On November 16

On this day in ...

(credit)

... 1994, 12 months after the 60th country had joined it, the U.N. Nations Convention on the Law of the Sea entered into force. Today the treaty, which establishes a regime for international regulation of oceans and seas, has 164 states parties, thanks to the joinders just this past September of Ecuador and Swaziland. A notable nonparty state is, as covered in posts available here, the United States of America. Notwithstanding arguments that tensions in the South China Sea make speedy ratification a U.S. national security issue – an argument cogently made in this Jurist article by Michael Kelly, our colleague at Creighton Law – continuing opposition by some in the Senate this summer forestalled any vote on ratification. Yet just days before the election that handed President Barack Obama a 2d term, support for ratification was reaffirmed by Senator John Kerry, the chair of the Foreign Relations Committee who's reportedly on the short list (along with U.N. Ambassador Susan E. Rice) to succeed Hillary Clinton as Secretary of State.

(Prior November 16 posts are here, here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[I]f any state were to attack Iranian territory without a decision of the UN Security Council, the question would arise whether the provisions for transit passage under UNCLOS would continue to apply or whether Iran could invoke the laws of war and take action against tankers, especially if they are deemed to be assisting the "enemy."'

-- Nilufer Oral (left), Deputy Director of the Istanbul Bilgi University Marine Law & Policy Research Center in Turkey, posing a knotty hypothetical in her ASIL Insight entitled "Transit Passage Rights in the Strait of Hormuz and Iran’s Threats to Block the Passage of Oil Tankers."  (Strait map credit; photo credit) Oral responds to her own hypothetical by noting that legal requirements of necessity and proportionality would rein in would-be resorts to acts in self-defense.  Taken as a whole, the Insight channel a useful course through the shoals of U.N. treaties, International Court of Justice jurisprudence, jus ad bellum, and other relevant sources of law.

Law of sea treaty opponent softening?

U.S. Senator Jon Kyl seems to have taken a different tack with regard to the U.N. Convention on the Law of the Sea.
The Obama Administration has begun a push toward ratification amid news of tension in the South China Sea.
Five A-list Republicans – former Secretaries of State Henry Kissinger, George Shultz, James Baker III, Colin Powell, and Condoleezza Rice – published a joint op-ed in the Wall Street Journal on May 30. Title: “Time to Join the Law of the Sea Treaty.”
And so on Monday Kyl, an Arizona Republican who bears boundless antipathy to international institutions, said in an American Enterprise Institute speech:

‘Congress could enact a statute that makes the navigational parts of the treaty, which codify the historical practice of seafaring nations, the law of the land. Then the Senate need not ratify the treaty, which still contains unacceptable provisions, including issues related to the exploitation of the seabed. A statute, in effect, can separate the wheat from the chaff. And the United States will contribute to the clarification of customary international law, by contributing its practices and legal opinions on the law of the sea.’

Legislation alone is not ratification. And Kyl’s speech was couched in swipes against transnationalism and one of its proponents, State Department Legal Adviser Harold Hongju Koh.
Nevertheless, the quotes suggests that tides are turning on this longstanding U.S. ratification dispute.
(credit for image above left to UN Division for Ocean Affairs and the Law of the Sea)

The Law of the Sea Convention: A New Hope

This month marks the 30th anniversary of the adoption of the Law of the Sea Convention. July will mark 18 years since the 1994 Agreement on Implementation, which modified the Convention to resolve US objections, was opened for signature. Eight years have passed since Senator Lugar convened the first round of hearings on the Convention in the Senate Foreign Relations Committee.
Working toward US accession to the  Law of the Sea Convention (prior posts) is not a task for the impatient, but an event held yesterday (May 9th) suggests that this pace is about to change.

Renewed Public Attention to UNCLOS

Business Panel on US Interests in the LOS Convention

The outlook for US accession to the Convention improved sharply this week with a high profile event organized by the Atlantic Council and the Pew Trusts. Co-chaired by former senators John Warner and Chuck Hagel, the event gave equal billing to economic and national security interests in the LOS Convention. In the opening panel, representatives of the US Chamber of Commerce, the American Petroleum Institute, Lockheed Martin and Level 3 Communications addressed the economic opportunities and other benefits that would be opened up for American companies by US accession to the Convention.

Heather Conley
Discusses the
Arctic and LOS

The second panel addressed new security issues. Heather Conley of CSIS focused on international transportation, national sovereignty and boundary resolution issues in the Arctic. John Nagl from the Center for a New American Security addressed navigation, energy and resource security issues worldwide. John Norton Moore focused on the increase of national sovereignty over the seabed and its resources that would come with accession.

Lean Panetta Endorses
the LOS Convention

The event was particularly notable for the stature of the people who made the case for the Convention. In addition to John Warner and Chuck Hagel, former Senate Majority Leader Trent Lott, who now represents Shell Oil and Lockheed Martin’s interests in joining the Convention, sat in the front row and spoke with attendees about the tactics of senate approval. Admiral Robert Papp, the Commandant of the US Coast Guard, gave a strong and personal endorsement. After lunch, the meeting closed with keynote presentations given by the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, and by Secretary of Defense Leon Panetta.

