks.17 Since 2006, the annual rate of piracy has again been rising steeply, driven largely by the rapid expansion of pirate activity in the East Africa region.18 With the exception of the spike in East Africa, the relative distribution of pirate attacks in recent years is fairly typical of the entire period for which the International Maritime Organization provides statistics. 11 12 13 14

Annual Report − 2008, see supra note 7. Id. Id. Id.

15

International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report − 2000, available at [hereinafter Annual Report − 2000]. 16

Annual Report − 2008, see supra note 7.

17

International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report − 2006, available at [hereinafter Annual Report − 2006]. 18 Annual Report − 2008, see supra note 7. The following section examines the situation in East Africa in more detail.

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Many forms of piracy continue in the South China Sea, though as of 2008 it is no longer the epicenter of pirate activity.19 Throughout the late 1990s and early 2000s, the South China Sea typically experienced between one hundred (100) and one hundred fifty (150) incidents of piracy per year.20 However, piracy has declined markedly in the region; between sixty and seventy incidents per year is typical in recent years.21 Piracy activity has increased somewhat in West Africa, rising from twenty three incidents in 2005 to thirty one in 2006,22 and rising again to sixty in 2007 before declining slightly to fifty in 2008.23 Though this marks an increase in the relative frequency of piracy in the region, in absolute terms, the current rate is not atypical of the past decade.24 Piracy in the Indian Ocean and Latin America has been declining steadily: from fifty to twenty six incidents in the Indian Ocean and from thirty one to nineteen in Latin America between 2006 and 2008.25 There are two significant anomalies. The first, of course, is the expansion of pirate activity in East Africa, which will be discussed in the next section. The second is the near absence of pirate activity in the Strait of Malacca in recent years.26 From a peak of one hundred twelve incidents in 2000,27 pirate activity has declined to a mere two incidents in 2008.28 This is likely due to the type of piracy practiced there and to increased local enforcement following Lloyd’s of London’s classification of the area as a “war zone” for the purposes of calculating insurance premi-

19

In 2008, the IMO reported one hundred thirty four (134) incidents in East Africa as compared with seventy two (72) in the South China Sea. Annual Report − 2008, see supra note 7. 20

In 2008, the IMO reported one hundred thirty four (134) incidents in East Africa as compared with seventy two (72) in the South China Sea. Annual Report − 2008, see supra note 7. 21

Id.

22

Annual Report − 2006, see supra note 17.

23

Annual Report − 2008, see supra note 7.

24

See id., annex 2.

25

Annual Report − 2008, see supra note 7; Annual Report − 2006, see supra note 17. 26 See Posting of Mike Nizza to The Lede, available at (15April 2008, 10:49 EDT). 27

Annual Report − 2000, see supra note 15.

28

Annual Report − 2008, see supra note 7.

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ums. We will return to that success story in our consideration of possible remedies for East African piracy.

D. The novel threat caused by Somali pirates29 and those who may yet imitate or even improve on their business model differs from the character of a typical pirate attack. Although piracy off the coast of Somalia has been a persistent problem for the last decade, the last three years have seen a sharp increase in reported acts of piracy in the Gulf of Aden and Somali waters.30 The International Maritime Organization reported thirty one incidents of piracy in the region in 2006,31 sixty in 2007,32 and one hundred thirty four in 2008.33 The IMO reports for 2009 are currently only available through October, but they suggest that the piracy problem in Somalia is continuing to worsen. Including attempted acts as well as those actually committed, the IMO reports one hundred and seventy-two incidents from January through October.34 Assuming that this rate is maintained, in 2009, there will have been more attacks in the East Africa region than there were worldwide in 2008.35

29

The next section will explain how piracy in East Africa differs from the account of a typical attack given here. 30 31

Id. Annual Report − 2006, see supra note 17.

32

International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report − 2007, available at [hereinafter Annual Report − 2007]. 33

Annual Report − 2008, see supra note 7.

34

See International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships, MSC.4/Circ.139-142. 35

One should of course be wary of attempting to extrapolate the annual rate of piracy incidents from only through October data. Although data from previous years does not suggest significant seasonal variation in the rate of piracy in East Africa, the high variance in the number of reported incidents in each month of 2009 makes precise prediction impossible. Nevertheless, it is clear that international efforts to control piracy in the region have not yet met with much success. See International Maritime Organization, Reports on Acts of Piracy and Armed Robbery Against Ships issued monthly, during September

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Although the sheer number of incidents in the seas off the eastern coast of Africa is itself significant, the novel character of the attacks makes the situation even more problematic. A disproportionate percentage of attacks in the East Africa region occurs in international waters while the target vessel is steaming. For example, in 2008, forty seven attacks were committed against steaming ships in East Africa compared to a mere ten attacks while the target was at anchor.36 The South China Sea was the only other region with a significant number of attacks on steaming ships with twenty one such incidents as compared to thirty one against stationary vessels.37 Although many of the attacks in “international waters” near East Africa occur close to land − particularly those perpetrated in the Gulf of Aden − attacks have occurred far from the coastline. 38 In its most recent set of guidelines for avoiding pirate attacks, the International Maritime Bureau’s Pirate Response Center has recommended staying six hundred nautical miles from the coastline when traveling past the East African coast.39 Of course, this recommendation only applies outside the Gulf of Aden, which has a mean width of roughly three hundred nautical miles. But even outside the Gulf of Aden, the recommended buffer has proved inadequate. In April, 2009 a fishing trawler was hijacked six hundred and thirty nautical miles southeast of Mogadishu (nearly two hundred nautical miles north of the Seychelles).40 A Chinese coal-laden cargo ship was seized 700 nautical miles off the coast of Somalia on 19 October 2009.41 Attacks, this far from 2009 in MSC.4/Circ.143 of 30 October 2009 and during October 2009 in MSC.4/Circ.145 of 10 November 2009. 36

Annual Report − 2008, see supra note 7. The status of the target ship was unspecified in four incidents. 37

Id. The status of the target ship was unspecified in ten incidents.

38

For example, the MV Faina was seized over two hundred nautical miles from the shore. See J. Gettleman/M. Ibrahim, Somali Pirates Get Ransom and Leave Arms Freighter, The New York Times, 5 February 2009, available at . Some attacks have occurred as far as 700 nautical miles off the coast. See Annual Report − 2008, supra note 7. The New York Times, 22 October 2009, A-11. 39

International Maritime Bureau Piracy Response Center, Best Management Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia 6 (2009), available at . 40 41

Annual Report − 2008, see supra note 7. The New York Times, supra note 38.

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land, are typically carried out from a “mother ship” from which pirates launch small skiffs when a target vessel is sighted.42 Pirate attacks off the coast of Somalia now follow a consistent modus operandi: the target ship is hijacked and its crew is held hostage in the hope of obtaining a ransom payment in return for release of ship, crew and cargo. The IMO reports that in 2008 forty four vessels were hijacked in East African waters as compared with just seven in other regions.43 This trend shows no signs of abating: in the first nine months of 2009, 168 incidents of piracy were reported off Somalia compared to 111 during all of 2008. Hostage-taking is also disproportionately represented in recent East African pirate attacks: in 2008, seven hundred and three crewmen were taken hostage in the region while only seventy one hostages were taken elsewhere in the world. By way of comparison, the IMO reported one hundred ninety four crewmen taken hostage worldwide in 200744 and one hundred eighty in 2006.45 Piracy in East Africa is also distinguished by the size of the ships targeted for attack. For example, in late 2008, pirates based in Somalia seized the Sirius Star, a Saudi oil tanker carrying $100 million worth of crude.46 In early 2009, a $3 million ransom was paid for the ship’s release.47 Just one month later, a $3.2 million ransom was paid for the MV Faina, a freighter captured the previous September while hauling thirtythree Soviet T-72 tanks and a cargo of weapons and ammunition.48 More recently, it is reported that Spain paid $3.5 million in ransom for the release of the Spanish fishing vessel, Alakrana, captured on October 2, 2009 with 36 crew member on board.49 42

Middleton (note 10), at 4.

43

Annual Report − 2008, see supra note 7.

44

Annual Report − 2007, see supra note 32.

45

Annual Report − 2006, see supra note 17.

46

See M. Ibrahim/G. Bowley, Pirates Say They Freed Saudi Tanked for $3 Million, The New York Times, 9 January 2009, available at . 47

Id.

48

See J. Gettleman/M. Ibrahim, Somali Pirates Get Ransom and Leave Arms Freighter, The New York Times, 5 February 2009, see supra note 38. 49

The New York Times, 18 November 2009, at A-10. It is reported that 80 luxury cars crowded the shore, at Xarardheere, Somalia, as friends of family members of the pirates assembled for a share of the ransom money being divided among the pirates.

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Piracy in East Africa is distinctive for still other reasons. Somalia, as a failed state, cannot control the areas where the seized ships are sequestered nor control the pirates in their redoubt. The piracy is conducted by many young men who have no employment. Those who are actually in charge are far away in places unknown, as is their identity. Whether they are organized crime elements or terrorists is unknown. Because of this, the usual criminal-control technique of deterrence cannot work. Moreover, legal restraints limit the amount of force which might be used in arresting them. Indeed, if they are captured, they look forward to relatively brief periods of incarceration in jails in Europe or North America which are comparatively more comfortable than the lives they lead. Upon release, they can claim refugee status, a prospect unwelcome to public opinion there. As a consequence, the prospect of arrest does not act as a deterrent. In fact, many of the European navies operating in the Gulf of Aden have been instructed not to arrest the pirates. But even their arrest and conviction would have no deterrent effect, for the real beneficiaries of the piracy manage it from a distance and are not threatened by any possible defensive actions in the arena of the Gulf.

