CHAPTER 7

PROTECTION OF THE MARINE ENVIRONMENT

The world's oceans comprise about 70 percent of the surface of planet earth. A report published in the journal Science in 20081, analyzing 17 global data sets of anthropogenic impacts on the world's oceans, found that no area of the oceans is unaffected by human activity and that over 41 percent of the oceans of the world are "strongly" fouled by pollutants. Only 3.7 percent of the oceans have small impacts from humans; these areas lie near the North and South Poles. In this chapter we address in comprehensive fashion international law concerning marine pollution, marine living resources, and protection of marine ecosystems. Because international law concerning the protection of the marine environment is part of the larger corpus of the international law of the sea, we first present a "bird's eye view" of the law of the sea as codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The student should read the text of UNCLOS, portions of which are reprinted in the Documentary Supplement.

SECTION I. The Marine Environment and the Law of the Sea

A. The UNCLOS "Constitution" for the Law of the Sea

The provisions of UNCLOS are often compared to constitutional provisions for the law of the sea.2 UNCLOS provides very comprehensive rules on the law of the sea: virtually every aspect of mankind's use and abuse of the world's oceans is addressed to some degree by this Convention. But despite the comprehensive nature of UNCLOS, many of its rules are unclear, ambiguous and disputed. The full scope of UNCLOS is beyond the scope of this book, but for those who are unacquainted with this Convention, we provide a brief overview of this landmark agreement in order that the body of international law relating to protection of the marine environment may be better understood. The international law relating to protection of the marine environment must be learned in the context of the larger body of law represented by UNCLOS. And UNCLOS itself, as we shall see, addresses to some extent all aspects of protection of the marine environment, although by necessity in such a fashion as to require further agreements on more specific rules of law.3

UNCLOS, which was concluded at Montego Bay, Jamaica, December 10, 1982, was the culmination of several attempts to codify the international law of the sea in the twentieth century. In the 1930s, the League of Nations convened a conference at the Hague for the purpose of concluding an agreement on

1 Benjamin S. Halpern et al, A Global Map of Human Impact on Marine Ecosystems, 319 Science 948-52 (2008).

2 Mr. T.B. Koh of Singapore, the President of the Third United Nations Conference on the Law of the Sea first made this comment at the signing ceremony for UNCLOS.

3 For detailed treatment of the international law of the sea and UNCLOS, see R.R. Churchill and A.V. Lowe, The Law of the Sea (3d ed.) (Manchester: Manchester University Press, 1999).

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the law of the sea, but this conference adjourned without agreement. In the post-World War II period, the first United Nations Conference on the Law of the Sea (1958) concluded four separate treaties: (1) the Convention on the Territorial Sea and the Contiguous Zone; (2) the Convention on the High Seas; (3) the Convention on the Continental Shelf; and (4) the Convention on Fishing and Conservation of the Living Resources of the High Seas: A second United Nations Conference on the Law of the Sea in 1960, was unsuccessful. A third United Nations Conference on the Law of the Sea was convened by the General Assembly of the United Nations in 1973, which produced UNCLOS, the Montego Bay Treaty. On November 16, 1994, the UNCLOS formally entered into force. At this writing 161 states and the European Union are parties to UNCLOS. The United States is the only significant country that is not a party to this important Convention.

UNCLOS reversed centuries of customary law of freedom of the seas by extending formal recognition to several categories of ocean zones that are under the jurisdiction and control of coastal states; nevertheless, freedom of navigation over ocean space is largely maintained despite the recognition of such national zones.

UNCLOS comprises 320 articles and includes nine annexes and two "implementing conventions". UNCLOS is subdivided into 17 parts as follows:

Part I of UNCLOS (Art. 1) is titled “Introduction". This part sets out some important definitions of terms used in the Convention.

Part II of UNCLOS (Arts. 2-33) is devoted to the maritime zones known as the territorial sea and the contiguous zone. Every coastal state has the right to establish a territorial sea of up to 12 nautical miles (Art. 3), measured from its coastal baseline, as well as a contiguous zone of an additional 12 nautical miles where the state may enforce its customs, fiscal and other laws (Art. 33). The right of "innocent passage" of ships of all nations, including military vessels, is also defined and preserved (Arts. 17-32).

Part III of UNCLOS (Arts. 34-45) deals with maritime straits used for international navigation. This part establishes international rules and a right of "transit passage" for ships and aircraft through such straits.

Part IV of UNCLOS (Arts. 46-54) addresses the issue of archipelagic states, establishing rules for determining the baselines of such states, the measurement of the breadth of the territorial sea, the contiguous zone, and the continental shelf, the legal status of archipelagic waters, and rules for the innocent passage of ships and aircraft.

Part V of UNCLOS (Arts. 55-75) establishes the right of each coastal state to an Exclusive Economic Zone (EEZ) of up to 200 nautical miles, measured from the coastal baseline of the state. This Part also addresses the conservation and utilization of living resources in this zone, a topic that will be addressed below in this chapter.

Part VI of UNCLOS (Arts. 76-85) recognizes the right of coastal states to jurisdiction and control over their Continental Shelves, the seabed and subsoil of offshore submarine areas, to distances of 200 nautical miles from the coastal states' respective baselines. UNCLOS recognizes and sets out rules for

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extending control of the Continental Shelf beyond 200 miles and establishes a Commission on the limits of the Continental Shelf to make recommendations to coastal states concerning this process.

Part VII of UNCLOS (Arts. 86-120) sets out legal rules to govern the use of the High Seas, areas of the oceans beyond national jurisdiction, as well as rules relating to navigation and the conservation and use of living resources in the High Seas.

Part VIII of UNCLOS (Art. 121) deals with islands and their maritime zones.

Part IX of UNCLOS (Arts. 122-123) establishes rules concerning Enclosed or Semi-Enclosed Seas.

UNCLOS Part X (Arts. 124-132) guarantees the right of access to the sea and freedom of maritime transit to land locked states.

Part XI of UNCLOS (Arts. 133-19 1) creates a legal regime to govern what is called "the Area", the deep seabed beyond national jurisdictions. The Area is declared to be "the common heritage of mankind" (Art. 136)4, and no state may claim sovereignty over any part of the Area or its resources (Art. 137). UNCLOS establishes an International Seabed Authority (ISA) as an autonomous international organization headquartered in Kingston, Jamaica, to set policy and to administer the exploitation and the protection of the Area. The ISA includes five bodies: the Assembly, the Council, the Legal and Technical Commission, the Finance Committee and the Secretariat.5 The supreme organ of the ISA is the Assembly, which consists of a iiiSA members. The Assembly elects the members of the Council and other bodies; appoints the Secretary-General, who is head of the Assembly, sets the ISA's budget, approves rules and regulations after they are considered and adopted by the Council, and makes financial and technical decisions concerning deep-sea mineral exploitation. The comprehensive set of rules and regulations issued by the ISA is called the Mining Code6, which also includes the forms necessary to apply for seabed exploration rights as well as the standard terms of exploration contracts.

Part XII of UNCLOS (Arts. 192-237) concerns protection and preservation of the marine environment; we consider these articles in detail immediately following this section.

Part XIII of UNCLOS (Arts. 238-265) establishes rules for marine scientific research.

Part XIV of UNCLOS (Arts. 266-278) contains rules to govern the development and transfer of marine technology.

4 For a comprehensive article on the meaning of this term, see Patricia Mallia, The Applicability of the Principle of the Common Heritage of Mankind to the Waters and Airspace Superjacent to the International Seabed Area, 19 JIML 331 (2013).

5 See http://www.isa.org.

6 Ibid.

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UNCLOS MARITIME ZONES

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UNCLOS RULES ON THE CONSTRUCTION OF COASTAL BASELINES

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Part XV of UNCLOS (Arts. 279-299) contains important provisions on the settlement of disputes. UNCLOS establishes a system of compulsory dispute settlement for international maritime disputes, although this system contains several important exceptions. We consider dispute settlement in detail below.

UNCLOS Part XVI (Arts. 300-304) contains general provisions on good faith and abuse of rights, disclosure of information, archaeological and historical objects found at sea, and responsibility and liability for damage. The latter provision (Art. 304) preserves the application of existing and future rules on responsibility and liability under international law.

UNCLOS Part XVI I (Arts. 305-320) contains Final Provisions on matters such as entry into force of the convention, reservations (none are permitted), the relationship of UNCLOS to other international instruments, and amendment procedures.

B. The Status of UNCLOS in United States Law

Although the United States delegation was very active in helping to formulate most of the provisions of UNCLOS, the United States voted against the final text of the Convention and at this writing is not a party to UNCLOS. The US rejection of the Convention in the 1980s was based primarily upon the seabed mining regime (Part XI), which, because of mandatory technology transfer provisions and production quotas and other provisions, was regarded as unfavorable to the US and other developed countries. In 1994, a new Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea was adopted by the United Nations' General Assembly. This Agreement, which is reprinted in the Documentary Supplement and will be considered in more detail later in this chapter, restructured the JSA to give the United States veto power over key decisions, guarantees the US a seat on the Council and ends mandatory production quotas and transfer of technology, in favor of free market principles.7 After the adoption of this Agreement, which is effectively an amendment to UNCLOS, Presidents Clinton, Bush and Obama, have called on the US Senate to ratify UNCLOS, but the U.S. Senate has not taken this step.

In 1983, President Ronald Reagan formally proclaimed a US Exclusive Economic Zone of 200 nautical miles and announced that the United States "will recognize the rights of other states in the waters off their coasts, as reflected in the Convention," and the UNCLOS is largely observed by the United States as binding customary international law.8 1n 1988, President Reagan proclaimed an extension of the US territorial sea to 12 nautical miles in accordance with the Convention.9 In 1994, when President Clinton signed the 1994 Agreement, he pledged that the US is committed to provisional application of the

7 See Bernard Oxman, The 1994 Agreement and the Convention, 88 Am. J. Int’l L. 687 (1994).

8 See David Caron and Harry N. Schreiber, The United States and the 1982 Law of the Sea Treaty, 11 ASIL Insights, Issue 16 (2007).

9 24 U.S. Weekly Compilation of Presidential Documents 1661 (No. 52), reprinted 28 ILM 284 (1989).

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UNCLOS seabed regime, as modified by the 1994 Agreement.10 The US is an observer at the meetings of the International Seabed Authority.

QUESTIONS

Should the United States become a party to UNCLOS? If you were a member of the Senate of the United States, would you vote in favor of ratification?

Some arguments in favor of ratification:

Enhancement of US security interests in the world's oceans Protection of US economic and environmental interests Participation by US in key decisions made by the UNCLOS institutions Participation by US in process of adjudicating and processing claims over ocean resources

Some arguments against:

The US would be bound by the mandatory dispute settlement provisions of UNCLOS and would be subject to unwarranted lawsuits in international tribunals

The ISA is still dominated by developing countries hostile to US interests The US has little to gain by ratification since its interests are already guaranteed by customary

international law.

C. UNCLOS Part XII: Protection and Preservation of the Marine Environment

Part XII of UNCLOS contains substantive standards for the protection of the marine environment against all forms of environmental degradation. This Part also establishes an important legal framework for further agreements to deepen comprehensive protection of the marine environment. Many of the provisions of this Part are general in nature and presume the conclusion of more specific implementing agreements.

Please read carefully the UNCLOS Part XII, Articles 192 to 237, in the Documentary Supplement.