Uncommon heritage: Elisabeth Mann Borgese

Today marks the tenth anniversary of the passing of a woman known by some as the "mother of the oceans."
She was Elisabeth Mann Borgese (right). A talented and peripatetic woman who successfully forged her own path in North American academic and intellectual circles in the middle of the twentieth century. “EMB” died on February 8, 2002, in St. Moritz, Switzerland.
The Ocean Yearbook, which Elisabeth founded, has dedicated its current issue to her and to the thirtieth anniversary of the signing of the Law of the Sea Convention. "Celebrating 30 Years of Ocean Governance under UNCLOS: Elisabeth Mann Borgese and the Ocean Governance Mission of IOI." is the title of that issue, Volume 26.
My own contribution to that forthcoming volume – an article entitled "Uncommon Heritage: Elisabeth Mann Borgese, Pacem in Maribus, the International Ocean Institute and Preparations for UNCLOS III," provides the basis for this post.
Born in Munich on April 24, 1918, in her 83 years Elisabeth claimed four different national affiliations – German, Czechoslovakian, U.S., and Canadian – and five different countries as her home – Germany, Switzerland, the United States, Italy, and Canada.
Elisabeth landed in the United States in 1938, at the age of 20, a young German woman with almost no English and no formal secondary education. Yet she ended up as a Canadian university professor.
She had studied piano performance in Zürich. She and her family had fled to that Swiss city from Hitler’s Germany in 1933 when she was fifteen. Such schooling offered little preparation either for her life in North America, which began with her parents in Princeton, New Jersey, or for the work she would initially find in her new home: first as a Research Assistant to the University of Chicago’s “Committee to Frame a World Constitution” in the 1950s, and later as the only female fellow at the Center for the Study of Democratic Institutions in Santa Barbara, California, where she moved in 1964.
In these first two positions, surrounded by male intellectuals who were shaping the U.S. academic and political landscape, Elisabeth pieced together an informal education and laid the foundation for her life’s work as an oceans activist, environmentalist, and teacher of the law of the sea.

In Seychelles, in pursuit of pirates

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

VICTORIA – Greetings from the Seychelles!
Along with Professor Michael Scharf of Case Western Reserve University School of Law and Sandra Hodgkinson, Distinguished Visiting Research Fellow at National Defense University, this week I have been engaged in meetings with the Seychelles’ Attorney General and members of the judiciary about the ongoing Somali pirate prosecutions in the Seychelles’ courts.
Mike, Sandy, and I form a delegation representing the Public International Law & Policy Group, a Washington, D.C.-based global pro bono organization. (pictured below, Sandy, left, and I outside The Pirate Arms)
PILPG recently began work in the area of Somali piracy, through the creation of its Piracy Working Group. Mike, Sandy, and I, along with a number of other distinguished academics, practitioners, and conflict resolution experts, are all members of a High-Level Expert Group, and we have traveled to the Seychelles with a two-fold mission:
► First, we have presented the Seychelles’ Attorney General, Ronny Govinden, with copies of eighteen legal memoranda, addressing various legal issues related to Somali piracy.
The memoranda have been written by law firm associates and law students who work for law firms and legal institutions which form the Expert Group’s consortium of academic partners. In fact, since its inception in May 2011, the Expert Group has identified pertinent legal issues related to Somali piracy, and has outsourced the research and writing of legal memoranda on such topics to our law firm and academic partners.
Thus, here in the Seychelles, we have officially entrusted this tiny nation’s prosecutors with the fruit of our research. It is our hope that the legal memoranda will prove useful in the short future, as several Somali pirates already have been prosecuted, and additional pirates are awaiting trial in the Seychelles’ domestic courts.
The legal topics covered by the memoranda range widely – from basic issues, such as the applicability of 1982 U.N. Convention on the Law of the Sea and customary law to piracy incidents off the coast of Somalia, to more specialized discussions on, for example, relevant international regimes related to the freezing both of piracy financiers' assets and of financial gains derived from piracy.
► Second, we reached an oral agreement with the Attorney General through which his office will establish a long-term cooperation and collaboration relationship with PILPG. Mainly, the Attorney General’s office will continue to request legal memoranda from PILPG on various piracy topics, as they arise in future prosecutions.
The Attorney General was able to identify several new topics of interest during our meeting, and he was very enthusiastic about the prospect of future collaboration, which would tremendously strengthen ongoing piracy prosecutions. The Attorney General’s office has a small staff and limited resources; thus, any research assistance by PILPG will be immensely valuable toward supporting piracy prosecution.
It is becoming obvious that the Seychelles’ government is a key player in the global fight against Somali piracy, and that Seychelles’ national courts are an appropriate venue for pirate prosecutions.
Until recently, as discussed in prior IntLawGrrls posts on piracy available here, captured Somali pirates were routinely released because of a lack of viable prosecution options. Major maritime nations which patrol the Gulf of Aden and other waters in the Indian Ocean seem uninterested in prosecuting captured Somali pirates, in their domestic courts, on a true universal jurisdiction model. Piracy prosecutions are logistically difficult, politically unpopular, financially costly, and may even ultimately result in the prosecuting country’s obligation to grant pirates political asylum upon the completion of their prison sentence. Thus, unless national interests of such maritime nations are directly threatened by a piracy incident, major maritime powers are generally not prone to setting up domestic piracy trials.
Over the last few years, Kenya has been identified as a stable regional partner, capable of conducting fair pirate prosecutions in a specialized domestic court in Mombasa. Thus, several countries concluded transfer agreements with Kenya, whereby Kenya would prosecute Somali pirates upon their transfer by the capturing state to Kenyan authorities. Alas, Kenya seems ambivalent about the prospect of accepting more Somali pirates in the future – the Kenyan authorities have indicated that they no longer wish to participate in such transfer programs. While more than a hundred Somali pirates await trial in Mombasa, Kenyan authorities suggested that no additional pirates will be transferred to Kenya in the future. While there are reports that Kenya may revert to its original position of willingness to prosecute pirates, nobody is certain as to what the Kenyan government will ultimately decide.
Hence the need to identify another stable regional partner, like the Seychelles.
The Seychelles are a group of relatively small islands in the Indian Ocean. (map credit) While not in direct proximity of Somalia, the Seychelles have nonetheless been negatively influenced by the development of piracy in this region. Pirate attacks have intensified and proliferated geographically, and Somali pirates have attacked boats and yachts sailing close to the Seychelles’ waters.
Moreover, the Seychelles derive most of their national revenue from tourism. (Pictured at right, a 100-year-old sea turtle at a Seychelles sanctuary; they used to be everywhere but today most live in captivity (sadly).) Any criminal activity taking place close to the Seychelles, like Somali pirate attacks, has the potential to deter tourists attracted to the Seychelles’ beaches and pristine turquoise waters and to thus undermine the development of tourism in this otherwise isolated region of the world. Thus, it will be in the interests of the Seychelles’ government to drastically reduce the number of pirate attacks in these waters.
Prosecutions in the Seychelles’ courts, pursuant to transfer agreements like those that have been in place in Kenya, constitute an important step in ensuring that pirate attacks do not go unpunished.
The Seychelles’ Attorney General confirmed to us the existence of transfer agreements between the Seychelles and the European Union, as well as the United Kingdom. Pursuant to these transfer agreements, the Seychelles has accepted pirates detained by the EU or UK forces on the high seas. Eleven successful piracy trials have already taken place, and 51 pirates have been convicted in the Seychelles’ courts. Several other pirates are currently detained and awaiting trial.
Finally, we ended our visit with a meeting with two members of the Seychelles’ judiciary. One of these two judges, Seychelles Supreme Court Justice Duncan Gaswaga, head of that Court's Criminal Division, has presided over several piracy trials, and was kind enough to show us two courtrooms which are currently being used for piracy prosecutions. (at left, front of Supreme Court, among the oldest buildings on Mahé, the Seychelles' largest island, on which is located the capital, Victoria; and Mike Scharf and I at the Court)
We explored the possibility of future assistance by PILPG to the Seychelles’ judiciary, in the form of amicus briefs or other research memoranda useful to support judges in their efforts to preside over piracy trials.
The trip was successful, and it will be my pleasure to report more on the topic of Somali piracy upon my return to the United States.