E. The United Nations Security Council has passed a series of resolutions aimed at curtailing piracy in the East African region. Security Council resolution 1851 authorizes states to undertake anti-piracy operations in Somali territorial waters as well as ashore and permits the seizure of property reasonably suspected to have been involved in the commission of acts of piracy.50 There are currently a number of international fleets dedicated to combating piracy in the region who may benefit from this authority. In January 2009, the United States Naval Forces Central Command (NAVCENT) established Combined Task Force 151 to conduct antipiracy missions in the Gulf of Aden and seas off the Eastern coast of Somalia.51 This fleet took over pirate suppression duties from Combined Task Force 150, the primary mission of which had been counter-

50 51

See SC Res. 1851 of 16 December 2008.

See L. Ploch et al., Piracy off the Horn of Africa, Congressional Research Service Report 16 (2009).

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terrorism activities.52 As of April 2009, the task force consisted of over two dozen ships from over a dozen countries including the United States, the United Kingdom, and regional states such as Saudi Arabia and Yemen.53 Other nations, such as Russia, China, and India, have independently contributed vessels.54 NAVCENT commanders reported to Congress in March 2009 that CTF-151 and cooperating forces had disarmed and thus far released one hundred twenty one (121) pirates, turned one hundred seventeen (117) over for prosecution, and was still holding an additional nine (9) pirates.55 In the past year, the North Atlantic Treaty Organization has also deployed fleets to the region to conduct anti-piracy operations. Operation Allied Protector, launched in March 2009, is tasked generally with disrupting pirate attacks against vessels traversing the region.56 As of April 2009, this task force was not authorized to detain captured pirates.57 These multi-national fleets have engaged in a number of distinct antipiracy missions. Combined Task Force 150 (and subsequently Combined Task Force 151) has established a “Maritime Security Patrol Area”, a stretch of ocean in the Gulf of Aden that is patrolled by coalition warships. Although a useful service, this provides protection only in a small area of the Gulf of Aden.58 This idea might be extended even further by the creation of escorted convoys of merchant ships, but given the high volume of commercial traffic through the region, such a system may prove too costly to administer.59 Rather than organizing corridors or convoys, the international community could simply increase the naval presence in the region. However, given the rapidity of the attacks − as few as fifteen minutes might elapse between sighting a target vessel and boarding it60 − and the vast expanse of ocean threatened by Somali pirates, it is unlikely that a military vessel will reliably be in range to stop an attack in progress. Multi-national fleets with 52 53 54 55 56 57 58 59 60

Id. Id. Id. Id. Id., at 17. Id. See Middleton (note 10), at 10. See Ploch et al. (note 51), at 26. See Middleton (note 10).

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more targeted missions have also been established. In October 2008, NATO established Operation Allied Provider to provide security for World Food Program deliveries of food aid to Mogadishu.61 This operation was terminated in December 2008 after the European Union launched Operation ATALANTA to provide security for World Food Program deliveries as well as nearby merchant vessels.62 As of April 2009, Operation ATALANTA consisted of twenty vessels.63 Given the vast area in which the pirates can operate and the speed with which a ship can be commandeered, the naval presence has not significantly reduced the volume of piracy. Nor have the naval forces arrested and rendered for trial those pirates who were apprehended. Reporting to the Security Council, Ahmedou Ould-Abdallah, the UN Special Representative for Somalia, stated that while the deployment in 2008 of an international naval fleet in the Gulf of Aden to curb pirates had considerably reduced the number of successful incidents in the region, the number of attacks had not diminished.64 He said that the threat remains and in some ways is becoming more entrenched as more sophisticated methods are being adopted and attacks are taking place further out at sea. European states have been reluctant to arrest and try pirates apprehended in flagrante. When, as in the Spanish case, a European government is prepared to do so, it comes under intense pressure from the pirates who may threaten the execution of hostages. Insofar as prosecution is not a feasible strategy, prevention becomes all the more important.

F. There have also been efforts to establish a regional cooperation agreement to enable local states to coordinate their anti-piracy measures. As with direct international enforcement, a regional cooperation agreement can help to raise the cost to pirates by increasing the likelihood of capture and prosecution. The International Maritime Organization has sponsored the creation of the Djibouti Code of Conduct, a regional co61 62 63 64

See Ploch et al. (note 51), at 17. Id. Id.

18 November 2009, reported by AFP online, .

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operation agreement adopted by seventeen regional governments in January 2009, nine of which have subsequently signed the agreement.65 The agreement calls for the construction of a Maritime Rescue Coordination Centre in Mombasa, Kenya, a Sub-Regional Coordination Center in Dar es Salaam, Tanzania, and a regional information center in Sana’a, Yemen.66 This agreement is similar to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships (ReCAAP), signed by the coastal nations of Southeast Asia and in force since 2006. Although ReCAAP has largely been deemed successful in suppressing piracy in the South China Sea,67 there are reasons to believe that such an agreement will meet with less success in East Africa. The primary center of pirate activity in the South China Sea in the early years of this decade was the Strait of Malacca, a very narrow channel between continental Malaysia, Singapore, and Indonesia. Acts of piracy committed in the strait were generally concentrated in a small area in easy reach of the maritime enforcement organizations of stable, industrialized nations. By contrast, piracy in the waters off East Africa occurs over a vast area of the Indian Ocean in addition to the relatively confined area of the Gulf of Aden. Moreover, Somalia itself is unable to provide its own local enforcement organization. This last concern may be addressed by the creation of a local Somali maritime enforcement agency. Although private actors have met with little success in establishing a maritime security force in the region,68 an internationally authorized and funded force may prove more successful. Though no such program has been officially implemented to date, on July 28, 2009 the European Union announced its intention to train a local Somali anti-piracy force.69

65 66 67 68 69

Id., at 18. Id. Id., at 19. See Middleton (note 10), at 11.

See EU to Train Somali Piracy Force, BBC News, 28 July 2009, available at .

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G. Nor has the market neutralized the problem. The costs of Somali piracy to the shipping industry are substantial. Lloyds of London has classified the region as a “war zone” for the purpose of calculating insurance premiums, adding $400 million in insurance costs to ship operators.70 Moreover, ship owners have been forced to double the wages of crew.71 Some vessels have chosen to circumvent the region, traveling around the Cape of Good Hope instead of through the Suez Canal, increasing fuel costs as well as decreasing the annual delivery capacity of a vessel.72 Needless to say, a sharp increase in the costs of shipping may further destabilize international commerce already weakened due to the recession.73

H. In terms of public order goals, the piracy phenomenon off the Somali Coast presents unique challenges to world public order; many of the strategies for restoring public order are inapplicable. The critical factor that enables what until now has only been enterprisory piracy is the fact that the Somali state has failed and, as a result, a sanctuary for the pirates is available along the northern Somali Coast. Pirates benefit from safe havens. Hijackings thrive when the attackers are able to make use of a friendly port. The public order strategies of restoration and reconstruction are most appropriate. Somali piracy could not be conducted if the land sanctuary were denied. Paradoxically, the key to ending this form of piracy is to be found on the land and not on the water but it is impossible at the moment. The self-sustaining solution is to establish a functional state in Somalia capable of supporting a local enforcement regime in cooperation with other regional states and, most important, of denying any sanctuary areas for the pirates. But the appetite for a land invasion by 70

See Paul Betts, Somali Pirates on Private Sector Radar, Financial Times, 15 June 2009. 71

Id.

72

See Department of Transportation, Economic Impact of Piracy in the Gulf of Aden on Global Trade. 73

Ploch et al. (note 51), at 26.

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armed forces of states whose ships have been hijacked is well under control. In addition to the international legal problems that such an intervention would present, the presence of hostages at any moment acts as a real restraint, since an attack on the land sanctuary would probably lead to the execution of the hostaged seamen. Although a recent piece in the New York Times proposed that the autonomous government in Puntland might perform that function by international delegation,74 the idea seems impracticable both from a political and military standpoint. The presence of hostages that restrains international action would exercise a similar restraint on any indigenous governmental action. Thus the fourth and seventh goals for the protection and improvement of public order, restoration and reconstruction, are not feasible at the present time. Failed state problems in the present international security environment are more than an economic burden on the rest of the world. They are a breeding ground for global terrorism. For many reasons, their repair should be a long-term objective of international decision, given the contagious character of a failed state in the East African region. That said, it is not immediately feasible as a solution to the urgent piracy problem. Piracy will only continue as long as the costs of engaging in hijackings are outweighed by the received ransom payments. To reduce the status of piracy as a lucrative business, at the most basic level, ship owners could simply cease paying ransoms. There is some risk that East African pirates would switch tactics to mirror the typology of pirate attacks in other parts of the world.75 There have also been concerns that a sudden cessation of ransom payments would induce pirates to resort to violence against hostages.76 These concerns are not misplaced, but reducing or eliminating ransom payments would reduce the potential benefit of hijacking vessels, thus deterring piracy in the region even if only incrementally. The United Nations Monitoring Group on Somalia has reached a similar conclusion, finding that ransom payments from piracy attacks have become the most lucrative sector of the Somali economy and urging international action to reverse the cost-

74

J. Bahadur, Heroes in a Land of Pirates, New York Times, 4 January 2010,

A21. 75 76

See Middleton (note 10), at 11. Id.