The obligations in section 1 (Arts. 192 to 196) of Part XII are quite general but they are comprehensive and important. Parties have the right to exploit natural resources in their sovereign control, but also must prevent, reduce, and control marine pollution from all sources and to take "all necessary measures" to ensure that such pollution does not spread beyond national jurisdictions. The legal standard for marine pollution control that states must apply as set out in Article 194(1): States must use the "best practical means at their disposal and in accordance with their capabilities." Parties also must prevent, reduce and control pollution resulting from the use of technologies under their jurisdiction and prevent the accidental or intentional introduction of alien or new species into the marine environment.

Article 1(4) of UNCLOS defines "pollution of the marine environment" as:

10 Oxman, op. cit.

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"the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water an reduction of amenities."

In addition, Article 194(5) requires parties to take measures to preserve "rare and fragile marine ecosystems" and the marine habitats of rare and endangered species. Article 195 takes a holistic approach: in taking measures to control marine pollution, parties may not transfer damage or transform one type of pollution into another.

The comprehensive obligations of Section 1 are reinforced by UNCLOS Part XII, section 2 (Arts. 197 to 201), which requires state-parties to cooperate on a global or regional level, to have contingency plans to cope with pollution, and to employ scientific criteria for the regulation of polluting activities.

Section 3 (Arts. 202-203) requires technical assistance to developing states on preferential terms to improve their capacity to protect the marine environment.

Section 4 (Arts. 204 to 206) requires states to monitor and publish the risks and effects of pollution and related activities.

Section 5 reinforces the preceding general obligations by stating separate obligations to control the various sources of marine pollution: (1) land-based sources (Art. 207); (2) pollution from continental shelf activities (Art. 208); (3) pollution from activities in the Area (Art. 209); (4) pollution from dumping (Art. 2 10); (5) pollution from vessels (Art. 2 1 1); and (6) pollution from the atmosphere (Art. 212).

UNCLOS requires states to adopt national standards for each source of marine pollution that are at least as strict as international standards, with the exception of land-based pollution standards, which must "take into account" international rules and the economic capacity of developing states. Standards for toxic pollutants, however, must minimize such pollution "to the fullest extent possible."

UNCLOS clearly contemplates, therefore, that state-parties will cooperate to develop international legal rules for all sources of marine pollution.

Enforcement of national and international rules is addressed by section 6 of Part XII, Articles 213 to 222. Note that enforcement of marine pollution rules is up to national authorities. Enforcement may be carried out by (1) the flag state; (2) by the port state; and (3) by the coastal state. Which state has priority? What are the criteria for enforcement activities by each category of state?

Note that under Articles 2 19 and 221, states may take the initiative to avoid or prevent pollution from unseaworthy vessels or vessels involved in marine casualties.

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Section 7 (Arts. 223-233) covers safeguard measures designed to facilitate cooperation in enforcement activities. Note Article 228 and compare Article 229. Are these safeguard provisions really necessary?

Section 8 (Art. 234) is a special provision for control of pollution in ice-covered areas.

Section 9 (Art. 235) preserves the international law of state responsibility with respect to marine pollution obligations and mandated cooperation to conclude international regimes for liability and compensation for marine pollution damages.

Section 10 (Art. 236) preserves the international law of sovereign immunity for warships and government-operated ships for non-commercial purposes.

Section 11 (Art. 237) requires states to observe the obligations they assume in additional international agreements relating to protection of the marine environment. Thus UNCLOS does not purport to be a complete code, but looks toward additional international agreements addressing more specific problems of environmental protection.

Note that the provisions of Part XII build up on Principle 7 of the Stockholm Declaration of 1972, (covered in chapter 2), which urged states to take "all possible steps" to prevent hazards to human health and marine life.11 Is Part XII consistent with the Rio Principles we covered in chapter 2, such as the Prevention Principle and the Principle of Sustainable Development?

Agenda 21, Chapter 7 of the Report of the United Nations Conference on Environment and Development establishes a seven point agenda for preserving and protecting the marine environment building upon UNCLOS Part XII. Agenda 21 represents a program for future action by national governments and international organizations. We reprint this part of Agenda 21 in the Documentary Supplement.

D. Dispute Settlement under UNCLOS

Read carefully the provisions of UNCLOS Part XV, Articles 279 to 299.

The dispute settlement of UNCLOS are very complex, reflecting difficult negotiations between those states that wanted compulsory dispute settlement and those states that did not want to be pinned down to utilize international dispute settlement procedures. Let us analyze these articles.

Article 279 obliges parties to seek and use peaceful methods of dispute settlement as required by the United Nations Charter. Note that section 1 of Part XV gives state-parties three options:

First option: Article 280 states that parties to a dispute can agree among themselves on the appropriate means or procedure to settle their dispute.

Second option: Article 282 states that where parties to a dispute have agreed, through a general, regional, or bilateral agreement, or otherwise, on a procedure that entails a binding decision, that procedure shall apply at the request of any party to the dispute. Note that such an agreed dispute settlement procedure takes precedent to the dispute settlement procedures

11 U.N. Doc. A/Conf.48/14/Rev.1 (1972).

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under UNCLOS, in any event. We will see that this provision can be used to oust a dispute from the UNCLOS dispute system.

Third option: Article 284 provides that the parities by agreement can submit the dispute to non-binding Conciliation under the procedure established under UNCLOS Annex V or some other conciliation procedure. Note, however, that this procedure applies only if parties to a dispute agree, and the procedure leads only to a non-binding conciliation recommendation.

Section 2 of Part XV, Article 2 86, provides that if the state-parties have not reached any agreement on a procedure under section 1, section 2--compulsory jurisdiction entailing a binding decision---will apply to the settlement of the dispute.

Article 287 details the compulsory procedures that will lead to a binding decision settling the dispute:

Upon each state-party's acceptance of UNCLOS or thereafter, the state-party "is free to choose, by means of a written declaration" one or more of four dispute settlement methods:

(a). The International Tribunal for the Law of the Sea (ITLOS), a specialized tribunal constituted under UNCLOS Annex VI. The ITLOS has its seat of operations in Hamburg, Germany and consists of 21 independent persons, no two of which can come from the same state, elected by two-thirds majorities by the states-parties, who serve renewable nine-year terms. The ITLOS was established in 1996, and at this writing has rendered decisions in nineteen cases. See http://ww.itlos.org.

(b). The International Court of Justice(c). An Arbitral Tribunal constituted under UNCLOS Annex VII, which provides for an Arbitral

Tribunal composed of five persons, who have the power to render a final and binding decision settling the dispute.

(d). A Special Arbitral Tribunal constituted in accordance with UNCLOS Annex VIII , which provides for an Arbitral Tribunal of five persons with expertise in fisheries, marine environment, marine research, or navigation. The decision of this Tribunal is "conclusive" as between the parties unless they otherwise agree.

Article 287 provides, however, that, if a state-party is not covered by a declaration in force, it will be deemed to accept Annex VII Arbitration. Thus, a state-party cannot escape binding dispute settlement, and Annex VII Arbitration is the default dispute settlement method.

If, however, state-parties having a dispute have all accepted the same one of the four above methods of dispute settlement, this method will apply. If different methods have been accepted by the state-parties to the dispute, Annex VII Arbitration will apply.

Section 3 of Part XV creates important limitations and exceptions to the compulsory dispute settlement regime of section 2.

Article 297 contains three automatic limitations to section 2.

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First, disputes concerning the exercise of its sovereign rights or jurisdiction by a coastal state as granted by UNCLOS are subject to the compulsory dispute settlement procedures of section 2 only

(a) If it is alleged the coastal state has contravened UNCLOS with respect to rights of freedom of navigation, overflight, laying cables or pipelines, or lawful uses of the sea specified in UNCLOS Article 58 (stating the rights of non-coastal states in exclusive economic zones).

(b) If it is alleged that the non-coastal state exercising the freedoms of navigation, overflight, laying of cables and pipelines, has contravened laws of the coastal state that are compatible with UNCLOS or other rules of international law.

(c) If it is alleged that the coastal state has acted in contravention of international rules protecting the marine environment which are applicable in the coastal state as established by UNCLOS or through a competent international organization.

Second, marine scientific research disputes are to be settled under section 2, except that a coastal state may reject compulsory dispute settlement for a dispute involving UNCLOS Article 246 (the right of a coastal state to regulate research in its EEZ or continental shelf) or UNCLOS Article 253 (the right of a coastal state to suspend research in its EEZ or continental shelf). Such disputes must, however, be remitted to non-binding Conciliation under Annex V, but the coastal state's exercise of discretion as permitted under the UNCLOS must be respected.

Third, disputes concerning fisheries are to be settled under section 2, except that a coastal state may reject compulsory dispute settlement "for any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations." The excluded types of fisheries disputes must, however, be submitted to Conciliation under Annex V if it is alleged that the coastal state has manifestly failed to comply with its obligation to conserve and manage living resources in its EEZ; or has arbitrarily refused to determine, at the request of another state, its allowable catch; or has arbitrarily refusing to permit other state's from harvesting a surplus in its EEZ, or is closing out fishing by nationals from land-locked or geographically disadvantaged states. But the Conciliation Tribunal must respect the discretion of the coastal state involved in such cases.

In addition, Article 298 of UNCLOS specifies three optional exceptions to the compulsory and binding dispute settlement under section 2 that may be invoked by state-parties to UNCLOS on accepting the Convention or at any time thereafter:

First, a state party may exclude any dispute involving sea boundary delimitations (Arts. 15, 74, and 83) or those involving historic bays or titles. Such disputes must, however, be submitted to Conciliation under Annex V unless they involve an unsettled territorial or sovereignty dispute.

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Second, a state-party may exclude disputes involving military activities or aircraft engaged in non-commercial service or law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.

Third, a state-party may exclude disputes that are before the United Nations Security Council.

PROBLEM 7-1

A DISPUTE BETWEEN NEIGHBORING STATES OVER MARINE POLLUTION

State A and State B are located adjacent to one another and share a common land border. The City of X, which is located in State A on the border of State B, operates an ocean outfall that from time to time emits raw sewage and toxic chemicals into the ocean waters shared by States A and B. In addition, a refinery in State A owned by the Acme Corporation, a private company, discharges oily effluent into the sea, which pollutes the maritime waters bordering States A and B. Both the ocean outfall operated by City of X and the refinery are in compliance with the national pollution laws of State A. Both State A and State B are parties to UNCLOS.

Does UNCLOS create an international cause of action in favor of State B against State A? Discuss.

PROBLEM 7-2

A DISPUTE BETWEEN NEIGHBORING STATES OVER FISHING

States W and Z, both parties to UNCLOS, are adjacent coastal states and share a common land border. A productive coastal fishery, the Banks, is located some 60 nautical miles offshore both countries and is exploited by fishing vessels of both countries. Both states W and Z have established 200 nautical mile EEZs, but the lateral maritime boundary between W and Z is disputed; both states claim the entire fishing Banks as within their respective EEZ. In addition, while State W has adopted and enforces strict catch limits for fishing resources on the Banks, state Z, a developing country, does not enforce any management standards, so that fishing stocks on the Banks are depleted despite the strict regulations applied by state W.

How should the dispute between state W and state Z be settled under UNCLOS? Discuss.

SECTION 11. The Principal International Organizations Involved in Protecting the Marine Environment

Two international organizations sponsor conventions and international agreements concerning activities that degrade the marine environment: the International Maritime Organization (IMO), based in London, and the United Nations Environment Program, based in Nairobi, Kenya.

A. The International Maritime Organization (JMO)

The Convention establishing the International Maritime Organization (IMO) was adopted in Geneva in 1948 and IMO first mat in 1959. IMO's main task has been to develop and maintain a comprehensive

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regulatory framework for shipping and its remit today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.

A specialized agency of the United Nations with 169 Member States and three Associate Members, IMO is based in the United Kingdom with around 300 international staff.