National anti-piracy laws needed

(Many thanks to IntLawGrrls for the generous invitation to contribute this guest post)

The number of maritime piracy attacks is spiraling ever-upward, pirates are increasingly using violence to carry out their attacks, and pirates are demanding more and more money for the safe release of their captives. Between 2006 and 2010, the number of yearly pirate attacks reported to the International Maritime Bureau, a 20-year-old, London-based division of the International Chamber of Commerce, almost doubled. (chart credit)
Not only did pirates attack ships, but in 2010, pirates took hostage an unprecedented 1181 seafarers—eight of whom pirates murdered. Moreover, maritime pirates are getting paid huge sums for their violent activities: average ransoms are estimated at between US$2 million and US$3 million.
This is a discouraging trend, especially because over the last several years, the international community has spent billions of dollars to support naval fleets that patrol pirate-infested waters with the goal of repressing piracy. While these naval fleets have thwarted some attacks and captured some pirates, the evidence about the increasing frequency of maritime piracy attacks suggests that the full deterrent effect of these naval resources is not being realized.
Instead, a culture of impunity reigns.
Consider this statistic from the report by Jack Lang, Special Advisor to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, which was delivered in January to the U.N. Security Council: About 90% of captured pirates are being released rather than prosecuted.
One reason cited for this culture of impunity, which I examine in my article “Maritime Piracy And The Impunity Gap: Insufficient Nationals Laws Or A Lack Of Political Will?”, forthcoming in Tulane Law Review, is the purported absence of domestic legislation to facilitate piracy prosecutions.
But, why would states lack domestic anti-piracy legislation?
After all, universal jurisdiction over piracy has existed for more than 100 years, meaning that states can prosecute pirates who attack on the high seas even where the attack does not involve the state’s citizens as either perpetrators or victims. In addition, most states are parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which codifies piracy’s status as a universal jurisdiction crime and which encourages states to cooperate in the repression of piracy to the fullest extent possible.
Yet, the anecdotal evidence suggests that states have not enacted piracy laws consistent with this international legal framework. In fact, since the passage of Security Council Resolution 1918 (April 27, 2010), and through to Resolution 2015 (October 24, 2011), the Council and other international actors have called on states to rectify the present culture of impunity by criminalizing piracy under their national laws and by considering favorably the prosecution of piracy suspects.
In an effort to determine what might be lacking in state anti-piracy laws and to contribute to the discussion of how to end the culture of impunity that surrounds piracy, in the forthcoming article, my article analyzes the nature of domestic anti-piracy laws in states for which I was able to obtain information in English. The chart below shows the states included in the sample and organizes them by type of piracy laws (or lack thereof):