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benefit ratio of hijackings.77 The Monitoring Group Report has also linked the recent rapid increase in Somali piracy to the underenforcement of the international arms embargo on Somalia, suggesting that multi-national fleets in the region step up interdiction of illicit arms transports.78

I. While it is essential to identify and remove the root causes of piracy and eliminate financial incentives, a conventional public order strategy is to make sure that there exist significant sanction and punishment for piracy. Although piracy is recognized as triggering universal jurisdiction, under Article 105 of the Law of Sea Convention, the jurisdiction over a pirate remains with the “State which carried out the seizure” to decide on the penalty. The principle of universal jurisdiction for piracy which was expressed ex cathedra, as it were, in Judge Moore’s Dissenting Opinion in the Lotus Case reflects the world of 1927. In that opinion, Judge Moore states that a person charged with piracy “may be tried and punished by any nation into whose jurisdiction he may come”.79 This definition of universal jurisdiction is problematic in the context of the twenty-first century and prosecution of pirates by the countries that actually capture them may also prove problematic. There are two primary concerns with capturing countries asserting jurisdiction. The first is a lack of experience in prosecuting piracy cases. Before the capture of Abduwali Abdukhadir Muse and his subsequent arraignment in federal court in the Southern District of New York,80 the last pirate case tried in United States courts occurred in 1861.81 Second, there are concerns about the human rights of suspected pirates. For example, the United Kingdom Foreign Office, concerned that handing pirates over to local 77 Report of the Monitoring Group on Somalia pursuant to Security Council resolution 1811 (2008), UN Doc. S/2008/769, para. 266. 78 79

Id., at para. 264. The Case of the SS “Lotus”, PCIJ 1927, Series A, No. 10, 3, at 37 et seq.

80

See J. Bone, Somali Pirate Abduwali Abdukhadir Muse in US for Maersk Alabama Hijack Trial, London Times, 22 April 2009, available at . 81 See The Savannah Privateer: Trial for Piracy − Great Throng in Court, The New York Times, 24 October 1861.

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Islamic authorities might lead to the violation of their human rights or that captured pirates may try to claim asylum, directed the Royal Navy to refrain from detaining pirates.82 Local prosecution is preferable to prosecution by the capturing state for both logistical and geopolitical reasons. To that end, Kenya signed agreements with both the European Union and the United States in early 2009 to receive pirates captured in East African waters.83 Furthermore, the Djibouti Code of Conduct calls on signatories to ensure that local law provides an avenue for prosecuting suspected pirates.84 However, the sheer scale of the piracy problem in the region may overwhelm the local justice systems’ financial and legal capabilities; the commander of Combined Task Force 151 recently reported that over one hundred pirates had been turned over to governments for prosecution since the force’s inception.85 The unique situation in East Africa also makes goals such as suspending or deterring ineffective. Regional cooperation agreements modeled on a partnership between Southeast Asian countries which appeared to be effective there, promise little in East Africa. The deployment of multinational military fleets has also proved ineffective to simply informing ship captains of strategies to evade pirates. The challenges posed by Somali hijacking suggest that traditional suppression techniques will be unable to provide a complete solution.

J. Strategies dealing with modern piracy should develop around the one strategy which recommends itself for its feasibility: prevention, stopping piracy during its occurrence. The direct suppression of piracy − 82

See M. Woolf, Pirates Can Claim UK Asylum, London Times, 13 April 2008, available at . 83

See Germany Mulls Legal Recourse for Nine Seafaring Suspects, Spiegel, 6 March 2009, available at . 84

See J. S. Porth, Legal Experts Take Action to Prosecute Pirates, America.gov, 27 February 2009, available at . 85

See supra note 55 and accompanying text.

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that is, directly preventing pirates from boarding ships − is crucial. That necessarily means a reversion to the types of self-help that were used by merchantmen plying the seas in earlier centuries. The disturbing record of private security companies in international law cannot be ignored but, like the problem of a corrupt police force at the national or subnational level, the answer is correction rather than abolition of police. Private police forces are well-known fixtures in many states. In international politics, military contractors have emerged as useful tools and have even been used by international organizations. In the air transport industry, air marshalls have become one of a range of practices to prevent skyjacking, analogous to maritime piracy. One means of mitigation of piracy would be the incorporation of private military contractors on ships transiting pirate-infested waters. This proved to be useful in fighting back the pirates in their second attack on Maersk Alabama in November 2009, discussed below. Ship captains have been increasingly able to employ evasive maneuvers to thwart an attempted pirate attack.86 Some vessels have begun to take more direct security precautions, such as hiring private security87 or employing non-lethal means of deterring attacks such as sonic generators or fire hoses.88 For example, Maersk Alabama, the Americanflagged ship that was seized by pirates in April and whose captain was held at gun-point by pirates on a lifeboat, was attacked, again, on 18 November 2009, 600 miles off the northeast coast of Somalia bound for the Kenyan port of Mombasa. But this time, a security team on board responded with small-arms fire, long-range acoustical devices painful to the human ear and evasive maneuvers to thwart the attack. Apparently four of the pirates were killed and two were injured. Some observers speculate that these measures may ultimately prove more costly than occasional ransom payments.89 If more immediate and forceful military operations in territorial waters and on land to piracy from failed states is to be undertaken, permission for such operations should come

86

Statistics released by the International Maritime Organization reveal a sharp increase in successful use of evasive measures by ship captains in the East African region. 87 88 89

Id., at 25. Middleton (note 10). Ploch et al. (note 51), at 26.

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through Chapter VII as was done in the Security Council resolutions on Somalia.90

K. A crisis is a situation in which key values of the community are threatened. Although the familiar mantra of crisis is “this is no time for blame”, the fact is that a crisis is a situation which the community’s decision makers failed to anticipate and provide for. One of the reasons why crisis situations develop is that those charged with decision responsibilities look at events in isolation and fail “to connect the dots”, in other words, fail to see their potential relation to other events and the lethal consequences of such synergies. Strategies to address prospectively a situation which – if not checked – will become a crisis, even if taken, will have been limited to a simple rather than a correlated and even systemic response. Crisis is, in this sense, a failure of decision making. Such a failure may be occurring with respect to piracy. In the world of continuing advancement of technology, in which despite globalization and access to common sources of information and encouragement for common values of human rights and democracy, there are opportunities for those opposing the public order to challenge it by lethal means. Whether current terrorist acts of individuals or organized groups are only temporary, reflecting an “infection” or a form of “a la mode” expression of discontent, or prove to be a more durable modern problem, they remain serious threats to public order. Organized crime has become a lucrative business and also modern terrorism has proven to be creative in joining hands with other criminal organizations in securing their goals or taking advantage of unanticipated opportunities that may present themselves.91 Significant sources of finance for Al-Qaeda and the Taliban comes from trafficking opium in Afghanistan. As for inspired individual or small groups of terrorists, who 90

See SC Res. 1814 of 15 May 2008, SC Res. 1816 of 2 June 2008, SC Res. 1838 of 7 October 2008, SC Res. 1844 of 20 November 2008, SC Res. 1846 of 2 December 2008 and SC Res. 1851 of 16 December 2008. 91

On May 2, 2010, The New York Times reported that radical Islamist insurgents seized “one of the country’s most notorious pirate dens … raising questions about whether rebels with connections to Al Qaeda will now have a pipeline to tens of millions of dollars – and a new ability to threaten global trade.” New York Times, 3 May 2010, A4.

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are more mobile and difficult to detect and are always in search of opportunity to make their once-in-a-life time mark, cooperation with or the use of the modus operandi of piracy will continue to present an irresistible opportunity. Piracy as it has evolved in East Africa, therefore, may yet prove to be much more than an economic irritant, a transaction cost which the insurance industry can integrate into the price consumers ultimately pay. It may, if not checked, evolve into a global security threat. Other actors, with more than economic interests, may view the opportunities offered by contemporary piracy as presenting useful strategic options. Salafist terrorist groups may find the disruption of marine traffic a useful and highly dramatic “propaganda of the deed” which also imposes substantial costs on the political-economic systems which they view as their licit targets. They may also use it as a technique for securing funding for their other activities. It should be stopped.