IMO's specialized committees and sub-committees are the focus for the technical work to update existing legislation or develop and adopt new regulations, with meetings attended by maritime experts from Member Governments, together with those from interested intergovernmental and non-governmental organizations.

The result is a comprehensive body of· international conventions, supported by hundreds of recommendations governing every facet of shipping. There are, firstly, measures aimed at the prevention of accidents, including standards for ship design, construction, equipment, operation and manning - key treaties include SOLAS, the MARPOL convention for the prevention of pollution by ships and the STCW convention on standards of training for seafarers.

Then there are measures which recognize that accidents do happen, including rules concerning distress and safety communications, the International Conll8ntion on Search and Rescue and the International Convention on Oil Pollution Preparedness, Response and Cooperation.

Thirdly, there are conventions which establish compensation and liability regimes – including the International Convention on Civil Liability for Oil Pollution Damage, the convention establishing the International Fund for Compensation for Oil Pollution Damage and the Athens Convention covering liability and compensation for passengers at sea.

Inspection and monitoring of compliance are the responsibility of member States, but the adoption of a Voluntary IMO Member State Audit Schema is playing a key role in enhancing implementation of IMO standards. The first audits under the Voluntary IMO Member State Audit Scheme were completed at the end of 2006 but the IMO Assembly has agreed a program to make this schema mandatory, with the entry into force of the mandatory audit scheme likely to be in 2015.

List of IMO Conventions

Related Protocols are referred to under the main Convention

Most important IMO Conventions

International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended

International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997(MARPOL)

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) as amended, including the 1995 and 2010 Manila Amendments

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Other conventions relating to maritime safety and security and ship/port Interface

Convention on the International Regulations for Preventing Collisions at Sea (COLREG), 1972

Convention on Facilitation of International Maritime Traffic (FAL), 1965

International Convention on Load Lines (LL), 1968

International Convention on Maritime Search and Rescue (SAR), 1979

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation

(SUA), 1988, and Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed

Platforms located on the Continental Shelf (and the 2005 Protocols)

International Convention for Safe Containers (CSC), 1972

Convention on the International Maritime Satellite Organization (IMSOC), 1976

The Torremolinos international Convention for the Safety of Fishing Vessels (SFV), 1977

International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F), 1995

Special Trade Passenger Ships Agreement (STP), 1971 and Protocol on Space Requirements for Special Trade Passenger Ships, 1973

Other conventions relating to prevention of marine pollution

International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION), 1969

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LC), 1972 (and the 1996 London Protocol)

International Convention on Oil Pollution Preparedness. Response and Co-operation (OPRC), 1990

Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol)

International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001

International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004

The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009

Conventions covering liability and compensation

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International Convention on Civ11 Liability for Oil Pollution Damage (CLC), 1969

1992 Protocol to the International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage (FUND 1992)

Convention relating to Civil Liability in the Field of Maritime Carnage of Nuclear Material (NUCLEAR), 1971

Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL), 1974

Convention on Limitation of Liability for Maritime Claims (LLMC), 1976

International Convention on Liability and Compensation for Damage in Connection w1th the Carnage of Hazardous arid Noxious Substances by Sea (HNS), 1996 (and its 2010 Protocol)

International Convention on Civil Liability for Bunker Oil Pollut1on Damage, 2001

Nairobi International Convention on the Removal of Wrecks, 2007

Other subjects

International Convention on Tonnage Measurement of Sh1ps (TONNAGE), 1969

International Convention on Salvage (SALVAGE), 1989

NOTE ON THE WORK AND WORKINGS OF THE INTERNATIONAL MARITIME ORGANIZATION

The work of the International Maritime Organization (IMO) extends beyond protection of the marine environment to include virtually all matters pertaining to shipping and the oceans. IMO's work includes maritime safety, maritime security, standards for workers in the shipping industry, and the facilitation of maritime navigation and shipping. The IMO web site is http://www.imo.org.

IMO works through an Assembly, which consists of all IMO members, and a Council of 40 members elected by the Assembly for two-year terms. The Council members must include 10 members with the largest interest in international shipping services; 10 members with the largest interest in international seaborne trade; and 20 members with special interests in maritime transport and navigation. The work of the Assembly and Council is assisted by. (1) a Maritime Safety Committee (MSC), (2) a Marine Environmental Protection Committee (MEPC) and various subcommittees. The IMO Legal Committee may consider any legal matter involving IMO's work. In addition, a Technical Cooperation Committee aids the implementation of technical standards and solutions, and a Facilitation Committee considers how the efficiency of international shipping may be enhanced. IMO has a full-time Secretariat led by a Secretary-General.

The IMO Assembly meets every two years, although special sessions can be called. The Council is IMO's main body; the Council adopts IMO's budget, work program and makes financial decisions. IMO takes decisions commonly by consensus.

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PROBLEM 7-3

ADOPTING A NEW IMO STANDARD

Suppose that an environmental NGO has drawn to the attention of your nation--a member of IMO--that an important new technological breakthrough has made it easier and cheaper to control emissions into the air of major pollutants commonly emitted by ships' engines. You understand that the general subject of air pollution from ships is covered by the International Convention for the Prevention of Pollution from Ships (1973 and 1978), known as MARPOL. Your nation believes that the technology in question should be drawn to the attention of the entire IMO membership, and that MARPOL should be amended to require the new technology as an international shipping standard.

Suppose also that your nation believes that an entirely new IMO initiative should be started to adopt international standards for the protection of coral reefs in the marine environment.

How will your nation's delegation to IMO put forward these proposals, and how might they be handled by IMO so that they become international rules of law?

1. Consider how and where to raise these matters at IMO; what do you suggest?2. Should your delegation carefully prepare before making your intervention at IMO?3. Your delegation's proposals may be referred to an IMO Committee or subcommittee or a

Working Group may be established to develop them further. What committees will likely consider them?

4. The subcommittee or Working Group may solicit information from UN specialized agencies or from IMO member states or NGOs.

5. The subcommittee will report to the relevant full committee, to the Council or to the Assembly.6. A draft international instrument may be reported to the Council with recommendations by the

relevant subcommittee, Working Group, and committees.7. The Council or Assembly may decide to convene an international conference to consider the

matter and the draft international instrument.8. At the conference members will discuss the proposal and the draft instrument and amendments

may be adopted. Observers will be invited to the conference, including NGO, industry representatives, and intergovernmental agencies.

9. If the conference formally adopts (by consensus) a draft international convention or an amendment to an existing IMO convention, states may sign the convention "subject to ratification, acceptance, approval, and accession." What is the meaning of this phrase and this process? See the Vienna Convention on the Law of Treaties, 1969, Articles 12 and 18. The words "acceptance" and "approval" basically mean the same as ratification but the process of ratification of a treaty is controlled by national constitutional law, which may require special proceedings and the passage of domestic legislation. An IMO multilateral treaty will be declared open for signature for a specified period of time. Accession is the method of adhering to a treaty by a state that did not sign while the treaty in question was open for signature.

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10. A multilateral convention will enter into force only when it has been ratified (accepted or approved) by the specified number of governments as stated in the convention.

11. An amendment to an existing IMO convention may come into force much more quickly than a new IMO convention. In 1971, because of concern over the delay that commonly attended IMO convention amendments coming into force, the IMO Assembly adopted Resolution A.249(VII), which specifies that IMO convention amendments should come into force through a special "Tacit Acceptance Procedure". Under this procedure, which is a feature of most IMO conventions, the IMO body which adopts the amendment at the same time fixes a time period within which contracting parties to the particular convention have the opportunity to notify either their acceptance or rejection of the amendment. If they remain silent and the period of time specified expires, the amendment is considered to have been accepted by the party.12

12. The enforcement of IMO conventions is up to member states; IMO has no internal enforcement power.

12 See Oya Ozcayir, IMO Conventions; The Tacit Consent Procedure and Some Recent Examples, 10 JIML 204 (2004).

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B. The United Nations Environment Program and the Regional Seas Program

The United Nations Environment Program, which we covered in chapter 2, is active in combating marine pollution and dealing with maritime environmental problems though various Regional Seas Programmes. UNEP's web site contains the following description of such programs.

The Regional Seas Proqramme, launched in 1974 in the wake of the 1972 United Nations Conference on the Human Environment held in Stockholm, is one of UNEP's most significant achievements in the past 35 years.

The Regional Seas Programme aims to address the accelerating degradation of the world's oceans and coastal areas through the sustainable management and use of the marine and coastal environment, by engaging neighboring countries in comprehensive and specific actions to protect their shared marine environment. It has accomplished this by stimulating the creation of Regional Seas programme prescriptions for sound environmental management to be coordinated and implemented by countries sharing a common body of water.

Today, more than 143 countries participate in 13 Regional Seas programmes established under the auspices of UNEP: Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, Northwest Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa. Six of these programmes, are directly administered by UNEP.

The Regional Seas programmes function through an Action Plan. In most cases the Action Plan Is underpinned with a strong legal framework In the form of a regional Convention and associated Protocols on specific problems. Furthermore, 5 partner programmes for the Antarctic, Arctic, Baltic Sea, Caspian Sea and North-East Atlantic Regions are members of the RS family.

All programmes reflect a similar approach, yet each has been tailored by its own governments and institutions to suit" their particular environmental challenges.

The work of Regional Seas programmes is coordinated by UNEP's Regional Seas Branch based at the Nairobi Headquarters. Regional Coordination Units (RCUs), often aided by Regional Activity Centres (RACs) oversee the implementation of the programmes and aspects of the regional action plans such as marine emergencies, information management and pollution monitoring.

Key Issues

Coastal Area Management

Coastal Zone Management

From the earliest day of the Regional Seas Programme, environmental management has always been a key chapter of the Regional Seas action plans, beginning with the Mediterranean. more . . .

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Coastal Development

Some 37% of the world’s population lives within 100 km of the coast, at a population density twice the global average. more . . .

Ecosystems and Biodiversity

Coral reefs

Coral reefs are among the most productive and diverse of all natural ecosystems. Recent decades have been catastrophic for them, however; some 10% of the world's reefs may already have been degraded beyond (recovery and another 30% are In decline. more . . .

Marine Mammals

Many species of whales, seals and dolphins are threatened world-wlde. Hundreds of thousands of dolphins and whales die each year In fishing nets. more . . .

Marine Protected Areas

The RSCAPs are considered to have a major role to play In the promotion of the Jakarta Mandate of the Convention on Biological Diversity (CBD) at the regional level. more . . .

UNEP Regional Seas Programme and Marine and Coastal Invasives - April 2006

Our mandate can be found In ceo decisions Vl/23 1 / and VII/5. Decision Vl/23 2/ paragraph 26(e) requested the Executive Secretary, In collaboration with the Global Invasive Species Programme (GISP) and other relevant organizations, to develop a joint programme of work on invasive alien species (IAS). more . . .

Large Marine Ecosystems (LMEs)

Large Marine Ecosystems (LMEs) are regions of ocean encompassing coastal areas fnom river basins and estuaries to the seaward boundaries of continental shelves and the outer margins of the major current systems. These areas of the ocean are characterized by distinct bathymetry, hydrography, productivity and trophic interaction. They provide a flexible approach to ecosystem-based management by identifying driving forces of ecosystem change, within the framework of sustainable development. UAEs are located within Regional Seas areas. more . . .

Land-based Sources of Pollution

Municipal, Industrial and agricultural wastes and run-off account for as much as 80% of all marine pollution. Sewage and waste water, persistent organic pollutants (including pesticides), heavy metals, oils, nutrients and sediments. more . . .