Overall, my analysis supports a conclusion consistent with the Security Council’s observation that states generally lack domestic piracy laws consistent with customary international law and UNCLOS.
► For example, even where they have enacted a specific anti-piracy law—and are not relying only on general categories of crime such as robbery, assault, or murder—many states still tend to require some nexus between the state and the crime in order to exercise jurisdiction.
In fact, as the chart above shows, at most fifteen of the states surveyed specifically define piracy using UNCLOS or some other formulation, and also provide for the exercise of universal jurisdiction.
► In addition, the analysis shows that even some of the universal jurisdiction anti-piracy laws may not be sufficient to successfully prosecute pirates.
Rather than tracking UNCLOS’s language, some laws provide broadly for universal jurisdiction “as defined by the law of nations.” Because that definition does not outline the elements of a piracy offense, however, some courts may conclude that certain acts—such as attempted, but not completed, attacks on ships—are not covered and cannot be punished. Indeed, as IntLawGrrls then posted, this was the conclusion of the U.S. District Court in United States v. Said, 757 F. Supp. 2d 554, 566 (E.D. Va. 2010).
The state laws that rely on the direct incorporation of treaty provisions have similar deficiencies. The very absence of domestic legislation defining the precise contours of the crime and its penalties renders it possible for alleged pirates to argue that they should not be punished, because they have not been provided with advance notice of exactly what conduct is proscribed.
It is true that piracy cases may result in claims for asylum, can be costly, require the state to expend prosecutorial and judicial resources that could otherwise be deployed to handle domestic crimes, and can involve significant evidentiary difficulties. But, I argue that states should not be able to so easily shirk their duties under UNCLOS to cooperate to the fullest extent to repress piracy.
Piracy is a universal problem that harms the international community as a whole. (credit for UN photo) If the world community wants to halt the increasing threat posed by maritime piracy, then all states must embrace their duty to share in the burden of prosecuting pirates, which means that all states must first pass the necessary domestic laws authorizing the exercise of universal jurisdiction over piracy offenses.

Prospective Advice & Consent

(Many thanks to Diane Marie Amann and IntLawGrrls for inviting me to contribute this guest post!)

Under the current U.S. treaty-making process, treaties are first negotiated and signed by the executive branch, then sent to the Senate for advice and consent, and then ratified by the executive branch.
For important multilateral treaties, the Senate stage of this process can move slowly and sometimes endlessly. The oldest treaty in the Senate's queue of pending treaties arrived in 1949, and the backlog includes treaties supported by administrations from both parties, such as the Law of the Sea Treaty (prior IntLawGrrls posts). (credit for above left photo of Capitol's wing)
During an interview last year the previous the Legal Adviser of the U.S. Department of State, John Bellinger, described this backlog as weakening the credibility of current U.S. negotiators because

'our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate.'

Our negotiators, he suggested, were in a situation akin to “the boy who cried wolf.”
In an article forthcoming next year in the Yale Journal of International Law, I propose a new approach to treaty-making that would alleviate these problems – an approach that I call “prospective advice and consent.”
Briefly, I argue that under certain conditions, the Senate can and should give its advice and consent to treaties in advance of their final negotiation. Specifically, the Senate could give its advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties ultimately conform to these conditions, the President could then ratify without further action by the Senate. This approach would both speed up the treaty-making process and strengthen U.S. credibility at the bargaining table, thus potentially allowing the United States to obtain more favorable treaty terms.
The article takes up two main questions: First, would prospective advice and consent be constitutional? Second, would it be workable and desirable? My answers are yes and yes, with some qualifications.


Constitutionality
The constitutional question centers on the Treaty Clause of Article II of the Constitution. I show that the text, historical context, and evolving practice of that clause leave the President and the Senate with the flexibility to determine the timing and specificity of the Senate’s advice and consent. The Treaty Clause simply gives the President the

'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.'

Once we accept – as we currently do – that “advice and consent” can come at the same time, nothing in the text dictates when this must occur. Indeed, on several occasions President Washington received the Senate’s advice and consent to negotiate treaty amendments and then, following successful negotiations, ratified these amendments without returning again to the Senate.
I also see no constitutional problem in the Senate giving its advice and consent to negotiating objectives rather than to the specific text of a treaty, provided that the negotiating objectives satisfy the intelligible-principle test. As I show, the Senate did this several times in relation to a series of treaties extending the U.S.-Mexico Claims Commissions in the 1920s and 1930s. In any event, this is how Congress authorizes the ex ante congressional-executive agreements that are the bread-and-butter of U.S. international agreements.