Piracy at Sea – a New Approach to an Old Menace Thomas A. Mensah

I am grateful to the organizers for the invitation to participate in this Dialogue, an event that is dedicated to the work and achievements of Rüdiger Wolfrum. I am particularly happy to have been asked to speak on one of the currently topical issues of the law of the sea. As we all know, the law of the sea is one of the many fields of academic inquiry and practical diplomacy in which Rüdiger has operated and to which he has made such a uniquely important contribution. Rather unexpectedly, piracy has turned out to be one area in which the modern law of the sea has been shown, if not exactly to have feet of clay, at least to be less than the comprehensive and effective legal regime that it was previously believed to be. For when one considers the claims that have been made over the years about the uniqueness of the law of the sea and when one recalls all the many statements about the special virtues of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), one is forced to admit that the record of the law of the sea, and particularly the 1982 Convention, in dealing with the problem posed by piracy and other unlawful acts at sea has, to say the least, not been particularly encouraging. Indeed, it must be rather uncomfortable for anyone who has previously believed in the merits of the 1982 Convention to note how the Convention has proved to be so unable to deal credibly and effectively with what is generally considered to be one of the most pressing practical problems confronting the international shipping and maritime community.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_8, © Springer-Verlag Berlin Heidelberg 2011

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Mensah

A. Piracy in the Traditional Law of the Sea This was not always the case. For there is not much disagreement about the crime of piracy under traditional law of the sea; and there has long been a consensus, in both public and private international law of the sea, regarding the powers and obligations of States with respect to acts of piracy and persons engaged in acts of piracy, in areas within and outside their jurisdiction. Indeed, until quite recently, it was believed that the traditional definition of piracy, as contained in judicial decisions and finally codified in international conventions, constituted an adequate basis for determining not only the essential characteristics of the offence of piracy but also for determining the measures which individual States could legitimately take to deal with acts of piracy, and with persons alleged to have been engaged in such acts. The questions raised by the Santa Maria and the Achille Lauro incidents were not seen as seriously undermining the continued validity of this consensus.1 The general view at the time was that the offences committed in these incidents did not fully fit the parameters established for piracy under customary international law or in the relevant provisions of the 1958 and 1982 conventions.2 For this reason it was considered necessary to supplement the law with a new regime to deal with these new offences. The result was the introduction of the new offence of “armed robbery against ships” as a separate, though related, threat to international shipping.3 1

Details of the Santa Maria incident may be found in M. Q. Mieja, Defining Maritime Violence and Maritime Security, in: P. K. Mukherjee/M. Q. Meija/G. M. Gauci (eds.), Maritime violence and other security issues at sea, Proceedings of the International Symposium at the World Maritime University, 34 (2002). For more on the Achille Lauro see M. Jacobsson, Terrorism at Sea – Transcript of oral presentation, id., at 157– 159. 2

Convention on the High Seas, 29 April 1958, Arts. 15-22, 450 UNTS 6465, and United Nations Convention on the Law of the Sea, 10 December 1982, Arts. 101-107, 1833 UNTS 31363. The general view was that, strictly speaking, the acts in these incidents were not acts of “piracy” as understood in international law of the sea. See M. Halberstam, Terrorism on the High Seas; the Achille Lauro, Piracy and the IMO Conventions on Maritime Safety, 82 American Journal of International Law 269-310 (1988). For a contrary view see S. Manefee, The Achille Lauro and Similar Incidents as Piracy: Two Arguments, in: E. Ellen (ed.), Piracy at Sea, 179-180 (1989). 3

Art. 3, para. 1(a) of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention 1988) defines the

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Indeed, the Security Council of the United Nations, following the lead of the International Maritime Organization (IMO) has recognized the dual nature of the current threat faced by international shipping. In its resolution 1816 of 2 June 2008, the Security Council emphasized the need to combat both the traditional acts of piracy, as well as “armed robbery against ships”.4 Armed robbery against ships is defined by IMO as: “any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences”.5 This two-facetted approach has been incorporated in the International Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (1988 SUA Convention) and its revised version of 2005.6 The purpose of these instruments was to ensure that, at least in theory, there would be no gap in the international law relating to illegal acts against merchant shipping. Any act that could have an adverse effect on the safety of navigation at sea, or can be proved to have been intended to have such an effect, was to be dealt with by reference to agreed international law procedures, whether or not the act fell within the strict ambit of the definition of “piracy” under conventional or customary law of the sea.7

B. Recent Developments In general the difficulties created by recent incidents of piracy and violent acts against shipping have not been due to doubts or disagreement about the proper characterization of the acts involved. Rather, the difficulties arise from doubts and uncertainties concerning the measures that new offence as seizing or exercising control over a ship “by force or the threat of force or any other form of intimidation”. 4 5 6 7

SC Res. 1816 of 2 June 2008. IMO Res. A 922(22) of 29 May 2001. 10 March 1988, 27 ILM 672 (1988).

The 1988 Convention broadens the scope of the offence to include all “unlawful acts” against a ship or persons and property on board, regardless of where the ship might be. It also makes the offence punishable under the laws of any State in which the offender or alleged offender might be found.

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States are entitled, individually or collectively, to take in order to implement and enforce the law which all concerned agree to be applicable to the incidents and acts. This has been true of the illegal acts at sea that have faced the international maritime community within the past three or four decades, including the incidents of piracy against ships in the Gulf of Guinea off West Africa as well as the spate of pirate activities in the Straits of Malacca. It is equally true of the recent widespread and serious acts in the seas off the coast of Somalia and in the wider waters of the Gulf Aden. In West Africa and in the Straits of Malacca, most of the acts had all the aspects of traditional piracy. They involved well organized gangs operating against largely defenceless ships over wide areas of the sea. However, after initial failures and disappointments, the threat was eventually contained, due mainly to resolute and effective action, based on cooperation between the coastal states, other interested states and the shipping industry.8 A new and relatively unprecedented situation of organized and extremely violent acts of piracy has recently arisen first in the waters off Somalia and, subsequently, in the wider Gulf of Aden. The phenomenon has now escalated to a degree which has put shipping in the whole area in serious jeopardy. Several special features of the new situation have made the problem different and more difficult. The first is that there is no effective government in Somalia. Hence there is no authority on which the international community can rely either to deal with the perpetrators or to give authorization to others to do what is necessary. As a result, pirates are able to bring the ships that they seize into the territorial sea or to ports within Somalia, with every confidence that they can do so with impunity and for as long as they wish. In this the pirates are fortified by the knowledge that, as a consequence of previous disastrous adventures in the country, many powerful maritime states are unwilling to venture anywhere near the territory of Somalia. The other disturbing aspect of the situation is that the pirates are no longer interested in the cargoes on board the ships, as used to be the case with traditional pirates and the individuals and teams that operated in the Gulf of Guinea and the Straits of Malacca. In this case, ships are 8

On the earlier incidents of piracy see J. Abhyankar, Piracy and maritime violence: a global update, in: Proceedings of the International Symposium held at the World Maritime University, see supra note 1, 9-25.

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seized solely for ransom payments. This makes detection and arrest of the persons involved more difficult. For the first step that the pirates take is to take the ship to a “safe haven” within Somalia and then put out their ransom demands. And they are emboldened in their actions because they know that the owner of the ship and the flag State are fully aware that any attempt to take back the ship would be extremely dangerous for the ship and for the persons and cargoes on board. The new form of piracy also raises interesting and complex legal problems. First there is the issue of definition of the acts involved. Although it is clear that the main motive of the pirates is to obtain money in the form of ransom paid for the ships and their contents, many of them claim that they are acting not for their own profit but for political reasons i.e. to protect the maritime resources of their country. Whilst such a claim may have been genuine for some of the actors in the early stages, it is now largely seen as a wholly implausible pretext to justify what are clearly unlawful activities. Nevertheless, any such plea by an arrested person can create legal difficulties when that person is brought to trial, and there is considerable evidence that this possibility is seen as a constraint by some governments.9 Allied to the issue of the characterization of the offence is the question of the right of States to take measures of prevention and enforcement and the jurisdiction of their courts to deal with persons accused of such offences. By definition, “piracy” in respect of which all States are entitled to exercise “universal jurisdiction” applies only to acts that take place on the high seas or outside the jurisdiction of any particular State. When, as was the case initially, the acts of piracy took place in the territorial sea of Somalia, other States had no jurisdiction under traditional international law to take enforcement (or even preventive) measures against the perpetrators, except with the agreement or at the request of Somalia. Further, the courts of such states would not have jurisdiction to deal with persons accused of any such acts. Thus, in the absence of a government able and willing to exercise the sovereign powers that belong exclusively to the coastal State, there was a real and serious problem. Security Council resolution 1816 was intended to resolve this problem. However, the resolution provided only a partial solution. For 9

“There have also been suggestions that Somali hijackers could escape the UNCLOS definition of “pirates” by claiming that they are motivated by “political” rather than “private” gain, although it appears that the funds are being used for private enrichment in Somali communities”. A. Hirsch, The Guardian, 20 November 2008.

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while it gives authorization to any State to enter the territorial waters of Somalia and to use “all necessary means to repress acts of piracy and armed robbery”, such entry must be with the consent of the transitional government of Somalia.10 Moreover, foreign states acting in Somali territorial waters are empowered to take only such measures as are consistent with measures permitted on the high seas with respect to piracy under relevant international law. Further, it is not always easy to identify the relevant authorities from whom consent is to be sought and, in many cases, the consent of the transitional government may not be readily forthcoming, even when contact has been established with the relevant authorities. There is also the major problem of how to obtain and present evidence, when persons have been arrested for acts of piracy and are being prosecuted. In almost all cases, the most important witnesses to the offence would be members of the crew of the ship that was attacked or the ship that intervened to prevent the attack; and it is often either difficult or inconvenient for these persons to attend the hearing to give evidence when the trial takes place. In the absence of evidence from such persons, a court may find it difficult to decide on the guilt of the persons actually before it. Then there is the very difficult problem posed to many governments by the issue of the human rights claims by persons arrested and suspected of having committed acts of piracy or threats to the safety of maritime transport. Such human rights claims may be made under national constitutions or international conventions and instruments applicable to the States involved. It is well-known that the “rules of engagement” of many major maritime countries instruct or require their personnel on warships and other ships to release persons captured and suspected of being engaged in activities that clearly qualify as acts of piracy. In many cases the naval personnel are instructed not to bring the persons arrested to their home countries for trial there. These instructions may sometimes be given because of logistic problems involved in the transport of the arrested persons or because the necessary evidence from the members of the crew of the arresting ship may not be available at the trial. However, a major reason for the reluctance of States to bring arrested persons to their countries for trial in their courts is the fear that 10

On the difficulties and ambiguities arising from and under the Security Council resolution see T. Treves, Piracy, Law of the Sea and the Use of Force: Development of the Coast of Somalia, 20 European Journal of International Law 399-414 (2009).