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Marine Litter

Marine litter is a comprehensive problem, with significant implications for the environment and human activity all over the world. It is found in all seas; not only in densely populated regions, but also in remote places far away from any obvious sources.

NOTEThe most extensive of the U N regional seas program is the oldest one, the Barcelona Convention for protection of the Mediterranean Sea. The original Barcelona Convention dates from 1976, and entered into force in 1978. The original convention was modified by extensive amendments in 1995, and the amended document is known as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, in force since 2004 for twenty-one riparian states and the European Union. The Barcelona Convention (1995) is reprinted in the Documentary Supplement.The parties to the Barcelona Convention have adopted an Action Plan for the Protection of theMarine Environment and Sustainable Development of the Coastal Area of the Mediterranean ( 1995) as well as protocols covering specific aspects of the Mediterranean Sea:

Protocol for the prevention and elimination of pollution in the Mediterranean Sea by dumping from ships and aircraft or incineration at sea.

Protocol concerning cooperation in combating pollution of the Mediterranean Sea by oil and other harmful substances in cases of emergency.

Protocol for the protection of the Mediterranean Sea against pollution from land-based sources and activities.

Protocol concerning specially protected areas and biological diversity in the Mediterranean .

Protocol concerning cooperation in preventing pollution from ships and, in cases of emergency, combating pollution of the Mediterranean Sea.

Protocol on Integrated Coastal Zone Management in the Mediterranean.

Protocol for the Protection of the Mediterranean Sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil.

Protocol on the prevention of pollution of the Mediterranean Sea by transboundary movements of hazardous wastes and their disposal.

This comprehensive approach toward protection of the Mediterranean Sea depends for implementation on actions by national governments and the EU. A distinctive feature of the Barcelona Convention and its protocols is a non-adversarial, transparent and relatively effective compliance mechanism that is aimed at providing advice and technical assistance to parties facing problems of implementation. See http://www.unepmap.org.

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SECTION III. LAND BASED MARINE POLLUTION AND INTERNATIONAL LAW

The first efforts to deal with land-based marine pollution in international law can be traced to the adoption of a regional convention, the 1974 Convention for the Prevention of Marine Pollution fromLand Based Sources, reprinted in 13 ILM 352 (1974), known as the Paris Convention, which entered into force in 1978. The parties to the Paris Convention were developed European states, and the Convention applied to the area of the Northeast Atlantic Ocean and the North Sea. The Paris Convention established the Paris Commission to establish "best environmental practices" to serve as international standards for land based municipal, industrial and agricultural pollution emanating from land based sources. In 1992, the Paris Commission was merged with the Oslo Commission created by the Oslo Convention (the Convention for the Prevention of Marine Pollution by Dum ping from Ships and Aircraft (1972). In 1998, a replacement for the Paris and Oslo Conventions entered into force: the Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention), and the two Commissions became the OSPAR Commission.

At the present time the OSPAR Convention operates as an Independent Regional Seas Programme covering the north-east Atlantic Ocean and the North Sea ranging from the North Pole to the Straits of Gibraltar. The Convention's management body, the OSPAR Commission, based in London, brings together 15 state-parties, the European Union, and observers from some 27 non-governmental organizations, representing both environmental groups and industry. The OSPAR Commission and a small Secretariat, important treaty bodies based in London, continue to work on land based pollution as well as other problems. Over the years the OSPAR Commission has formulated and issued several hundred Decisions, Recommendations, Agreements, and Guidances concerning a wide range of aspects of land based marine pollution. The OSPAR Convention is based upon the precautionary principle; the polluter pays principle; Best Available Techniques (BAT); and Best Environmental Practices ( BEP). See the OSPAR web site, http://www.ospar.org.

Current international law norms applicable to land-based pollution may be classified into several categories.

First, customary law norms clearly apply. Foremost among these rules of customary international law is the Harm Prevention Principle, which we have already covered in chapters two and three.This is the rule that no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another state or areas beyond national jurisdiction.13 However, there are many problems with using this rule in a particular case. Among such problems are (1) the abstract nature of the rule; (2) the fact that liability under this rule is based on an obligation to use "due diligence", which is another vague concept. It is also uncertain how due diligence should be interpreted with respect to developing states and the principle of common but differentiated responsibilities. Is there a double standard for due diligence?

Second, the UNCLOS contains norms that apply to land based pollution. UNCLOS Article 194 (1), (2) and (3) address aspects of land based pollution, especially Article 194 (3), which requires state parties to minimize to the fullest possible extent "the release of toxic, harmful, or noxious substances, especially

13 This rule is also sometimes stated in Latin: sic tuo ut alienum non laeda (use your property so as not to injure that of others).

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those which are persistent, from land based sources." In addition, Article 207 of UNCLOS deals specifically with land based pollution, and Article 213 requires states to enforce the laws and regulations adopted under Article 207. But Article 194 (1) may contain a double standard in that it says that state parties must reduce pollution using "the best practicable means at their disposal and in accordance with their capabilities." Article 300 of UNCLOS creates an obligation not to exercise the rights they enjoy in a way that abuses those rights. But while the doctrine of abuse of rights may be an instrument to combat land based pollution, the precise criteria for the application of this doctrine remain obscure.

Third, non-binding instruments are a source of law concerning land based pollution. We have already seen that the Harm Prevention Principle, discussed above, was formulated as Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. What was Principle 2 1/2 is now, of course, customary international law. An important non-binding soft law document is the Montreal for the Protection of the Marine Environment against Pollution from Land-Based Sources (1985). The Montreal Guidelines stress the importance of "a comprehensive environmental management approach" (Guideline 10), and enumerate various measures, such as environmental impact assessment, monitoring, notification, information exchange and consultation, scientific and technical cooperation, assistance to developing countries, and the development of control strategies. The Montreal Guidelines also introduce the concept of specially protected marine areas. (Guideline 7). Another non-binding instrument is Agenda 21, Chapter 17 (1992), which requires states to take action at the national level as well as the regional and sub regional levels and take into account the Montreal Guidelines. Agenda 21 required the UNEP Governing Council to convene an intergovernmental meeting on the protection of the marine environment from land based activities. (Para. 17.26). At this meeting, which was held in Washington DC in 1995, two further non-binding instruments were adopted: (1) the WashingtonDeclaration on the Protection of the Marine Environment from Land-Based Activities and (2) the Global Programme of Action for the Protection of the Marine Environment from Land Based Activities. In 2001 a new Montreal Declaration on the Protection of the Marine Environment from Land Based Activities was approved.14 This document, which builds on the foregoing non-binding instruments, is reprinted in the Documentary Supplement.

It is evident that there are distinct limits to the global legal framework governing land based marine pollution. Not only is there no global treaty, there is a paucity of hard law, and soft law instruments lack specificity. The global legal framework is not adequate to deal with the geographical and ecological differences in the oceans of the world. The global framework also cannot deal with the great diversity of states in the world.

Most experts therefore advocate regional agreements to address problems of land based marine pollution.15 The extensive Regional Seas Programme spearheaded by UNEP consists of thirteen regional treaties covering many areas of the world.16 Protocols on land based pollution are in effect in the following ocean regions under the UNEP Regional Seas Programme: the Baltic Sea, the Black Sea, the Mediterranean Sea, the North-East Atlantic, the Kuwait region, the Southeast Pacific, and the Wider Caribbean Sea.

14 UNEP/GPA/GR/9.

15 E.g., Yoshifume Tanaka, Regulation of Land-Based Marine Pollution in International Law: A Comparative Analysis Between Global and Regional Legal Frameworks 66 ZaoRV 535, 549-50 (2006).

16 See http://www.unep.org/regionalseas/Programmes/default.asp.

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The OSPAR Convention deals with land based pollution in Annex I, which is very short:

ON THE PREVENTION AND ELIMINATION OF POLLUTION FROM LAND-BASED SOURCES

ARTICLE 1

1. When adopting programmes and measures for the purpose of this Annex the Contracting Parties shall require, either individually or jointly, the use of

- best available techniques for point sources- best environmental practice for point and diffuse sources

including, where appropriate, clean technology .

2. When setting priorities and in assessing the nature and extent of the programmes and measures and their time scales, the Contracting Parties shall use the criteria given in Appendix 2.

3. The Contracting Parties shall take preventive measures to minimise the risk of pollution caused by accidents.

4. When adopting programmes and measures in relation to radioactive substances, including waste, the Contracting Parties shall also take account of:

(a) the recommendations of the other appropriate international organisations and agencies;(b) the monitoring procedures recommended by these international organisations and agencies.

ARTICLE 2

1. Point source discharges to the maritime area, and releases into water or air which reach and may affect the maritime area, shall be strictly subject to authorisation or regulation by the competent authorities of the Contracting Parties. Such authorisation or regulation shall, in particular, implement relevant decisions of the Commission which bind the relevant Contracting Party.

2. The Contracting Parties shall provide for a system of regular monitoring and inspection by their competent authorities to assess compliance with authorisations and regulations of releases into water or air.

ARTICLE 3

For the purposes of this Annex, it shall, inter alia, be the duty of the Commission to draw up:

(a) plans for the reduction and phasing out of substances that are toxic, persistent and liable to bioaccumulate arising from land-based sources;

(b) when appropriate, programmes and measures for the reduction of inputs of nutrients from urban, municipal, industrial, agricultural and other sources.

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The details of controls on land-based pollution are handled by the OSPAR Commission, which has the authority to take Decisions and to make Recommendations to the state parties. A Decision must be adopted by at least three-fourths of the parties and is binding on the states that voted for it, whileRecommendations have no binding force. OSPAR Convention, Article 13.

The OSPAR Convention specifically adopts the precautionary principle as well as the polluter pays principle in Article 2.

Is the OSPAR Convention a good model for the creation of an international legal regime to deal with land based pollution? OSPAR appears to be an excellent model, but as the following case suggests, some controversies arise which pose difficult issues even between developed states with friendly diplomatic relations. The MOX Plant Dispute between Ireland and the United Kingdom went to arbitration under the OSPAR Convention and was litigated in the ITLOS under UNCLOS. Note that in the ITLOS opinion we reprint below, the court made no mention of the precautionary principle. This was apparently because, although the precautionary principle is specifically included in the OSPAR Convention, it is not mentioned in UNCLOS. One of the ITLOS judges, Rudiger Wolfrum, in an omitted separate opinion in the MOX Plant Case, stated that: "it is still a matter of discussion whether the precautionary principle or the precautionary approach in international environmental law has become part of international customary law." MOX Plant Case, ITLOS Order on Request for Preliminary Measures, 41 ILM 415, 428-29 (2002). Do you agree? Why didn't ITLOS apply the precautionary principle since it is explicitly part of the OSPAR Convention?

THE MOX PlANT DISPUTE (IRELAND v. UNITED KINGDOM)

The UK's Sellafield Mixed Oxide (MOX) nuclear recycling plant on the Irish Sea coast provoked a dispute between Ireland and the UK over radioactive emissions that Ireland contended caused elevated radioactivity in shellfish and finfish endangering human health. The UK rejoined that the small levels of radiation were not dangerous.

In 2001, Ireland commenced two proceedings against the UK: (1) an international arbitration proceeding under the 1992 Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR); and (2) a proceeding against the UK in the International Tribunal for the Law of the Sea.

In the OSPAR case Ireland charged that the UK was in breach of Article 9 of the OSPAR Convention by refusing to make available two reports concerning the Sell afield MOX plant.

Ireland's case before the ITLOS concerned the U K's failure to carry out a proper assessment of the potential effects of Sellafield on the marine environment as required by UNCLOS Art. 206; a failure to cooperate as required by UNCLOS Arts. 123 and 197; and a failure to take all steps necessary to protect the marine environment as required by UNCLOS Arts. 192-94, 207, 211, 213, and 217.