Practicality
On the practical side, I argue that prospective advice and consent would work well for certain types of treaties. In this post, I’ll discuss one type: major multilateral treaties where U.S. negotiating power would otherwise be reduced because other negotiators doubt the President’s ability to deliver the Senate. (credit for below left photo of White House)
Why might the Senate be willing to give prospective advice and consent to such treaties?
For one thing, to the extent that the United States can negotiate better terms if it can credibly signal the Senate’s agreement, then the prospect of better terms might in turn make the Senate more willing to act. The Senate can set tough terms in a resolution of prospective advice and consent.
For another, this approach would give the Senate a long-desired formal role at the negotiations stage, thus potentially making the inter-branch relationship more collaborative and less adversarial.
In terms of timing, I argue prospective advice and consent would best come late in the negotiating process, when the overall contours of the treaty are in shape but important points of contestation remain.
A few caveats:
► First, I don’t think prospective advice and consent would always work. Sometimes the Senate would not give it or the President would be unable to succeed in negotiating a treaty along the Senate’s terms. Instead, I make the modest claim that prospective advice and consent might sometimes work where post-negotiation advice and consent would not be obtainable (or would take many years to achieve).
► Second, I recognize that the Senate may be leery of ceding final review of a treaty. In response, I argue that the Senate could condition its resolution of advice and consent in a way that would preserve some form of post-negotiation review.
► Third, I don’t think prospective advice and consent is desirable for all types of treaties. There is a broad scholarly debate over how U.S. treaty-making can and should be legitimately accomplished (e.g., through the Treaty Clause, congressional-executive agreements, or executive agreements). I don’t think there’s a single answer to this question, and my article does not offer prospective advice and consent as a sole solution. Rather, I argue that it is a legitimate option that would work well in some circumstances.
Comments on this work-in-progress would be most welcome!

Chamber advises caution in seabed mining

(Thank you, IntLawGrrls, for the opportunity to contribute this guest post)

A new Advisory Opinion on Responsibility and Liability for International Seabed Mining from the Seabed Disputes Chamber of the Hamburg-based International Tribunal for the Law of the Sea advises countries interested in sponsoring commercial mining in international waters that they can limit their liability for accidents, but that they will have to consider the precautionary approach, global commons interests, and the evolution of international law in light of new scientific information.
Small island states interested in sponsorship requested this advisory opinion before they undertook to sponsor mining companies based in Canada and Australia.
This February decision was the first to be issued by the Seabed Disputes Chamber, which was established by the UN Convention on the Law of the Sea. The opinion clarifies a number of issues specific to a state’s obligations and liability for harm that might result when it sponsors commercial deep seabed mining in a zone of international waters designated “the Area.” It also offers much of more general interest, particularly in its application of the ILC Draft Articles on state responsibility.

The Chamber’s thoughtful decision should encourage states to have confidence in the Tribunal and its Chamber.

The increasing value of metals that are found on the deep seabed has given rise to greater commercial interest in mining in international waters, more than 200 miles offshore and at as much as 6,000 meters (18,000 feet) below the sea surface. (credit for above right photo of seabed diamond-mining vessel) Access to these resources is implemented through a regime managed by the Jamaica-based International Seabed Authority, which, the Chamber observed, “acts on behalf of mankind.” Under this system, a government can sponsor a company to explore and mine some international waters. The United States, not having ratified the law of the sea convention, is not part of the regime.
If a state adopts appropriate measures, Article 139 of the convention exempts that state from liability for catastrophic harm to the ocean or seabed caused by a company that it sponsors. However, the Chamber advised that to obtain this protection the sponsoring state must satisfy its “due diligence” obligation to make best possible efforts to secure compliance by the sponsored contractors. What is required of due diligence varies according to the state of scientific and technological knowledge and the risks of the activity. It includes the adoption of laws, regulations, and administrative measures in the state’s domestic legal system that are both:
► As stringent as those established by the International Seabed Authority; and
► As effective as international standards.
States must apply a precautionary approach as an integral part of their due diligence obligations

in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.

Disregarding such risks would constitute a failure of due diligence. The Chamber observed that a growing number of treaties have “initiated a trend” to make the precautionary approach part of customary international law. (This advisory opinion adds one more example of opinio juris to that development.)

In addition, the mining regulations governing prospecting and exploration for polymetallic nodules and sulphides explicitly require states and the International Seabed Authority to apply Rio Declaration Principle 15. That formulation requires that

where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In a variation on the principle of “common but differentiated responsibilities,” Nauru, a small Pacific island state, had proposed that UNCLOS provisions intended to encourage developing state participation require it to observe a lesser standard of obligation than required of developed countries. Nauru argued that it could not risk the potential cost of a disaster, and so would be unable to gain the benefits from deep seabed mining promised to developing states in the convention. In this Advisory Opinion, the Seabed Disputes Chamber stated that sponsoring state obligations apply to both developed and developing countries, although “rules setting out” direct obligations could differentiate. The Chamber also noted that Rio Principle 15 may suggest a different standard, as that principle includes the proviso that the precautionary approach is to be applied according to the capabilities of the state.
While obligations and liability rules are established by the convention and related instruments, the consequences are governed by customary international law. Citing the ILC’s codification of customary law, its Articles on State Responsibility, Article 48, the Chamber indicated that obligations to preserve the environment of the high seas and in the Area may be erga omnes; that is, owed to the international community as a whole or “to a group of States [if the obligation] is established for the protection of a collective interest of the group.” The Seabed Authority might be able to claim compensation on behalf of the international community, along with parties to UNCLOS, “entities engaged in deep seabed mining, other users of the sea, and coastal States.” Though the Chamber does not mention it, other forms of enforcement may also be open to the international community.
Some failures of state oversight that contributed to the Deepwater Horizon disaster in the Gulf of Mexico (prior IntLawGrrls posts available here) are addressed by the Chamber. They include:
► The obligation of Environmental Impact Assessment;
► Raising of the performance standard from “best technology” to “best environmental practices”; and, in the aftermath,
► Ensuring access to compensation.
Referring to the 2010 judgment of the International Court of Justice in Pulp Mills (discussed here), the Chamber stated that Environmental Impact Assessment is both

a direct obligation under the Convention and a general obligation under under customary international law.