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the accused persons might claim political asylum if they are acquitted at the trial or after having served their sentences, if they are convicted. To avoid having to take the delicate and unpleasant decision to grant or deny asylum to such persons, States find it advisable and convenient to instruct their ships and personnel to release any persons that they may arrest, after they have prevented them from committing offences and, where necessary, after disarming them.11 And, of course, pirates who are released (and disarmed) will not find it difficult to acquire new arms and boats with which to go back to the business of harassing ships and their crews. In addition to these legal problems, there are many other factors which serve to complicate further the present situation. First the pirates are now well aware that the owners of ships and cargoes and their insurers are often ready to pay the ransoms demanded by the pirates, rather than lose their ships and cargo or cause undue inconvenience and hardship to the members of the crews, including the threat of mistreatment and even execution by desperate pirates. The shipowners are also unwilling to permit or encourage any governmental attempts to reclaim the ship and rescue the crews. Because they know of the ruthless nature of the pirates they refuse to sanction any steps by governments that could pose the risk of damage to the ship and its cargoes or danger to the lives of the persons on board. Whilst their attitude may be understandable from a business and humanitarian point of view, their willingness to make ransom payments clearly provides the incentive to the pirates to continue with their activities. Secondly, the prevailing approach of governments and relevant international bodies does not encourage ships to take effective measures of self-defence that might prevent or reduce the incidence of pirate attacks. For example, the general position of the IMO strongly discourages the carrying and use of firearms on board ships for the protection of the ship and the crew. The rationale given for this position is summarized by the Maritime Safety Committee of IMO as follows: “Seafarers […] are civilians and the use of firearms requires special training and aptitudes and the risk of accidents with firearms carried on board ships is great. Carriage of firearms on board ship may encourage attackers to carry firearms or even more dangerous weapons, thereby escalating an already dangerous situation. Any firearm on board may itself become an attractive target for an attacker. Car11

On the “human rights” dimension see T. Treves, id., at 409-410.

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riage of firearms may pose an even greater danger if the ship is carrying flammable cargo or similar type of dangerous goods.”12 However, the MSC does not rule out completely the idea of armed security officers on board ships. It states that: “the carriage of armed security personnel, or the use of military law enforcement officers (duly authorized by the Government of the flag State to carry firearms for the security of the ship) should be subject to flag State legislation and policies and is a matter for the flag State to authorize, in consultation with ship owners, companies and ship operators”.13 Finally, there is the obvious lack of capacity of naval forces to prevent acts of piracy in such a large area. Rather ironically, the result of the relative success of the international task force in making matters difficult for the pirates within the territorial sea of Somalia has forced the pirates to transfer their activities to areas well outside Somali waters. This has increased the area to be covered and monitored and has thus made the task of the already inadequate naval forces much more difficult, if not altogether impossible. Faced with such complex questions and difficulties, the question to be answered is: what can realistically be done by States, individually and collectively, to address the dangerous escalation in acts of piracy and other unlawful and violent acts against international shipping? Action appears to be required in at least two main areas. The first relates to the possibility of changes in the existing legal framework. This involves an examination of the current legal principles and rules on the subject with a view to identifying any weaknesses and loopholes and, where possible, adopting appropriate remedial measures. The second area of possible action relates to the steps that can or should be taken, even under the current legal framework, to combat or reduce acts of piracy and related threats against the safety of maritime transport, and also to deal with persons who engage in such acts. With regard to the possible reform of the international legal regime, a measure of realism and consequential restraint is called for. For one thing, it must be appreciated and accepted that a formal revision or amendment of the relevant provisions of the Convention on the Law of

12 13

IMO Doc. MSC 1/Circ.1334. Id., para. 63.

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the Sea is not a realistic possibility in the foreseeable future.14 But that does not mean that nothing can or should be done. For it is possible for the international community, acting through the United Nations and possibly IMO, to develop recommendations to States on measures that may be taken to prevent unlawful acts and to sanction persons who commit such offences. For example, the Security Council or the General Assembly might be persuaded to consider the adoption of a suitable resolution recommending to States practical measures that they may take, individually or collectively, to eliminate or reduce piracy and related offences. Along the same lines, the United Nations, or IMO if considered appropriate, might undertake to elaborate uniform laws and procedures on the subject for consideration and adoption by States. If and when such recommendations are accepted and implemented by a reasonable number of States, the rules and procedures in them would in time come to be accepted as “generally agreed rules and procedures” which States could adopt and apply, not because they are under a treaty obligation to implement but because the rules concerned reflect the sense of the international community. Using such an approach it might be possible for the international community to develop uniform laws and procedures which States would find it advisable to follow, without necessarily having to go through the tortuous procedures of formally amending the Convention on the Law of the Sea. For a start the Security Council might consider making permanent the current arrangement in resolution 1816 under which foreign States and foreign naval forces are authorized to enter the territorial waters of Somalia to take preventive and enforcement measures there against persons who commit or are suspected of preparing to commit acts of piracy and other unlawful acts against shipping. At the same time, consideration might be given to extending Security Council resolution 1816 to the territorial seas of other States where, as in Somalia currently, the authorities may not be in a position to exercise fully the sovereign responsibilities that are expected of them in areas within their jurisdiction. In the process the Security Council could take the opportunity to clarify the measures that foreign States and naval forces are permitted to take against persons apprehended for committing, or preparing to commit, acts of piracy or other unlawful acts against shipping within the territo14

Having regard to the very elaborate procedure for proposing and adopting amendments to the Convention, and for bringing adopted amendments into force (Arts. 312 to 316), the prospects of adopting and bringing any amendments into force for all or most of the States Parties are not at all bright.

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rial sea of Somalia (and any other States to which the resolution might be extended). Another issue that could be addressed in this regard is how States can or should treat unlawful acts which clearly constitute “armed robbery against ships” but which do not meet all the requirements of “piracy” as defined in the 1982 Convention on the Law of the Sea. In this regard it is interesting to note that the 1988 SUA Convention and its amending Protocol of 2005 have broadened the jurisdiction and powers of States in respect of “armed robbery against ships” to the point where the sanctions applicable to persons who commit such offences are not much different from those that may be applied to persons who commit acts of “piracy”, under the Law of the Sea Convention. Thus for example, the principle of “universal jurisdiction” and the duty to “prosecute or extradite” would apply equally to the persons who are accused of the crime of “armed robbery” under the SUA Convention.15 However, at present the power to prosecute and the duty to extradite apply only where the States concerned are parties to the SUA instruments. Hence it is for consideration whether it would be advisable and possible to make the procedures in the SUA convention and protocol also available to States which have not yet accepted the Convention and Protocol and, if so, what would be the appropriate and effective way to achieve such an objective? This is an issue of legal as well as practical importance. For, as noted above, there are situations where acts which clearly qualify as “armed robbery” may not reach the legal threshold of “piracy”, as defined under international law and the laws of a majority of States. In such a situation and in the absence of a clear and authoritative statement on the subject, it is likely that some States and their naval forces engaged in the protection of international shipping may deem it prudent to refrain from action where there are doubts about the proper characterization of the offence that has been committed or is being committed. But for a ship or crew that is being attacked, and for the owners of the ship or cargoes that have been illegally seized, the fine legal distinctions between what is an act of piracy or merely an offence of “armed robbery” may not be particularly interesting or of much practical significance.16 15

“Although (the SUA) convention was primarily designed for terrorism, it can be applied to most incidents involving piracy and armed robbery against ships”, Abhyankar (note 8), at 5. 16

“While the legal position of the purist may be correct, such a distinction is irrelevant in the eyes of the victim”, Abhyankar (note 8), at 9. “Because the

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As far as concerns the practical measures that may or can be taken by individual States, the merchant shipping industry and the international community as a whole, there has been no shortage of ideas, suggestions and prescriptions. The proposed measures range from the very simplistic to the most utopian. Among these are the suggestion that the pirates should be “blown out of the water” and the proposition that “the problem is not going to be solved at sea but by the authorities of Somalia”. Trawling through the internet on just one occasion, one comes across a wide range of suggested solutions to the problem of piracy. Some of these solutions involve great leaps of the imagination, and each and every one of them raises difficult and complex problems in practical application.17 One suggestion that has been made is to place armed guards on ships, similar to the air marshal programme that was (and is still) instituted on airplanes after the incidents of hijacking of airplanes. The idea is that the programme could be administered by an international agency such as the United Nations and would consist of trained military personnel from several countries. The guards would board a ship before it enters the region and remain on board until the ship has exited the region. They would be given instructions to repel pirates trying to board the ship. Shipowners would be required to pay fees for the services of the guards. Although it is admitted that this might be expensive, it is also claimed that it would probably be less expensive to the owners than having to pay several million dollars to ransom their ships and crews when they are seized by the pirates. And it is also suggested that it might be less expensive and more efficient for the countries currently maintaining naval ships in the area who, apparently, are currently unable to arrive within a reasonable time to assist a ship being attacked by pirates. A variant of the same suggestion would allow shipping companies to hire armed security guards who would be stationed on board their effect is the same on their ship and seafarers no matter where a violent crime takes place and no matter whether the act is called piracy, armed robbery, or assault ...”, the industry (and also IMO) make reference not just to piracy but also to “armed robbery”, “in other words, anything that looks like piracy, smells like piracy and hurts like piracy, but is NOT piracy under the strict interpretation of the Law of the Sea”, Meija (note 1), at 2. 17

See posting to Question of the Week: How Should the International Community Respond to Piracy at Sea?, available at (10 April 2009, 02:44 PM).