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

6 December 2001

Case No. 10

THE MOX PLANT CASE

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(IRELAND V. UNITED KINGDOM)

Request for provisional measures

Present: President CHANDRASEKHARA RAO; Vice-President NELSON; Judges CAMINOS, MAROTTA RANGEL, YANKOV, YAMAMOTO, KOLODKIN, PARK BAMELA ENGO, MENSAH, AKL. ANDERSON, VUKAS, WOLFRUM, TREVES, MARSIT, EIRIKSSON, NDIAYE, JESUS, XU; Judge ad hoc SZEKELY; Registrar GAUTIER.

THE TRIBUNAL,

composed as above,

after deliberation,

Having regard to article 29- of the united Nations Convention on the Law of the Sea (heareinafter “the Convention”) and articles 21, 25 and 27 of the Statute of the Tribunal (hereinafter “the Statute”),

Having regard to articles 89 and 90 of the Rules of the Tribunal (hereinafter “the Rules”),

Having regard to the fact that Ireland and the United Kingdom of Great Britain and Northern Ireland (hereinafter “the United Kingdom”) have not accepted the same procedure for the settlement of disputes in accordance with article 287 of the Convention and are therefore deemed to have accepted arbitration in accordance with Annex VII to the Convention,

Having regard to the Notification and Statement of Claim submitted by Ireland to the United Kingdom on 25 October 2001 instituting arbitral proceedings as provided for in Annex VII to the Convention "in the dispute concerning the MOX plant, international movements of radioactive materials, and the protection of the marine environment of the Irish Sea",

Having regard to the Request for provisional measures submitted by Ireland to the United Kingdom on 25 October 2001 pending the constitution of an arbitral tribunal under Annex VII to the Convention,

Having regard to the Request submitted by Ireland to the Tribunal on 9 November 2001 for the prescription of provisional measures by the Tribunal in accordance with article 290, paragraph 5, of the Convention,

Makes the following Order:

Whereas Ireland and the United Kingdom are States Parties to the Convention;

Whereas, on 9 November 2001, Ireland filed with the Registry of the Tribunal by facsimile a Request for the prescription of provisional measures under article 290, paragraph 5, of the Convention "in the dispute concerning the MOX plant, international movements of radioactive materials, and the protection of the marine environment of the Irish Sea" between Ireland and the United Kingdom;

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Whereas. in the Notification and Statement of Claim of 25 October 2001. Ireland requested the arbitral tribunal to be constituted under Annex VII (hereinafter "the Annex VII arbitral tribunal") to adjudge and declare:

1. That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant, including by failing to take the necessary measures to prevent, reduce and control pollution of the marine environment of the Irish Sea from (1) intended discharges of radioactive materials and or wastes from the MOX plant, and/or (2) accidental releases of radioactive materials and/or wastes from the MOX plant and/or international movements associated the MOX plant, and/or (3) releases of radioactive materials and/or wastes from the MOX plant and/or international movements associated the MOX plant with the of resulting from terrorist act;

2. That the United Kingdom has breached its obligations under Articles 192 and 193 and/or Article 194 and/or Article 207 and/or Articles 211 and 213 of UNCLOS in relation to the authorisation of the MOX plant by failing (1) properly or at all to assess the risk of terrorist attack on the MOX plant and international movements of radioactive material associated with the plant, and/or (2) properly or at all to prepare a comprehensive response strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and international movements of radioactive waste associated with the plant;

3. That the United Kingdom has breached its obligations under Articles 123 and 197 of UNCLOS in relation to the authorisation of the MOX plant, and has failed to cooperate with Ireland in the protection of the marine environment of the Irish Sea inter alia by refusing to share information with Ireland and/or refusing to carry out a proper environmental assessment of the impacts on the marine environment of the MOX plant and associated activities and/or proceeding to authorise the operation of the MOX plant whilst proceedings relating to the settlement of a dispute on access to information were still pending;

4. That the United Kingdom has breached its obligations under Article 206 of UNCLOS in relation to the authorisation of the MOX plant, including by

(a) failing, by its 1993 Environmental Statement, properly and fully to assess the potential effects of the operation of the MOX plant on the marine environment of the Irish Sea; and/or

(b) failing, since the publication of its 1993 Environmental Statement, to assess the potential effects of the operation of the MOX plant on the marine environment by reference to the factual and legal developments which have arisen since 1993, and in particular since 1998; and/or

(c) failing to assess the potential effects on the marine environment of the Irish Sea of international movements of radioactive materials to be transported to and from the MOX plant; and /or

(d) failing to assess the risk of potential effects on the marine environement of the Irish Sea arising from terrorist act or acts on the MOX plant and/or on international movements of radioactive material to and from the MOX plant.

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5. That the United Kingdom shall refrain from authorizing or failing to prevent (a) the operation of the MOX plant and/or (b) international movements of radioactive materials into and out of the United Kingdom related to the operation of the MOX Plant or an preparatory or other activities associated with the operation of the MOX until such time as (1) there has been carried out a proper assessment of the environmental impact of the operation of the MOX plant as well as related international movements of radioactive materials, and (2) it is demonstrated that the operation of the MOX plant and related international movements of radioactive materials will result in the deliberate discharge of no radioactive materials, including wastes, directly or indirectly into the marine environment of the Irish Sea, and (3) there has been agreed and adopted jointly with Ireland an comprehensive strategy or plan to prevent, contain and respond to terrorist attack on the MOX plant and international movements of radioactive waste associated with the plant;

29. Whereas Ireland, in its final submissions at the public sitting held on 20 November 2001, requested the prescription by the Tribunal of the following provisional measures:

(1) that the United Kingdom immediately suspend the authorisation of the MOX plant dated 3 October, 2001, alternatively take such other measures as are necessary to prevent with immediate effect the operation of the MOX plant;

(2) that the United Kingdom immediately ensure that there are no movements into or out of the waters over which it has sovereignty or exercises sovereign rights of any radioactive substances or materials or wastes which are associated with the operation of: or activities preparatory to the operation f, the MOX plant;

(3) that the United Kingdom ensure that no action of any kind is taken which might aggravate, extend or render more difficult of solution the dispute submitted to the Annex VII tribunal (Ireland hereby agreeing itself to act so as not to aggravate, extend or render more difficult of solution that dispute); and

(4) that the United Kingdom ensure that no action is taken which might prejudice the rights of Ireland in respect of the carrying out of any decision on the merits that the Annex VII tribunal may render (Ireland likewise will take no action of that kind in relation to the United Kingdom);

34. Considering that article 290, paragraph 5, of the Convention provides in the relevant part that:

Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement w ithin two weeks tram the date of the request for provisional measures, the International Tribunal for the Law of the Sea . . . may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires;

35. Considering that, before prescribing provisional measures under article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the Annex VII arbitral tribunal would have jurisdiction;

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36. Considering that Ireland maintains that the dispute with the United Kingdom concerns the interpretation and application of certain provisions of the Convention, including, in particular, articles 123, 192 to 194, 197, 206, 207, 211, 212 and 213 thereof;

37. Considering that Ireland has invoked as the basis of jurisdiction of the Annex VII arbitral tribunal article 288, paragraph 1, of the Convention which reads as follows: A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part;

38. Considering that the United Kingdom maintains that Ireland is precluded from having recourse to the Annex VII arbitral tribunal in view of article 282 of the Convention which reads as follows:

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree;

39. Considering that the United Kingdom maintains that the matters of which Ireland complains are governed by regional agreements providing for alternative and binding means of resolving disputes and have actually been submitted to such alternative tribunals, or are about to be submitted;

40. Considering that the United Kingdom referred to the fact that Ireland has under article 32 of the 1992 Convention for the Protection of the Marine Environment of the NorthEast Atlantic (hereinafter "the OSPAR Convention") submitted a dispute between Ireland and the United Kingdom "concerning access to information under article 9 of the OSPAR Convention in relation to the economic 'justiticntion' of the proposed MOX plant" to an arbitral tribunal (hereinafter "the OSPAR arbitral tribunal");

41. Considering that the United Kingdom has further stated that certain aspects of the complaints of Ireland are governed by the Treaty establishing the European Community (hereinafter "the EC Treaty") or the Treaty establishing the European Atomic Energy Community (hereinafter "the Euratom Treaty") and the Directives issued thereunder and that States Parties to those Treaties have agreed to invest the Court of Justice of the European Communities with exclusive jurisdiction to resolve disputes between them concerning alleged failures to comply with such Treaties and Directives;

42. Considering that the United Kingdom has also stated that Ireland has made public its intention of initiating separate proceedings in respect of the United Kingdom's alleged breach of obligations arising under the EC Treaty and the Euratom Treaty;

43. Considering that the United Kingdom maintains that the main elements of the dispute submitted to the Annex VII arbitral tribunal are governed by the compulsory dispute settlement procedures of the OSPAR Convention or the EC Treaty or the Euratom Treaty;

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44. Considering that, for the above reasons, the United Kingdom maintains that the Annex VII arbitral tribunal would not have jurisdiction and that, consequently, the Tribunal is not competent to prescribe provisional measures under article 290, paragraph 5, of the Convention;

45. Considering that Ireland contends that the dispute concerns the interpretation or application of the Convention and does not concern the interpretation or application of either the OSPAR Convention or the EC Treaty or the Euratom Treaty;

46. Considering that Ireland further states that neither the OSPAR arbitral tribunal nor the Court of Justice of the European Communities would have jurisdiction that extends to all of the matters in the dispute before the Annex VII arbitral tribunal;

47. Considering that Ireland further maintains that the rights and duties under the Convention, the OSPAR Convention, the EC Treaty and the Euratom Treaty are cumulative and, as a State Party to all of them, it may rely on any or all of them as it chooses;

48. Considering that, in the view of the Tribunal, article 282 of the Convention is concerned with general, regional or bilateral agreements which provide for the settlement of disputes concerning what the Convention refers to as "the interpretation or application of this Convention";

49. Considering that the dispute settlement procedures under the OSPAR Convention, the EC Treaty and the Euratom Treaty deal with disputes concerning the interpretation or application of those agreements, and not with disputes arising under the Convention;

50. Considering that, even if the OSPAR Convention, the EC Treaty and the Euratom Treaty contain rights or obligations similar to or identical with the rights or obligations set out in the convention, the rights and obligations under those agreements have a separate existence from those under the Convention;

51. Considering also that the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux preparatoires;

52. Considering that the Tribunal is of the opinion that, since the dispute before the Annex VII arbitral tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispute;

53. Considering that, for the reasons given above, the Tribunal considers that, for the purpose of determining whether the Annex VII arbitral tribunal would have prima facie jurisdiction, article 282 of the Convention is not applicable to the dispute submitted to the Annex VH arbitral tribunal;

54. Considering that the United Kingdom contends that the requirements of article 283 of the Convention have not been satisfied since, in its view, there has been no exchange of views regarding the settlement of the dispute by negotiation or other peaceful means;

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55. Considering that article 283 of the Convention reads as follows:

1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement;

89. For these reasons,

THE TRIBUNAL

1. Unanimously,

Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measure under article 290 paragraph 5, of the Convention:

Ireland and the United Kingdom shall cooperate and shall for this purpose, enter into consultations forthwith in order to:

(a) exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant;

(b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea;

(c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.

2. Unanimously,

Decides that Ireland and the United Kingdom shall each submit the initial report referred to in article 95, paragraph 1, of the Rules not later than 17 December 2001, and authorizes the President of the Tribunal to request such further reports and information as he may consider appropriate after that date.

3. Unanimously,

Decides that each party shall bear its own costs.