The rejection of the argument that states that sponsor mining operations bear residual liability for any damages not compensated by the mining company leaves an important gap in liability.
Other international liability regimes are structured in a similar way, which made sense in an “empty world”. In today’s “full world”, if the cost of environmental damage is not paid by those who expected to profit from the harmful activities, it will be paid by the international community.
The Chamber suggested that a possible solution could be the establishment of a trust fund.
Such funds have at times been successful, as in the case of the International Oil Pollution Compensation Funds. But the slow progress on climate change funds is an example of the problems.
The Chamber’s invocation of Article 304 of the law of the sea convention, which refers to the development of further rules governing responsibility and liability for damage, and its linkage of rising environmental standards to increased scientific knowledge leave the door open to a more protective stance in future contentious cases and provides important guidance to the International Seabed Authority.
The Chamber provided a degree of access to nonstate participants.
Under the rules applicable to the Chamber’s advisory jurisdiction, “intergovernmental organizations which are likely to be able to furnish information on the question” may be invited to participate.
On that basis, the Chamber invited all observers to the International Seabed Authority Assembly to submit written and oral statements. The participation of the International Union for Conservation of Nature, on behalf of which I appeared in these proceedings, along with members of the UN family: UNESCO’s Intergovernmental Oceanographic Commission and the UN Environmental Programme, occurred on this basis.
Two nongovernmental organizations, Greenpeace International and the World Wildlife Fund, jointly submitted a statement and a request to participate in the proceedings as amici curiae. The Chamber considered the request and decided to post the statement on its website, but as the Rules of the Tribunal do not provide for amicus participation, did not include their statement in the case file. The NGOs were not allowed to participate in the oral proceedings.
The Advisory Opinion, written statements, verbatim record of oral statements, and webcast of oral statements are all available here.

2 tacks to combat piracy

Year's end finds 2 countries setting different courses to combat the recent spate of pirate attacks in the Gulf of Aden off the coast of Somalia.
In the United States, just before Thanksgiving, a federal jury in Virginia returned convictions for piracy and other offenses against 4 Somali defendants. (credit for detail from 2010 courtroom sketch by Alba Bragoli/AP) The verdict came one month after the judge in the case, United States v. Hasan, sustained a charge brought under 18 U.S.C. § 1651. The statute provides, in language dating to 1819:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Yet in the same courthouse a few months earlier, a different federal judge, in the case of United States v. Said, had dismissed a piracy charge brought against 6 other Somali men. Tripping the latter judge up was Congress' reference in § 1651 to "the law of nations."

The opposite rulings reflect uncertainties about whether an old legal framework presents the proper way to proceed against 21st C. pirates. It's a puzzle addressed in this discussion by our OJ colleagues, and in many IntLawGrrls posts available here.

In the United States, the discrepancy next awaits consideration by the Virginia-based Court of Appeals for the 4th Circuit.

France, meanwhile, has taken another tack.

France also has been involved in policing piracy in the Gulf of Aden. (credit for March 2010 of French naval vessel, with "Somali pirate skiffs" in foreground) France also has found that its old laws fell short -- and so it's opted for a legislative fix.

Shortly before Christmas, the Sénat voted unanimously in favor of the Loi de lutte contre la piraterie et d'exercice des pouvoirs de police de l'Etat en mer -- a bill to ease the pursuit and punishment of pirates that the legislature's lower house already had approved.

Key components:

► An 1825 French antipiracy law having been abrogated in 2007, the newly adopted law reintroduces into the penal code the crime of piracy -- a crime may be pursued via universal jurisdiction. The new law applies to acts of piracy "within the meaning of" the 1982 U.N. Convention on the Law of the Sea, "committed ... on the high seas," "in maritime spaces outside any state's jurisdiction," and "when international law permits, in a state's territorial waters." That Convention is an artifact of the law of nations to which France has been a state party since 1996, but to which, as posted, the United States does not belong.

► The new statute further establishes a legal regime for detaining suspects onboard French naval vessels while they are being transported to judicial authorities. These Mesures prises à l'encontre des personnes à bord des navires respond to a March 2010 judgment, Affaire Medvedyev et Autres c. France, in which the European Court of Human Rights held that France had violated the guarantee of liberty and security of person in Article 5 of Europe's human rights convention by its high-seas detention in 2002 of members of a ship's crew who were suspected of trafficking in drugs.

(Deep thanks for invaluable assistance with this post to University of California-Davis LL.M. student Johann Morri, on leave this year from his post as a French administrative law judge.)

Guest Blogger: Caitlyn Antrim

It's IntLawGrrls' great pleasure to welcome Caitlyn Antrim (left) as today's guest blogger.
Caitlyn's the executive director of the Rule of Law Committee for the Oceans and publisher of the "Ocean Law Daily," a newsletter focused on the U.N. Convention on the Law of the Sea, its relation to U.S. national interests, and prospects for approval by the U.S. Senate. She discusses those prospects in her guest post below.
Caitlyn began studying law of the sea under Harvard Law School Professors Louis Sohn and Richard Baxter at the same time she was earning the professional degree of Environmental Engineer at the Massachusetts Institute of Technology. She credits this dual track for preparing her for translating and mediating between lawyers and engineers, developed and developing countries, and other cultural clashes in international ocean and environmental policy debates.
After graduation she joined the government, representing the Commerce Department and NOAA, the National Oceanic and Atmospheric Administration, on the U.S. delegation to the Law of the Sea Conference. Since then, she has served on delegations and secretariats at the U.N. Conference on Environment and Development and the Convention on Drought and Desertification. She's also worked for the Congressional Office of Technology Assessment, the American Academy of Diplomacy, and the National Academy of Sciences, all the while keeping involved in the progress of the law of the sea convention.
Caitlyn has published articles on law of the sea, strategic minerals, negotiation theory and practice and, most recently, the emerging regime for the Arctic. A loyal blogreader, Caitlyn nominated an IntLawGrrls transnational foremother years ago: Dr. Grace Murray Hopper (right) (photo credit), a Navy officer who developed the computer language COBOL.
Heartfelt welcome!