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ships. It is suggested that a five or six man professional security team, hired from a private contractor company, would be more than sufficient and would be available at a cost to all countries and shipowners for much less than the cost of deploying naval ships over a wide area. Arrangements could be made for the locking of weapons while the ships are in port. Another suggestion is for ships transiting the affected area to be escorted in convoys. One blogger writes: “I suggest trying convoys of ships escorted by the few naval ships that are available. It worked against sub-marine attacks during the second world war. There would be no need for long-distance circumvention of the area, although some ships may have to wait a limited time until a convoy and its military ship escorts could be assembled”. The same idea is put forward differently by another contributor as follows: “An old and simple solution to the current piracy tactics would be the formation of scheduled convoys through the area. These would be easy to escort effectively through the region without trying to police the thousands of miles of empty oceans.” Another writer elaborated the idea further as follows: Under the aegis of the United Nations, an international task force would be formed. Participants would be from any countries which want to participate. The task force would establish a convoy schedule to escort ships through the Gulf of Aden with armed escorts. Shipping companies and insurance underwriters would pay the United Nations a reasonable amount for each trip and each country participating in the task force would receive a reasonable percentage of the fees as a credit against its dues to the United Nations. As part of such a scheme, it is proposed that “a no-ship zone” could be established and enforced in the area, and any boat without documents of authorization would be seized. These suggestions, and many similar ones that have been made in response to the recent escalation in the pirate and other unlawful acts against ships, indicate that there is not paucity of options and ideas for dealing with this menace. That is not, of course, to suggest that that all or even any of the suggestions would be feasible in practical or political terms. Further, none of them can be said to be completely without difficulty legally. For example, the suggestion that armed security personnel might be placed on board ships to repel attacking pirates appears to go directly contrary to the position taken by IMO, the United Nations agency with primary responsibility for maritime safety. As noted above, the Maritime Safety Committee of IMO has frowned on the idea of arming seafarers. The Committee has explained that its position is based

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on “legal and safety reasons”. The reasons given by the MSC include the following: 1. Seafarers are civilians and the use of firearms requires special training and aptitudes and the risks of firearms carried on board ships are great; 2. Merchant ships and fishing vessels entering the territorial sea and/or ports of another State are subject to the laws of that State, including legislation on the importation of firearms; 3. The carrying of firearms may pose an even greater danger if the ship is carrying flammable cargo or similar types of dangerous goods; 4. Carriage of arms on board may encourage attackers to carry firearms or even more dangerous weapons, thereby escalating an already dangerous situation; and 5. Any firearms on board may themselves become an attractive target for an attacker.18 In this connection it is noted that whilst the MSC takes a firm position against the arming of ships’ personnel, it is more flexible on the use of “armed security personnel duly authorized by the Government of the flag State to carry firearms for the security of the ship”. The position of the Committee is that “it is a matter for the flag State”, in consultation with the interested parties. It is pertinent to observe in this regard that the reluctance to sanction the arming of vessels may not fully reflect the established traditions of merchant shipping. In fact the idea of arming merchant ships is not altogether new or recent. In the past, it was not unusual for merchant ships to carry cannon and weapons comparable to those found on naval vessels. And weapons were often used by crews to defend themselves and their ship against attacks by pirates, privateers and enemy warships, wherever possible. Indeed, as far back as 1914, the United States Department of State recognized that merchant ships could be armed without acquiring warship status. However, this was subject to certain qualifications. Among these were: that the calibre of guns carried should not exceed six inches; any guns and small arms should be few in number and the quantity of ammunition must be small, the vessel is to be manned by its usual crew, the cargo carried should not be contraband and the ship must be employed in normal trade. Nor is the practice a thing of the past. In recent times it has been reported that some 18

See notes 12 and 13 above.

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merchant ships have employed both lethal and non-lethal weapons to repeal pirates attempting to board their ships. The weapons used have included small arms such as rifles for firing warning shots and disabling fire at a distance as well as 12 gauge shotguns and pistols.19 It would thus appear that, far from there being a general and strict prohibition against the presence of arms on board merchant ships, international law of the sea actually permits ships to exercise the right of self-defence, to the extent compatible with the dictates of prudence and good sense. In effect it appears that there is no general and blanket prohibition against the carrying or use of firearms on board merchant ships. Nevertheless, it must be admitted that there is considerable merit in the caution issued by IMO. There is no doubt that the carrying and use of arms on board ships can raise important and difficult issues not only of law and diplomacy but also of safety − for the ship and its cargo as well as for other users of the sea and the marine environment itself. Some of the questions that may be raised are whether a ship carrying weapons can be considered to be engaged in innocent passage while in the territorial sea of a foreign State and whether a ship in port can keep on board the arms carried by the guards (even under lock and key) if the local law prohibits the presence on board of such arms. And, of course, there would be questions about the rules of engagement, including in particular when and under what circumstances it would be legitimate for a ship’s personnel or other persons on board to use deadly force to repel persons who are suspected to be attempting to commit piracy or other unlawful acts against the ship. These suggestions and questions suggest that the current attitude and approaches have not succeeded in dealing with the modern problem of piracy. In particular, they seem to indicate that it is not unrealistic to suggest consideration of some new rules and procedures which would recognize in some form the right of the ship to take some measures of self-defence, as against what appears to be a blanket opposition to the use of all force by ships and their personnel. For example, it might be useful to consider the possibility of a new regime under which ships are 19

On this see Squire Sanders and Dempsey L.L.P., Maritime Alert: May 2009: Protecting Crews and Ships From Piracy by Arming Merchant Vessels for Self-Defense (2009), available at .

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permitted to take carefully controlled measures to repel attacks by pirates, always subject to agreed rules and standards that ensure that any measures taken do not undermine the paramount objective of securing the safety for ship and its cargoes, protection of the marine environment, the maintenance of the rule of law and due respect for the human rights of all persons concerned. For this purpose, the International Maritime Organization, as the global organization with the mandate to promote the facilitation, control and protection of world shipping, would be the most appropriate institution to take the lead in promoting a proactive and imaginative approach in this area. For example, it might give some thought to the possible establishment of a new regime that sets out the types of measures that ships and crews can or cannot take in their effort to prevent attacks against ships by pirates and other criminals. In this regard it appears unrealistic to assume that shipowners will long continue to let their ships serve as sitting targets for pirates and other irresponsible adventurers. Further, it appears more helpful to operate on the basis that taking measures of prevention is likely to be more effective than any arrangements or procedures whose purpose is primarily to punish persons who are caught and convicted of piracy and other unlawful acts. The possibilities of arresting perpetrators are rather limited and the capacity and readiness of States to take the necessary punitive actions cannot be relied upon to any great extent. Further it seems sensible to accept that, rather than allowing shipping companies and their underwriters (with the reluctant blessing of their flag States) to take matters into their hands and set up unilateral measures of self-defence which may not take due account of community interests, it would be much more responsible and far less dangerous for the international community to take the lead to ensure that any measures that may be taken will be subject to internationally agreed limits and restraints. For that purpose, IMO might consider the adoption, within a realistic time frame of a regulatory regime which would deal with, among others, the conditions and limits for the use of armed personnel on board ships. It may also be necessary to establish regulations and standards for the training of personnel and the registration of private or public bodies for this purpose. Such a regime would also set out arrangements to ensure that armed personnel and their arms are properly controlled while the ships are in foreign ports.

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There would also be agreed criteria and modalities for flag state regulation and port state controls as well as clearly defined conditions on the use of deadly force by persons on board ships. IMO should also consider carefully some of the practical suggestions for dealing with the problem of pirates in the waters of the Horn of Africa and the Gulf of Aden. One of the suggestions is to organize escorted convoys in areas troubled by pirate activity. Related to this is the proposal to establish a strict exclusion zone for shipping which would be patrolled and regulated with greater force. Any ship or craft found within the exclusion zone would be subject to sanctions, including sinking where necessary. All legitimate shipping would be confined to clearly defined routes and lanes which would be intensely patrolled. Tankers and ships carrying dangerous and volatile cargoes (for which the use of armed guards may not be prudent or safe) would be required to travel in special convoys to be organized at specified intervals. Apart from logistic, financial and political questions, some other difficult legal issues will need to be considered and reasonably answered before any such arrangement could be put in place and implemented successfully. For example, how and by what authority would a “no-ship zone” area be established within the territorial seas of Somalia (and other similar States) or even in high seas areas? Which body would be empowered to prescribe the limits of the areas and which State or States would have the right or responsibility to enforce the prohibition? Further, how would such a decision affect the rights of States which refuse to accept the prohibition?