Done in English and in French, both texts being authoritative, in the Free and Hanseatic City of Hamburg, this third day of December, two thousand and one, in three copies, one of which will be placed in the archives of the Tribunal and the others transmitted to the Government of Ireland and the government of the United Kingdom, respectively.

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(Signed) P. Chandrasekhara RaoPresident.

(Signed) Philippe Gautier,Registrar.

Judges CAMINOS, YAMAMOTO PARK, AKL, MARSIT, EIRIKKSSON and JESUS append a joint declaration to the Order of the Tribunal.

Vice-President NELSON, Judges MENSAH, ANDERSON, WOLFRUM, TREVES, JESUS and Judge ad hoc SZEKELY append separate opinions to the Order of the Tribunal.

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NOTES AND QUESTIONS

1. The OSPAR Convention. The Arbitration Tribunal17 convened under the OSPAR Convention ruled that it had jurisdiction over the dispute between Ireland and the United Kingdom, but the majority held that Ireland's claim for information did not fall within Article 9(2) of the OSPAR Convention, which requires disclosure of "any available information ... on the state of the maritime area, on activities or measures adversely affecting or likely to affect it, and on activities or measures introduced in accordance with the Convention." Ireland sought information on the environmental impact of the operation of the plant, while the UK disclosed only information on the discharge of radioactive materials into the Irish Sea. The majority of the arbitrators ruled that the UK's rejection of Ireland's information request did not violate the requirements of OSPAR Convention Article 9. Do you agree? In a dissenting opinion, one of the arbitrators, Gavan Griffith, found that the precautionary principle applied to this dispute, shifting the burden of proof to the U K. The majority disagreed with this approach.

2. European Union (EU) law. The MOX Plant dispute ended when the Commission of the EuropeanUnion filed suit against Ireland in the European Court of Justice (ECJ), and the ECJ ruled thatIreland, by bringing proceedings against the UK within the framework of the international law of the sea, was in breach of Article 292 of the European Community (EC) Treaty (now Article 344 of the Treaty on the Functioning of the European Union), under which "Member States [of the EU] undertake not to submit a dispute concerning the interpretatio nor application of the EC Treaty to any method of settlement other than those provided for therein." Case C-459/03 Commission of the European Communities v. Ireland, Judgment of the Court (Grand Chamber) of 30 May, 2006, (2006) ECR 1-4635, reprinted 45 ILM 1051 (2006). The ECJ reasoned that UNCLOS is a classic "mixed" international agreement under EU law, in that it concerns matters within the competence of the EU, such as fisheries, as well as matters, such as maritime boundary delimitation, that are within the competence of the EU Member States. Both the EU18 and the EU Member States have acceded to the UNCLOS, and, although competence over the marine environment is shared under EU law, the EU has exclusive jurisdiction under EC Treaty Article 292 over disputes concerning UNCLOS between Member States.Is the ECJ's ruling consistent with UNCLOS Article 282? Is the EO's ruling inconsistent with the ruling of the ITLOS?

3. After the ECJ Judgment, the arbitral proceeding that Ireland instituted against the UK under UNCLOS Article 287 and Art. 1 of Annex VII in the Permanent Court of Arbitration in the Hague was terminated at Ireland's request. See MOX Plant Arbitral Tribunal Order No. 6 of 6 June 2008.

17 MOX Plant Case (Ireland v. United Kingdom), OSPAR Arbitration, 42 ILM 1118 (2003).

18 Council Decision 98/392/EC, invoking as authority EC Treaty Art. 175(1).

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PROBLEM 7-4

NON-POINT POLLUTION IN THE SOUTH CHINA SEA

In an effort to increase food production to feed its growing population and encourage economic development, China has promoted the massive use of fertilizers and pesticides in its agricultural sector. Some of the pesticides contain significant quantities of mercury. China also continues to rely on traditional tilling of the soil prior to planting. Soil tilling increases both the quantity of agricultural runoff from rain and irrigation that drains into rivers that discharge into the sea. This Chinese policy has produced a massive increase in chemical pollution of the South China Sea. The South China Sea is a Semi- Enclosed Sea. No area within that sea is beyond 200-nautical-miles from the coastline of one of the littoral states. These chemicals cause damage to the living resources of that sea. Philippine fishermen who fish in the South China Sea within 200-nautical-miles of the Philippines coastline report a substantial decrease in fish stocks. Of those that remain, many show deformities that are caused by the mercury in pesticides, which only China uses for its agriculture in the region. The run off deposits these pesticides into the South China Sea. The decrease in fish stocks in the South China Sea is also believed to be a result of the pesticide run off from China. The Philippines wants to do something about this situation. The damage to the stock of fish has caused economic hardship to its fishermen and to its economy. Both China and the Philippines are parties to the 1982 Law of the Sea Convention. Neither state is a party to a treaty that bans the use of these chemicals (including mercury) in agriculture or bans their deposit through land-based sources into the marine environment.

If China were to eliminate the use o f mercury in its pesticides, it would probably suffer a ten percent drop in its agricultural output. This would cause food shortages and, perhaps, some starvation. China could use other pesticides that would be equally effective but it would take about five years to develop the manufacturing capabilities. Those pesticides would be more expensive to use, in addition to the cost of the construction of the necessary facilities and of training persons to use those pesticides. To do this, China would have to divert substantial funds from other sectors of its economy, causing losses in jobs and productivity or a decline in its military. China refuses to do this.

The Philippines and China have agreed to discuss the situation with the assistance of an ambassador from Indonesia. In the course of those discussions, questions regarding the legal situation have arisen and the disputants have agreed to present their views on the subject. In particular two questions are to be addressed. They are as follows:

1. Has China violated its obligations under public international law regarding its agricultural policies?

2. What remedies are available to the Philippines if it were to decide to pursue the matter? What defenses might China have to such measures?

Students may be selected to represent China and the Philippines in this matter.

For further study see, Daud Hassan, International Conventions Relating to Land-Based Sources of Marine Pollution Control: Applications and Shortcomings, 16 GEO. INT'L ENVTL L. REV. 657 (2004); Comment, Developments in LandBased Pollution: From Sewer to Shining Sea, 2003 Y.B. CoLO J. INT'L ENVTL. L.& PoL'Y 61 (2003).

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NOTES AND QUESTIONS

1. Jurisdiction. Considering the Part XV of UNCLOS and the MOX Plant Dispute, is there a possible dispute settlement forum available so that China will have to submit to compulsory dispute settlement in this case?

2. UNCLOS norms. Consider the provisions of UNCLOS Part XII . This is the substantive international law that applies to China's polluting activities in the South China Sea. What provisions of Part XII are applicable? Consider in particular Articles 194 (1) (2)(3) and (5) ; 195; 204, 205, 206, 207, 212, 213, 235, and 237.

3. State responsibility. May the Philippines successfully invoke international law principles of state responsibility against China? Do the International Law Commission's (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), approved by UN General Assembly Resolution 56/83, apply? In chapter 3 of this book we learned that the ILC's Draft Articles state secondary rules designed to apply to all kinds of international obligations regardless of their source, but these Articles must be read in association with primary, substantive Jaw standards. I n this case the primary standards are supplied by UNCLOS Part XII. Are these substantive standards sufficient to charge China committing internationally wrongful acts?

4. Customary international law. Will the Philippines successfully invoke customary international law principles against China that create liability for transboundary pollution? Consider the material covered in chapters 2 and 3 of this book, in particular:

The Trail Smelter Case

Principle 21 of the Stockholm Declaration repeated by Principle 2 of the Rio Declaration. Principle 21/2 was declared to be a rule of customary international law by the International Court of Justice in the Nuclear Weapons Advisory Opinion [1996] ICJ Rep. 226 (29), and this conclusion was reaffirmed by the Court in the Gabcikovo-Nagymaros Project Case, [1997] ICJ Rep. 7 (53). Principle 21/2 extends the ruling of the Trail Smelter Case to include areas beyond national jurisdiction.

Is the now discredited ILC Draft Articles on International Liability for Acts Not Prohibited by International Law ( 1996) helpful?

Consider also Sections 601 and 602 of the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1986).

Consider the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001). These Draft Articles require an equitable balancing of interests (see Articles 9 and 10). Is this helpful? Is balancing of interests a good idea when it comes to preventing harm from discharges of toxic substances such as mercury?

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Consider also the ILC Draft Principles on International Liability in Cases of Loss from Transboundary Harm Arising out of Hazardous Activities (2006).

5. Remedies. Suppose China were adjudged to have violated its international law obligations; what remedies should be imposed? What remedies are appropriate under international law?

6. A global treaty on land-based marine pollution. About 80 percent of marine pollution ultimately has its source on land. Is a global treaty that specifica lly addresses land-based marine pollution the answer? Such a treaty has been proposed: see David Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Burlington, VT: Ashgate Press, 2006).

7. The United Nations Environmental Programme (UNEP) Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA). UNEP has developed a strategy for combating land-based marine pollution on a global scale. See UNEP, The Other 70%: UNEP Marine and Coastal Strategy (Nairobi: UNEP, 2011). This UNEP initiative began in 1995 with the UNEP Washington Declaration on Protection of the Marine Environment from Land Based Activities, which is reprinted in the Documentary Supplement. The Washington Declaration states, as a "common goal" ... "effective action to deal with all land-based impacts on the marine environment." (para. 1). This document also calls for a "Global Programme of Action, a global, legally binding instrument for the reduction and/or elimination of emissions, discharges and, where appropriate, the elimination of the manufacture and use of the persistent organic pollutants identified in decision 18/32 of the Governing Council of the United Nations Environment Programme." (para. 17). To this end, UNEP adopted the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (1995). The GPA recommends that states identify and assess particular problems of land-based marine pollution; establish priorities for action; set management objectives; identify, evaluate and select strategies and measures to achieve these objectives; and develop criteria for evaluating the effectiveness of strategies and measures. For information on the GPA, see http://www.gpa.un ep.org. The GPA relies upon national governments to take action to achieve and enforce standards to reduce land-based marine pollution. UNEP holds periodic meetings to review progress in implementing the GPA. Meetings were held in Montreal in 2001; in Beijing in 2006; and in Manila in 2012. See UNEP, Review of Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities at the International, Regional, and National Levels, UNEP/GPA/IGR.3/2 (9 November 2011). This review states that "Many Governments have integrated the Programme across sectors and ministries and in national budgets." But the review adds that "much remains to be done." (para .l). UNEP's strategy is to implement the GPA through national programmes of action adopted by states. To this end, the UNEP offers technical assistance, capacity building, and training of personnel.

8. Regional seas programmes. A key element of the GPA is to encourage the development of regional seas programmes to combat land-based marine pollution. There is no regional seas programme for the South China Sea. Would the establishment of such a program be beneficial? The two most advanced regional seas programmes are OSPAR, which covers the north-east Atlantic Ocean, and the Mediterranean programme established by the Convention for theProtection of the Marine Environment and the Coastal Region of the Mediterranean. OSPAR includes, as we have seen, Annex I-Prevention and elimination of pollution from land-based sources. The OSPAR Commission has authority to issue Decisions and Recommendations to implement this Annex. The Mediterranean regional seas programme was originally instituted by

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the Barcelona Convention of 1976 and was amended as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona, 1995, entry into force 2004). The 1995 Barcelona Convention, which is reprinted in the Documentary Supplement, includes a Protocol for the protection of the Mediterranean Sea against pollution from land-based sources; a Protocol concerning specially protected areas and biological diversity in the Mediterranean; and a Protocol on Integrated Coastal Zone Management in the Mediterranean. The Barcelona Convention is implemented by both the contracting parties and the European Union, which is also a party, as well as by national governments.