UNCLOS needs bipartisan push

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.

International law & new U.S. ocean policy

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

International lawyers measure change over the course of human events, believing we might even shape both the change and the events. Geologists think differently.
In geologic time 65 years barely register. In international law they take us from the September 28, 1945, Proclamation on the Continental Shelf, issued by President Harry S. Truman, to the July 19, 2010, Executive Order No. 13547 on Stewardship of the Ocean, Our Coasts and the Great Lakes, issued by President Barack Obama. Delayed a few weeks by the fatal explosion and aftermath at the Deepwater Horizon oil rig in the Gulf of Mexico (prior IntLawGrrls posts), the latter order adopts a task force's recommendations, establishes a National Ocean Council, and proclaims a national ocean policy.
At long last the United States has a national ocean policy. Will it make a difference? Did the Truman Proclamation? Why consider documents of domestic executive power in a forum for international law?
For one, the Truman Proclamation memorialized this country’s once and future reliance on hydrocarbons and, for better or worse, it has shaped international law. It introduced the idea that the continental shelf

may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it,

and called for settling overlapping shelf claims by “equitable principles.” Via the 1969 judgment of the International Court of Justice in North Sea Continental Shelf, the 1945 Proclamation led negotiators to include the conept of “natural prolongation” in how to define the continental shelf under Article 76(1) of the U.N. Convention on the Law of the Sea. Geoscientists worldwide have learned to work with this legal construct and non-geologic definition of the shelf as they gather data that undergird national submissions to the Commission on the Limits of the Continental Shelf.
Other parts of the Truman Proclamation have been less influential in international law. Perhaps, post-Deepwater Horizon, their time has come.
Filtered through intervening years and changed understandings of resources (not just for exploitation any more) and their role in larger social or eco-systems, the Proclamation might be applied in powerful new ways. It states:

[S]elf-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources.

Yes, the focus is on utilization, and the environment goes unmentioned, but this is not surprising. It was, after all, only 1945.
If international environmental and ocean law have accomplished anything since 1945, they’ve made clear the duty of states. To quote Article 192 of the Law of the Sea Convention:

States have the obligation to protect and preserve the marine environment.

The Convention further calls for: protecting fragile ecosystems/endangered species habitats, in Article 194; contingency plans against pollution, in Article 199; and monitoring risks of pollution and assessing potential effects of activities on the marine environment, in Articles 204 and 206. Article 208 requires states to adopt rules to “prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction,” which shall be “no less effective than international rules, standards and recommended practices.” As IntLawGrrl Rebecca Bratspies has posted, regulations promulgated pursuant to the United States' Outer Continental Shelf Lands Act require shutdown of offshore operations if there exists a

threat of serious, irreparable or immediate harm or damage to life ... or to the marine, coastal or human environment.

To quote the Truman Proclamation, what “activities off our shores” are necessary today for resource use in the ocean’s subsoil and seabed? What future uses should we promote? How to define “self-protection”?
In issuing his Stewardship order last month, President Obama answered these questions by embracing one big idea: coastal and marine spatial planning, defined in § 3(b) of that Executive Order as

a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.

This big idea lets stakeholders decide, region by region, what to allow off their shores. In this and other ways, the national ocean policy reflects developments in international law since the Truman Proclamation.
The Executive Order states that it is U.S. policy to “support sustainable, safe, secure and productive access to, and uses of the ocean, our coasts, and the Great Lakes” and to “exercise rights and jurisdiction and perform duties in accordance with applicable international law.” The United States is to promote this policy by “pursuing ... accession to the Law of the Sea Convention.”
The order doesn’t mention the precautionary approach. But the Final Recommendations of the Interagency Ocean Policy Task Force, which the order adopts, do. Specifically, the Recommendations list the precautionary approach as one of the “Principles” that will guide “management decisions and actions affecting the ocean” (p. 15) and planning for achieving coastal and marine spatial planning (p. 49). Principle 15 of the Rio Declaration is quoted both times, for example:

Decision-making will also be guided by a precautionary approach as reflected in the Rio Declaration of 1992, which states ... ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’

Appendix C of the Recommendations summarizes public comments about the “precautionary approach” and “precautionary principle” (prior IntLawGrrls posts), the latter of which the United States has consistently declined to apply. To cite one example, the temporary ban on commercial fishing in the 2009 Fishery Management Plan for the U.S. Arctic invoked the precautionary approach.
The Recommendations contain another “principle”; that is, that the country

should cooperate and provide leadership internationally in the protection, management, and sustainable use of the world’s ocean [and] coastal regions, ... in keeping with applicable conventions and agreements, and with customary international law, as reflected in the Law of the Sea Convention.