C. Concluding Remarks The threat posed by piracy and other unlawful violent acts against international shipping has reached a stage where some of the traditional attitudes, principles and rules of law are no longer able to deal effectively with what is a continuing and growing menace. Indeed when account is taken of the nature and implications of the new practices and methods utilized by the new type of pirates, it is no exaggeration to say that some of the traditional principles and procedures are no longer relevant. Accordingly, the States and international organizations with responsibilities in this area should recognize and accept that, when considering future arrangements to deal with the new threat, it would not be advisable or wise to remain attached to the attitudes and principles

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that were used in a different era to deal with problems that are clearly different in scope and intensity from those with which the international community is currently confronted. In such a situation, a more proactive and imaginative approach is not just desirable but indeed essential.

The Security Council and the Security on the Seas Jochen Abr. Frowein

A. The Interception of Two German Ships with Weapons This intervention will deal with the question to what extent the shipment of arms on the seas may give rise to action if that shipment is either in violation of Security Council resolutions or is otherwise threatening international peace and security. We have very good examples for the problems arising here with the interception of two German ships in recent weeks which transported arms from Iran for Hezbollah. It is disturbing that we should deal with such issues here. On the other hand it is a good indication that action was directed at two German ships which can hardly contribute to the bias existing in some Muslim countries that it is mainly the Muslim world which is the target of Western action. Let me briefly describe the two cases. The first case concerns the ship Hansa India, flying the German flag, which transported arms from Iran with the final destination of the Hezbollah in Lebanon. The United States informed Germany on 3 October, first through a message to the German Embassy in the US at 1 a.m. and then through the US Embassy in Berlin at 9.30 and 10.30 a.m., about the intention to stop the German ship by action of the US Navy and investigate its cargo. It was indicated that there was a timeframe of a few hours to get the permission for boarding. The US Navy was already proceeding with the interception. The master of the ship agreed to the boarding and the boarding took place around 2 p.m. on the High Seas without formal permission by the German Government. An important cargo of material for weapons, apparently mainly for rockets, was found. After discussions the ship was permitted to continue the voyage to Malta where parts of the cargo were unloaded and confis-

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221, DOI 10.1007/978-3-642-15657-1_9, © Springer-Verlag Berlin Heidelberg 2011

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cated. The ship then continued to Hamburg where police and customs again investigated the ship and confiscated materials.1 The German Government did not protest against the stopping of the vessel and the investigation on the High Seas by the US Navy. This is of great importance concerning the situation under international law. It was even mentioned in Berlin that a sort of ex post-facto permission by the German Government was given. The second case, shortly afterwards around November 5, concerned the ship Francop. The ship is owned by a German company but flies the flag of Antigua and Barbuda. The ship was stopped by the Israeli Navy before reaching Cyprus. The ship was brought into the Israeli port of Ashdod. The cargo consisted of 300 tons of armaments, in particular rockets and other materials. According to press reports the Francop loaded the material in an Egyptian port. The cargo should be shipped to Syria and according to Israeli reports had also the destination of Hezbollah in Lebanon.2 Apparently neither Germany nor Antigua showed any reactions. Israel, according to press reports, relied on Art. 51 of the UN-Charter for its action on the High Seas. In both cases information was given by the German companies owning the ships that the ships were under the charter of the Iranian State Shipping Company in the case of Hansa India, and under the charter of the Cypriot shipping company UFS in the case of Francop. The two cases show dramatically what dangers exist with arms shipments on the seas.

B. Authorization by Security Council Flag state jurisdiction is the general principle connected with the freedom of the seas. But flag state jurisdiction must not be seen as a justification for disregarding binding Security Council resolutions or for action which is in violation of Art. 2 para. 4 of the United Nations Charter. It has been explained in earlier interventions to what extent international law has been influenced by the consensus of States not to tolerate violations of international law by shipment on the High Seas. The slave trade, piracy and the rules included for these issues in the United Nations Convention on the Law of the Sea are evidence for that proposition. However, today there are new dangers existing. 1 2

There were several press reports, in particular in Hamburger Abendblatt. Frankfurter Allgemeine Zeitung, 6 November 2009, 6.

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The Security Council may authorize interception where a threat to the peace exists. This could concern cargo coming from specific States, for instance to control the export ban for arms ordered by the Security Council concerning Iran or the obligation to prevent supply of arms to Hezbollah as laid down in Res. 1701 (2006). Res. 1874 (2009) together with Res. 1718 (2006) is an example for a far-reaching measure of the Council concerning North Korea. Para. 12 calls upon States to inspect vessels, with the consent of the flag State where they have information that the cargo is in violation of the arms ban laid down in Res. 1718 (2006). If the flag State does not consent to inspection the Security Council “decides” in para. 13 that the flag State shall direct the vessel to proceed to an “appropriate and convenient port for the required inspection by the local authorities”. This creates an obligation of the suspected State to tolerate the inspection. Could the Council also generally authorize interception where information exists concerning the shipment of arms in violation of resolutions or with the purpose of a violation of Art. 2 para. 4? This is certainly more difficult although the so called PSI (Proliferation Security Initiative) seems to indicate that States are becoming aware of the specific dangers existing with uncontrolled arms shipments.3

C. The PSI On May 31, 2003, in a speech given just prior to the G 8 Summit, President Bush announced the establishment of the Proliferation Security Initiative which would result in the creation of international agreements and partnerships allowing the US and its allies to search planes and ships carrying suspect cargo and seize illegal weapons or missile technologies. It has been stated that the Proliferation Security Initiative reflects the need for a more dynamic, active approach to the global proliferation problem. It envisages partnerships of States working in concert, employing their national capabilities to develop a broad range of legal, diplomatic, economic, military and other tools to interdict threatening shipments of weapons of mass destruction and missile-related equip-

3

See also SC Res. 1540 of 28 April 2004 concerning cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials.

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ment and technologies.4 According to recent information PSI has over 90 member nations, including all the important States with merchant fleets. Opposed to the PSI are China, Indonesia, Malaysia and Iran.5 The Initiative is a response to the growing challenge posed by the proliferation of weapons of mass destruction, their delivery systems, and related materials worldwide. The PSI has agreed on specific so called interdiction principles.6 By these principles a more coordinated and effective basis through which to impede and stop shipments of weapons of mass destruction, delivery systems, and related materials flowing to and from States and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law, including the United Nations Security Council should be reached. Two very important principles are laid down in the list. First of all the States agree to adopt streamlined procedures for the rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other States as part of the Initiative, to dedicate appropriate resources and efforts to interdiction operations and capabilities, and to maximize coordination among participants in interdiction efforts.7 The States agree to take action to board and search any vessel flying their flag in internal waters or territorial seas or in areas beyond the territorial seas of any other State at their own initiative or at the request request

4 Proliferation Security Initiative, 11 November 2009, available at ; see also M. Byers, Proliferation Security Initiative, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law online edition (2007). 5

Wikipedia, Proliferation Security Initiative (2009), available at . 6

Adopted on 4 September 2003 in Paris, available at . 7

Id., para. 2.

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and good cause shown by another State, that the ship is reasonably suspected of transporting such cargoes to or from States or non-state actors of proliferation concern, and to seize such cargoes that are identified. This is important but of course not sufficient to justify action against ships flying the flags of other States.8 However, it is then added that the States will seriously consider providing consent under the appropriate circumstances to the boarding and searching of their own flag vessels by other States, and to seizure of such WMD – related cargoes in such vessels that may be identified by such States.9 In that respect it is clear that the Initiative foresees boarding of foreign flag ships. The Initiative is of course no treaty under international law. Therefore, it cannot give a final legal justification for boarding. However, the non-binding agreement to seriously consider giving consent to the boarding is of great importance. It is clearly laid down in the Initiative. It may be seen as an attitude of the participating States which they must honour if the situation of a suspected proliferation arises.

D. Specific Treaties Authorizing Boarding The United States has concluded agreements with eight countries – some with important fleets as “cheap flag States”, as we call it in German, i.e. flags of convenience. The countries are as of 2009: Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia and Panama. The agreements are treaties in the sense of Art. 2 of the Vienna Convention on the Law of Treaties and concern cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems, and related materials by sea. A system is established by which a requesting party may request the authorization to the boarding of a ship of the other party if that ship is considered suspect. It is possible that the requested party denies permission to board and search. However,

8 9

Id., para. 4 lit. b. Id., para. 4 lit. c.