9. Non-point marine pollution. The problem of non-point pollution is not well-addressed even by the domestic laws of important states. In the United States the Clean Water Act sections 208 and 319 (33 USC sees. 1288 and 1329) address non-point pollution. Section 2008 directs the states to identify areas with substantial water quality control problems and to develop plans to correct the situation. In 1987, Congress enacted section 319 of the Clean Water Act, which requires states to compile new lists of waters impaired by non-point pollution and to develop new control programs on a watershed basis. Thus, the US Environmental Protection Agency leaves non-point pollution control to each individual state, and the section 208 and 319 programs have done little to solve the problem. In the late 1990s, the EPA started a controversial new initiative to combat non-point pollution: using its authority under Clean Water Act section 303 (33 USC sec. 1313), the EPA required states to establish "total maximum daily loads" (TMDL) for waters within their boundaries for which the effluent limitations established under the Clean Water Act section 301 (33 USC sec. 1311) are insufficient to meet the water quality standards applicable to such waters. The EPA has also established a TMDL-like program for toxic pollutants such as mercury under Clean Water Act, 33 USC sec. 1314(1). But these programs have not been fully implemented by most states.19

If land-based non-point pollution controls are inadequate even in the United States, is there hope for an international law solution to such problems?

19 See Holly Doremus et al, Environmental Policy Law, 5th ed. 808-09 (New York: Thomson/ Foundation Press, 2008).

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SECTION IV. Protection of the Environment of the "Area"

The mineral riches of the sea bed were discovered during the epic voyage of the HMS Challenger in 1872-76. The Challenger's dredge hauls recovered black polymetallic nodules as well as crusts of ferromanganese materials. At present three main mineral resources are known to exist on the sea bed and its subsoil---(1) polymetallic nodules, (2) cobalt-rich ferromanganese crusts, and (3) polymetallic sulphides.

The metals contained in deep seabed polymetallic nodules come from erosion of rocks on land which are transported into the oceans by rivers and subsequently are deposited on the ocean floor. Polymetallic nodules collect on the ocean floor in a single layer; they contain various minerals, among which are nickel, manganese, cobalt, copper and small amounts of molybdenum, vanadium, titanium and the rare earths. Cobalt-rich ferromanganese crusts, which are present at lesser depths than the polymetallic nodules, are a marine mineral resource that is the result of millions of years of precipitation of substances from seawater on the submerged flanks of inactive underwater volcanoes. These deposits occur throughout the world's oceans; they are potential resources for the recovery of cobalt, titanium, cerium, nickel, platinum, manganese, thallium and tellurium. Polymetallic sulphides result from actions near plate boundaries submerged on the ocean floor. Along such plate boundaries cold, heavy seawater comes into contact with hot, molten rocks on the ocean floor. When this occurs, the seawater is heated and expands, rising rapidly dissolving and transporting metals from the surrounding rock. The dissolved metals react with sulphur in seawater, producing a precipitate of polymetallic sulphides known as " black smokers" because they resemble black smoke rising from factory smoke stacks. These polymetallicsulphides contain copper, iron, zinc, silver, gold and other metals in varying amounts. These deposits occur at areas about the size of a football field wherever hot springs discharge from the sea floor.

The international legal regime that governs sea bed mining is contained in Part XI of the UNCLOS, Articles 133 to 191. In addition, Annex III of UNCLOS contains the Basic Conditions of Prospecting, Exploration and Exploitation in the Area. See also Section 4, Articles 35 to 40 of UNCLOS Annex IV, the Statute of the International Tribunal for the Law of the Sea. These articles create a special Seabed Disputes Chamber of ITLOS for the purpose of resolving disputes arising under the international seabed mining regime. (See UNCLOS Articles 187 to 191).

Read over the provisions of UNCLOS Part XI. In the aftermath of the signing of UNCLOS in 1982, the United States and several industrialized nations announced that they would not ratify UNCLOS because of certain provisions of Part XI.

Can you identify these problem provisions?

In 1994, consultations under the auspices of the U.N. Secretary-General produced a modification of UNCLOS Part XI designed to placate the concerns of developed states concerning the sea bed mining regime. This document---the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, S. Treaty Doc. No. 103-39 ( 1994)---is reprinted in the Documentary Supplement. How does this document address the following problems with regard to the original Part XI:

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1. Policy- making in the Seabed Authority would be carried out by a one-nation, one-vote Assembly.

2. Decision making in the Council may be carried out without input from the United States or developed state-parties.

3. There is insufficient oversight of decisions involving major financial and budgetary implications.

4. Sea bed mining will be carried out without observing market principles because Part XI permits production controls and subsidies as well as potential discriminatory treatment of mining entities.

5. Part XI mandates forced technology transfer.

6. Part XI entails possible discrimination against qualified mining applicants.

7. Part XI creates discrimination in favor of the Enterprise, the operation mining arm of the International Seabed Authority.

8. Part XI would impose undue financial and regulatory burdens on industrialized countries and private mining entities.

9. Part XI creates a system of unequal sharing of revenues from mining.

10. Under Part XI a review conference would have the power to impose treaty amendments on the United States and other nations without their consent;

Are these concerns ameliorated by the 1994 Agreement?

At the heart of the international seabed mining regime is the International Sea bed Authority (ISA), which is located in Kingston, Jamaica. (See UNCLOS Articles 156 to 158). The ISA is an autonomous international organization established to organize and control all mineral development activities in the Area, defined in UNCLOS Article 1 (1) as the seabed, the ocean floor and subsoil beyond the limits of national jurisdiction, the geographical area underlying most of the world's oceans. The tasks of the ISA are set out in UNCLOS Part XI. Note that Article 136 of UNCLOS states that the resources of the Area are the common heritage of mankind, which means that they are vested in mankind as a whole, on whose behalf the ISA is empowered to act. The ISA has four main functions:

To administer the mineral resources of the Area;

To adopt rules, regulations and procedures for the conduct of mining activitiesprospecting, exploration and exploitation---of the Area;

To promote marine scientific research in the Area (to this end the ISA administers an International Seabed Authority Endowment Fund); and

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To protect and conserve the natural resources of the area, and to prevent damage to the flora and fauna of the marine environment.

The principal organs of the ISA are an Assembly, a Council, and a Secretariat, headed by a Secretary-General. Under UNCLOS Article 163, the ISA was to have two subsidiary organs, an Economic Planning Commission and a Legal and Technical Commission. At present the function of the former Commission are being handled by the legal and Technical Commission. In addition, the 1994 Agreement established a Finance Committee in the ISA.

The Assembly is the supreme organ of the ISA; it meets annually and in such special sessions as may be called by the Assembly. (UNCLOS, Article 159-160). Each member of the Assembly has one vote, and decisions are taken by consensus, but in the absence of consensus, decisions on matters of substance may be taken by two-thirds vote. The powers and functions of the Assembly are set out in UNCLOS Article 160.

The Council is the executive organ of the ISA (UNCLOS Articles 161-165). The Council initiates policies with respect to seabed mining and both promotes and regulates exploration and exploitation of seabed resources. The Council's task is to approve contract applications, draw up contracts, oversee their implementation, and to establish environmental and other regulatory standards. The Council is adopting a Mining Code that will provide a comprehensive regulatory regime for seabed mining. Key provisions of the ongoing Mining Code include a Regulation on Prospecting and Exploration for Polymetallic Nodules in the Area (13 J uly 2000); a Regulation on Prospecting and Exploration for Polymetallic Sulphides in the Area (7 May 2010); and a Regulation on Prospecting and Exploration for Cobalt-Rich Crusts in the Area (27 July 2012). The entire Mining Code may be found at http://www.isa.org/j m/en/mcode. The Council will have additional responsibilities once sea bed mining exploitation commences. The Council will oversee compliance with mining regulations and will monitor the economic effects of sea bed production. The Council will also issue directives to the Enterprise and will establish a staff of inspectors to check compliance with regulations.

The Council consists of 36 members of the JSA elected by the Assembly organized into five chambers as follows:

Four states that are major consumers of seabed minerals including the state having the largest economy;

Four states with the largest investment in seabed activities;

Six developing countries with special interests (land-locked states; major importer states );

Four states among parties that are major exporters of seabed minerals; and

Eighteen members elected to ensure overall geographical balance.

So far the Council has taken all major decisions by consensus. If voting is necessary, procedural votes may be taken by simple majority, while decisions of substance require either a two-thirds or three-fourths majority vote.

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A major feature of UNCLOS Part XI is the creation of the Enterprise (Artide 1 70} as the operational mining entity of the ISA. Under UNCLOS Article 153, the Enterprise has the capacity to carry out mining activities as well as the transporting, processing and marketing of minerals recovered from the Area. The Statute of the Enterprise is contained in Annex IV of UNCLOS, Articles 1-13.

The regime for sea bed mining as specified in UNCLOS Article 153 is a so-called parallel system which involves either a state-owned mining company or a state-sponsored private natural or juridical person, on the one hand; and the Enterprise on the other. Each application by an entity operated or sponsored by a state party must designate a section of the Area large enough to accommodate two mining operations of approximately equal commercial value. If the application is approved, the ISA allocates one part to the applicant and the other part is designated as a reserved area, a site banking scheme to reserve areas for the future conduct of mining by the Enterprise.

At this writing the ISA has entered into 15 year exploration contracts with 13 contractors, either state-owned companies or state-sponsored contractors; another four contracts are in process. No production of seabed minerals has actually occurred under the ISA regime.

The United States is the only major industrial country that has not ratified UNCLOS. The U.S. has promulgated an alternative national legal regime for the mining of seabed minerals, the Deep Sea bed Hard Mineral Resources Act, 30 USC sees. 1401 et seq. This act is implemented by regulations issued by the US Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), 15 CFR Part 970. NOAA has issued several exploration licenses to companies under this regulatory regime.

Suppose you are the CEO of a company interested in conducting sea bed mining. Which regime would you apply to, the ISA or the US?

PROBLEM 7-5

Mining the Riches of the Sea

The ABC Nautilus Mining Company is a Canadian corporation with long experience mining and processing minerals in mountain areas of North America. ABC has contacted the government of Cook Islands in the South Pacific about sponsoring ABC to carry out prospecting and exploration activities in the sea bed and subsoil of the South Pacific Ocean. ABC has obtained information that an area of about 100 square kilometers ranging from 150 to 300 kilometers off the coast of the northern Cook Islands would be an ideal area to mine polymetallic nodules and polymetallic sulphides. ABC, after exploration, may exploit this area using unmanned remote cutting machines which can be operated from a surface shi p. The ore that is removed will then be conveyed to the surface by a continuous line bucket system to a processing ship which will separate the ore from valuable minerals. The rock resulting from the separation process will then be dumped back into the sea. Scientists and experts with whom ABC has consulted have stated that this mining process is safe and will have little impact on the environment. There may be some temporary disruption of the benthic layer and the undersea ecosystem and some temporary pollution resulting from an increase in the turbidity and toxicity of the water column above the mining site, but considering that the site is in the middle of the ocean far from inhabited lands and in deep waters, the impact on the marine environment will be limited and not long-lasting. ABC sees no need to use cleaner technology such as enclosed cutting tools and hydraulic suction casing to convey the ores to the surface. ABC also sees no need to replace the spent rock more carefully on the sea floor instead of jettisoning it overboard.