(p. 17) In implementing the policy, the new National Ocean Council is to

coordinate with the Secretary of State and the heads of other relevant agencies
on matters related to the policy issues that arise within the Intergovernmental Oceanographic Commission, International Whaling Commission, Arctic Council, International Maritime Organization, regional fishery management organizations, and other similar international organizations.

(p. 22) These are just some references to international law and cooperation in the national ocean policy and the Recommendations.
The United States has helped shape in the international arena some of the concepts that have in turn been adapted for national use in the new U.S ocean policy -- sustainability, coastal and marine spatial planning, large marine ecosystems, and ecosystem-based management among them. Whether that policy will shape international law in the next 65 years, to the extent the Truman Proclamation has in the last, remains to be seen.
First, we need to work on how the new policy will shape our response to the Deepwater Horizon incident.

Selden v. Grotius, a sequel

There's something about the law of the sea.
Teaching Public International Law has taught that although the law of the sea is among those furthest from the experience of the average student, the average student nonetheless finds in the law of the sea a kind of romance. Perhaps we all still long for our own turn on Treasure Island, our own Two Years Before the Mast.
Especially gripping is the battle of words between John Selden and Hugo Grotius (prior IntLawGrrls posts). Theirs was a prime politicolegal-philosophical struggle of the middle of the last millennium -- a battle over whether the sea/mare was clausum/closed, as England's Selden maintained, or liberum/free, as Holland's Grotius posited. It is, moreover, a struggle that many an intlaw casebook renders epic. (Caveat: Our colleague Edward Gordon has published a must-read study that adds considerable complexity to this binary account of the debate respecting law and oceans.)
That struggle undergirds the newest ASIL Insight, entitled "Climate Change and Guidelines for Argo Profiling Float." The authors -- oceans experts Aurora Mateos (below left) and Dr. Montserrat Gorina-Ysern -- thus open with the reminder that

the law of the sea remains affected by an ago-old controversy among scientists and diplomats over the dichotomy between 'freedom and regulation.'

The authors proceed to detail, 1st, how the Argo float, which promises to provide data on inter alia climate change is among the "oceanic research activities with new technologies, instruments, and equipment" that engenders "a fierce resistance to legal regulation of the high seas," and 2d, how that resistance "coexists in an uneasy compromise with a fierce protection of coastal States' sovereign rights to explore and exploit the natural resources of the continental shelf and the Exclusive Economic Zone (EEC)." (image credits here and here)
Bottom line:
► In Grotian fashion, coastal states near whose waters such research might be conducted by other states -- the Insight mentions Peru and Argentina -- maintain that the Argo float and similar research activities fall within the United Nations' regulatory structure established by the 1982 U.N. Convention on the Law of the Sea.
► But research-resource-rich countries like the United States (a nonparty to the 1982 Convention, as we've posted) lean toward considering such research activities the unregulable beneficiaries of Seldenian freedom of the high seas.
The Insight authors thus expose a politicolegal-philosophical struggle that offers intlaw profs -- at least those able to navigate the viral soup of acronyms epidemic in environmental law -- a contemporary application of the old Selden-Grotius standoff.

"One Ocean, One Climate, One Future"

In 2008, the UN General Assembly adopted Resolution 63-111, ¶ 171 of which declared June 8 to be World Ocean Day. Although the Resolution contains a laundry list of marine-related issues, it devotes an entire section to preserving the marine environment. In doing so, the General Assembly was recognizing the connection between "sustainable development and management of the resources and uses of the oceans and seas" and the United Nations Millennium Goals.
The Resolution urges states to act on the concerns raised by the UN Intergovernmental Panel on Climate Change about increasing sea temperature, rising sea level, and ocean acidification, (the projections are for reduction in average global surface ocean pH of between 0.14 and 0.35 units over the 21st century) and the critical role that oceans play in mediating global climate.
The Resolution also draws attention to destruction of coral reefs, ocean dumping, overfishing, and the myriad other environmental threats facing the world's oceans. Finally, the Resolution points out that most of the pollution load of the oceans emanates from land-based activities, calls upon States to implement the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities.
There are numerous international agreements purporting to protect the oceans. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates an international legal framework for all activities in the world's oceans and seas. With regard to the environment, UNCLOS Articles 192 and 194 impose duties "to protect and preserve the marine environment" and to "prevent reduce and control pollution of the marine environment."
Additionally, the International Convention for the Prevention of Pollution from Ships (MARPOL), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (with its 1996 Protocol which bans ocean dumping), the 2004 Ballast Water Convention, the Convention on Trade in Endangered Species, the Convention on Biological Diversity, as well as numerous regional fisheries agreements all seek to channel state action towards protecting rather than harming the marine environment. Confusion and conflicting reports during the search for the wreckage of the Air France flight 447 underscored just how polluted the oceans have become. Debris and an oil slick initially thought to be from the crash turned out to be routine and wholly unrelated pollution. Indeed, a vast swath of the ocean has become the world's largest trash dump, with plastics routinely killing vulnerable marine mammals, turtles and sea birds.
The United States has one of the world's largest coastline, and claims management jurisdiction over the world's largest exclusive economic zone. It is past time to ratify UNCLOS, and to take a leadership role in protecting and preserving the world's oceans as part of a comprehensive plan to preserve the earth and to promote the welfare of its inhabitants. We do indeed have "one ocean, one climate, one future."