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ever, it would seem that already the system laid down here will make it very difficult to deny such authorization without any specific reason.10

10 Art. 4 of the Treaty with Belize, signed on 4 August 2005, entered into force on 19 October 2005 reads as follows:

1. Authority to Board Suspect Ships. Whenever the Security Force Officials of one Party (“the requesting Party”) suspect that a ship located in international waters is a suspect ship which claims nationality in the other Party (“the requested Party”), the requesting Party may request through the Competent Authority of the requested Party, in accordance with paragraph 2 of this Article, that it: a. confirm the claim of nationality of the suspect ship; and b. if such claim is confirmed: i. authorize the boarding and search of the suspect ship, cargo and the persons found on board by Security Force Officials of the requesting Party; and ii. if items of proliferation concern are found, authorize the Security Force Officials of the requesting Party to exercise control over the movement of the ship, as well as items and persons on board, pending instructions conveyed through the Competent Authority of the requested Party as to the actions the requesting Party is permitted to take concerning such items, persons and ships. 2. Contents of Requests. Each request should contain the name of the suspect ship, the basis for the suspicion, the geographic position of the ship, the IMO number if available, the homeport, the port of origin and destination, and any other identifying information. If a request is conveyed orally, the requesting Party shall confirm the request in writing by facsimile or e-mail as soon as possible within two hours. The requested Party shall acknowledge to the Competent Authority of the requesting Party in writing by facsimile or e-mail, or orally and confirmed in writing, its receipt of any written or oral request as soon as possible within two hours upon receiving it. 3. Responding to Requests. a. If the nationality is not verified, the requested State may refute the claim of the suspect ship to its nationality. b. If the nationality is verified, the requested Party may, if satisfied that this is a suspect ship: i. decide to conduct the boarding and search with its own Security Force Officials; ii. authorize the boarding and search by the Security Force Officials of the requesting Party; iii. decide to conduct the boarding and search together with the requesting Party; or

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But the system is even more elaborate. If there is no response from the competent authority of the requested party within two hours of its ac-

iv. deny permission to board and search. c. The requested Party shall answer through its Competent Authority, orally and confirmed in writing by e-mail or facsimile, requests made for the verification of nationality and authority to board within two hours of its acknowledgment of the receipt of such requests. d. In any case, the requested Party may request additional information or request additional time in which to respond. e. (1) If there is no response from the Competent Authority of the Requested Party within 2 hours of its acknowledgement of the request, the Requesting Party shall contact the Requested Party to verify the reasons for the Requested Party’s non-reply. (2) If no contact can be established with the Competent Authority of the Requested Party, the Competent Authority of the Requesting Party may nevertheless proceed to board the suspect vessel for the purpose of inspecting the vessel’s documents in order to verify the said vessel’s nationality. 3. If the Competent Authority of the Requesting Party is satisfied that the ship has the nationality of the Requested Party, the Requesting Party will be deemed to have been authorized by the Requested Party to question persons on board and to search the vessel to determine if it is so engaged in proliferation by sea. 4. Notwithstanding the foregoing paragraphs of this Article, the Security Force Officials of one Party (“the first Party”) are authorized to board suspect ships claiming nationality in the other Party that are not flying the flag of the other Party, not displaying any marks of its registration or nationality, and claiming to have no documentation on board the ship, for the purpose of locating and examining the ship’s documentation. Provided that: a. If documentation or other physical evidence of nationality is located, the foregoing paragraphs of this Article apply. b. If not documentation or other physical evidence of nationality is available, the requesting Party may assimilate the ship to a ship without nationality in accordance with international law. 5. Use of Force. The authorization to board, search and detain includes the authority to use force in accordance with Article 9 of this Agreement. 6. Shipboarding. Otherwise in Accordance with International Law. This Agreement does not limit the right of either Party to conduct boardings of ships or other activities in accordance with international law whether based, inter alia, on the right of visit, the rendering of assistance to persons, ships and property in distress or peril, or an authorization from the Flag or Coastal State, or other appropriate bases in international law. Source: Internet.

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knowledgment of the request, the requesting party shall contact the requested party to verify the reasons for the non-reply. If no contact can be established the requesting party may proceed to board the suspect vessel for the purpose of inspecting the vessel’s documents in order to verify the said vessel’s nationality. If the competent authority of the requesting party is satisfied that the ship has the nationality of the requested party the requesting party will be deemed to have been authorized by the requested party to question persons on board and to search the vessel to determine if it is engaged in proliferation by sea.11 This shows that it is almost impossible to refuse inspection under the circumstances if there is good cause to believe that proliferation takes place. Even without concluding such a treaty the more than 90 States participating in the PSI accepted to control ships flying their flag or ships owned by their companies as to their compliance with the aims of PSI. If that is not achieved it would seem that the State cannot object to investigation just relying on the flag state principle without very specific grounds.

E. Obligations Under Security Council Resolutions In Resolution 1747 the Security Council banned all arms shipments from Iran. The two German ships were apparently transporting weapons from Iran. The Hansa India left a port of Iran with the cargo of weapons, the Francop loaded arms in an Egyptian port which apparently had their origin in Iran. Both vessels were apparently transporting weapons for Hezbollah. Res. 1701 (2006) para. 15 includes the obligation for Germany to prevent its nationals and its flag vessels to make such transports. The Hansa India was flying the German flag. The Francop is owned by a German company. A hardly discussed article of the United Nations Charter should be investigated as to its possible bearing on action concerning such shipments. Art. 49 of the United Nations Charter reads: “The members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council”. If a State is unable or unwilling to control the vessels flying its flag or the ships owned by its companies as to compliance with Security Council resolu11

Art. 4 (para. 3) lit. e.

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tions the question arises whether other States having these possibilities can afford assistance in carrying out the measures. Of course, the argument will be made that this cannot amount to violating international law without the consensus of the State concerned. But one should look very carefully before coming to the conclusion that no possibility exists. The two cases mentioned earlier must be evaluated. They could indicate a new approach by States.

F. The Hansa India The information possessed by US and Israeli intelligence was clear and was confirmed by the weapons found on board the Hansa India. The US Navy was able to stop the ship. The German Government was approached but was apparently unable, in the proper timeframe, to come to a formal consent for the boarding. This is probably due to internal difficulties within the German administration which should be overcome as soon as possible. It should be emphasized in this context that the German legal and administrative system seems to be ill-prepared for the problems arising here. Several ministries are in charge of the matter. This is the Foreign Office, the Ministry for Transport, the Ministry of the Interior and the Ministry of Finance as far as customs control is concerned, and finally the Federal Criminal Office as far as criminal investigation is at issue. There is no clear provision in German law for action under those circumstances. This should be remedied as soon as possible. Before legislative action is taken the German ministries should agree that under circumstances as they appeared in the case of the Hansa India formal approval for boarding should be given unless there are good indications that the information on which the requesting State relies is not sufficient. The information on which the US Navy or the Israeli Navy act under those circumstances can generally be seen as fully accurate. Experience has shown that in recent years.12 The question is how one should interpret the German attitude in international law. The German Government did not in any way intervene by a clear indication that boarding should not take place. In international 12

See J. A. Roach, Proliferation Security Initiative (PSI): Countering Proliferation by Sea, in: M. H. Nordquist/J. N. Moore/K. Fu (eds.), Recent Developments in the Law of the Sea and China, 351-424 (2006).

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law acquiescence plays a very important role. Without any clear indication before the boarding or any protest after the boarding Germany must be seen as having acquiesced in the action. Therefore, the boarding was not in violation of international law. The question may also be asked whether Art. 51 could be a basis for collective self-defense. If the weapons were destined to a non-state actor using armed force against a United Nations member State, as it seems clear, this could well be an issue. Hezbollah is a continuous aggressor and collective self-defense could be applicable if one is willing to see a non-state actor as possible attacker.

G. The Francop Again clear information existed and was confirmed by the interception and control. Art. 51 was argued by Israel to be the basis for its action. Neither Antigua nor Germany protested. Since the Francop was a ship owned by a German company but flying the flag of Antigua the legal situation is more complicated than in the case of the Hansa India. Under Art. 94 of UNCLOS every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Compliance with Security Council resolutions banning arms export must be seen as falling under the obligation of control of the flag State under Art. 94. It is clear that Antigua will not even have the possibility to effectively control such shipment. Since the ship is owned by a German company the Security Council obligation must be complied with by the German owner. The owner must make sure that no violations of Security Council resolutions take place through the transport by that ship. Germany is under a formal obligation to make sure that its nationals do not use ships owned by them but flying a flag of convenience to violate Security Council resolutions. As to the legal basis for the Israeli action Art. 51 is applicable. Hezbollah must be seen as a continuous attacker. Self-defense can be exercised against that action and this means that the transport of arms for Hezbollah can be stopped by Israel also on the High Seas.13

13 Y. Dinstein has argued that Israel can also rely on the rules concerning contraband since a state of war exists between Israel and Lebanon.

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H. The Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation It is of interest in this context that the new Art. 8bis in the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation establishes a procedure which could be of importance here. The Protocol is limited to chemical, biological and nuclear weapons, at least in principle. However, the boarding rules contained in Art. 8bis are important. Art. 8bis section 5 c establishes the principle that a ship will not be stopped without the formal permission by the flag State. However, subsections d and e establish a legal regime by which a State may notify the Secretary-General of the United Nations in advance that a requesting State has the permission to stop a ship flying the flag of the first State if a reply from this State has not been received within four hours. Section e states that under those circumstances the permission is given to search the cargo as to violations of the treaty. This procedure is very similar to the bilateral treaties concluded by the United States mentioned earlier. It could become a general rule.

I. Conclusion The German merchant fleet is, if figures are correct, one of the biggest in the world, if you combine the ships flying the German flag and the German owned ships. Germany must be seen to be under an obligation to control its ships even if running under the charter of Iran or any other State. Germany is an active partner of the PSI. The attitude of Germany concerning the two cases is quite relevant for the development of international law. Although, unfortunately, Germany did not express its formal consent before the boarding of the Hansa India, it did not protest the action. It has acquiesced to the boarding and the confiscation of the arms. In the case of the Francop the flag State, Antigua, also acquiesced. Germany could have taken up the issue with Israel but, of course, did not since the violation of the Security Council Resolution was evident.

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