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The government of Cook Islands has no experience is administering seabed mining ventures and is leaving the legality of this operation up to the experts of the ISA. The CEO of ABC has told the Prime Minister of Cook Islands that there is no need for him to introduce legislation or administrative regulations to govern the exploration or mining activities as everything can be covered by contract. The CEO of ABC has also stated that there is no danger of extraordinary liability on the part of Cook Islands under international law. The worst-case accident that may occur is a ship collision or fire aboard one of ABC’s vessels. ABC will have insurance to cover such a casualty so Cook Islands should not worry; any such casualty will also be far from any inhabited area so there is no chance of damages.

Under the ISA 's standard contract provisions, the contract with ABC will contain the following provisions:

Section 15

Safety, labour and health standards

15.1 The Contractor shall comply with the generally accepted international rules and standards established by competent international organizations or general diplomatic conferences concerning the safety of life at sea, and the prevention of collisions and such rules, regulations and procedures as may be adopted by the Authority relating to safety at sea. Each vessel used for carrying out activities in the Area shall possess current valid certificates required by and issued pursuant to such international rules and standards.

15.2 The Contractor shall, in carrying out exploration under this contract, observe and comply with such rules, regulations and procedures as may be adopted by the Authority relating to protection against discrimination in employment, occupational safety and health, labour relations, social security, employment security and living conditions at the work site. Such rules, regulations and procedures shall take into account conventions and recommendations of the International Labour Organization and other competent international organizations.

Section 16

Responsibility and liability

16.1 The Contractor shall be liable for the actual amount of any damage, including damage to the marine environment, arising out of its wrongful acts or omissions, and those of its employees, subcontractors, agents and all persons engaged in working or acting for them in the conduct of its operations under this contract, including the costs of reasonable measures to prevent or limit damage to the marine environment, account being taken of any contributory acts or omissions by the Authority.

16.2 The Contractor shall indemnify the Authority, its employees, subcontractors and agents against all claims and liabilities of any third party arising out of any wrongful acts or omissions of the Contractor and its employees, agents and subcontractors, and all persons engaged in working or acting for them in the conduct of its operations under this contract.

16.3 The Authority shall be liable for the actual amount of any damage to the Contractor arising out of its wrongful acts in the exercise of its powers and functions, including violations under article 168,

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paragraph 2, of the Convention, account being taken of contributory acts or omissions by the Contractor, its employees, agents and subcontractors, and all persons engaged in working or acting for them in the conduct of its operations under this contract.

16.4 The Authority shall indemnify the Contractor, its employees, subcontractors, agents and all persons engaged in working or acting for them in the conduct of its operations under this contract, against all claims and liabilities of any third party arising out of any wrongful acts or omissions in the exercise of its powers and functions hereunder, including violations under article 168, paragraph 2, of the Convention.

Is the assessment of ABC that Cook Islands need not worry about liability under international law correct? Consider the Advisory Opinion of the Sea bed Disputes Chamber below.

As to the potential environmental impacts of ABC's mining activities, a Workshop held by the ISA in collaboration with the government of Fiji in 2011, has recommended that every contract for prospecting and exploration of the seabed mineral resources should require the contractor to prepare an Environmental Impact Assessment (EIA). According to the published workshop results: Environmental Management Needs for Exploration and Exploitation of Deep Sea Minerals, ISA Technical Study No. 10, the content and process of preparing the EIA should be as follows:

Content of the Environmental Impact StatementThe applicant should provide detailed responses to all areas below that are relevant to the development proposal.

Executive summaryOne of the main objectives of this section is to provide an explanation of the project for non-technical readers. Information provided on the executive summary should briefly describe:

A. the proposed development activity and its objectives;

B. anticipated bio-physical and socio-economic impacts (direct/indirect, reversible/irreversible) of the activity;

C. details of remedial actions that are proposed;

D. the benefits to be derived from the project;

E. details of the consultation programme undertaken by the applicant, including degree of public interest; and

F. end-use plans for the development activity.

The summary should not be more than 15 pages in length and in English. Appendices should be attached, as appropriate, to the EIS in order to provide complete information on the development proposal. These should cover the following points:

I. The Project This should include a brief description of the deposit discovery and the exploration and test mining activities conducted to date.

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Project proponentThis section should summarize the credentials of the Contractor proposing the development, including major shareholders.

Purpose of and justification for the developmentThe purpose of this section is to ensure that only development activities that are in line with the Authority's goals and objectives are considered for approval. This section should provide information on the viability of the proposed development activity. These details should include, but not limited to, the following:

A. the capital cost associated with the development;B. the proponent's technological expertise and resources;C. results of any feasibility investigations that have been carried out;D. the extent of landowner and/or resource owner support, including a copy of the

formal written approval of their consent;E. the anticipated lifespan and development phases of the project.

II. Policy, legal and administrative frameworkThis section should provide information on relevant legislation, agreements or policies that are applicable to the proposed mining operation. It is separated into four sections, each covering a different aspect of the legal framework.

Applicable mining and environmental legislation, policy and agreementsThe applicant should note any legislation, regulation or guidelines that apply to the management, or regulation of mining, or the environment in the Area, or any other relevant (existing or proposed) jurisdiction. This should include a note on how the proposed operation will comply with these requirements,

Other legislation, policy and regulationsDescription of any other legislation, policy or regulations that do not apply specifically to mining or environment, but may be relevant to the proposal (e.g. shipping regulations, offshore mining certificates, and potentially many more inside jurisdictional boundaries).

Relevant international agreementsThis subsection describes other more general international agreements that could be applicable to the operation, such as UNCLOS, CBD regulations and UNGA resolutions.

International standards, principles and guidelinesAny other non-legal standards or guidelines that may apply to best practice in the operation, e.g. Equator Principles.

III. Stakeholder consultation

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This section describes any consultation(s) that may have taken place with interested parties and stakeholders with an interest in the OSM application in the period leading up to the application.

Relevant jurisdiction consultation requirementsThis outlines any international or jurisdictional consultation obligations.

StakeholdersList any relevant stakeholders or other interested parties that have been consulted.

Public consultation and disclosure programmeDescription of the goals and consultation workshop!! meetings that have occurred prior to the preparation of the report.

IV. Description of the proposed developmentAll relevant details on the proposed development activity required under this section should be provided where applicable to the proposal. Details to be provided under this section may include the headings listed below.

LocationThis section should include detailed location maps (drawn to scale), site layout, etc.Associated activities This section should include a description of any supporting activities and infrastructure required (e.g. ports, barges, transportation corridors, crew transfers, etc.)

Project componentsThis section should provide background information to the proposal, technologies to be employed, etc. For polymetallic nodule exploitation;, Contractors should refer to Section IV C of the Recommendations for the guidance of contractors for the: assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area (ISBA/161 LTC/7). This section should include information on methods of exploitation site selection including alternatives investigated; relevant diagrams and drawings;

Mineral resourceThis section should include the type of resource proposed for extraction (e. g; nodules, polymetallic sulphides, cobalt-rich crusts or other mineral); the type of commodity, the grade and volume. Estimates of inferred and indicated resource should be provided.

Offshore mining and support equipmentThis section should include descriptions of the offshore mining and support equipment (including vessels) required to carry out the activity.

Mining

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Mine planGeneral mining sequence

Hazardous materials managementDescription of hazardous materialsTransportationStorage; handling and disposal

WorkforceWorkforce description·Employment policyCapacity-building objectives and commitments

Construction and operating standardsThis section should outline the design codes to which the equipment will be built, as well as the health and safety standards that will be applied.

Design codesHealth and safety

Decommissioning and closureOffshore infrastructureOnshore facilities

V. Development timetable (Detailed schedule)This should include the major phases of the operation, as well as the milestone dates on which relevant tasks are expected to be completed. Information on the development timetable provided under this section should clearly communicate the different phases in the development proposal. For reasons of clarity, a Flow chart, Gantt or PERT chart should be used where appropriate. Information provided in this section should include, but not b e limited to, the following:

A. The funding arrangement for proposed activity or if availability of funds is subject to this or other approvals being granted;

B. Pre-construction activities:C. Construction schedule; staging, etc.;D. Commissioning and operational schedules;E. Infrastructure development schedule; andF. Closure schedule.

VI. Description of the existing offshore environmentIn this section, the applicant is to give a detailed account of knowledge of the environmental conditions at the site. It provides the baseline description of geological, oceanographic and biological conditions against which impacts will be measured and assessed.

Regional overview

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Provide a general description of the environmental conditions in the broad region of the site, including major oceanographic, geological and biological setting.

Studies completedSpecial considerations for siteDescription of any notable characteristics of the site, whether geological, oceanographic or biological, such as hydrothermal venting, seamounts, high-surface productivity, eddies and endemic fauna.Meteorology and air quality

Geological settingDescription of the general geologica/landscape and topographic features of the site.

Physical oceanographic settingDescription of oceanographic aspects such as currents, sedimentation rates.

Water qualityDescription of water mass characteristics at the site at various depths, including nutrients, particle loads, temperature and dissolved gas profiles, etc.

Sediment characteristicsDescription of substrate composition with special reference to sediment composition, pore water profiles, and grain size.

Biological environmentThis section is divided by depth regime into a description of the various biological components and communities that are present in or utilize the water column and seabed in the region of the site.

PelagicFrom the surface down to 200m. This includes plankton, surface/near surface fish, such as tunas, but also utilization by seabirds and marine mammals.

MidwaterOpen water from a depth of 200m down to the seafloor. This includes zooplankton, mesopelagic and bathypelagic fishes and deep-diving mammals.

BenthicBenthic invertebrate communities, including infauna and demersal fish. This should includeconsiderations of species richness, biodiversity, faunal densities and community structures.

Natural hazardsDescription of volcanism, seismic activity, etc.

NoiseDescription of ambient noise if any, influence of ongoing exploration and maritime activity.

Description of the existing onshore environmentDescription of the conditions of any onshore processing operation, as well as any relevant environmental information on transit lanes/areas.

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VII. Socio-economic environmentIf the project area occurs within an area used by fisheries, then this needs to be described here.

Existing resource utilization

Fisheries

Marine trafficThis section describes the non-project-related marine traffic occurring within the project area.

OtherThis section will deal with other uses of the project area that are not related to fisheries or marine traffic (e.g. telecommunications cables, other mineral exploitation projects, etc.).

Cultural/historical resourcesThis section will deal with items of cultural/historical significance that occur within the project area (e.g. shipwrecks).

Socio-economic and socio-cultural issuesIssues that may arise within and outside of the project area should be identified, including whether this is a direct or indirect outcome of the physical, biological or socio-economic effects of the proposed development activity.

Onshore socio-economic environmentIt is envisaged that this section will only be applicable to projects located within EEZs.

VIII. Environmental impacts, mitigation and management measuresIn this section, the applicant is to provide a detailed description and evaluation of potential impacts of the mining operation to environmental components identified previously. The format should be consistent between and within sections, so for each component a description would be included of:

A. the nature and extent of any impact;B. measures that will be taken to avoid, mitigate or minimize such impact; andC. what unavoidable impacts will remain.

It is expected that some repetition will occur between sections, notably where an impact of the mining operation will affect several components of the environment at the site.

Description of potential impact categoriesThis section is an overview and description of general impact categories caused by the mining operation. This is not expected to be detailed, but introduce the major types of effect, such as habitat removal, crushing of animals, creation of sediment plumes, noise, light etc. A description should be included of any lessons learnt from activities during the exploratory phase of the programme (e.g. test mining trials).

Air quality

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Description of any effect on the air quality. from the surface or subsurface 0perations.

Geological settingDescription of impacts the mining may have on the topography of the site or the geological or geophysical composition:

Physical oceanographic- setting:Description of effects on current speed; direction; sedimentation rates, etc.

Water qualityDescription of effects such as sediment plume generation and clarity of water, particulate loading, water temperature, dissolved gas and nutrient levels etc., in all levels of the water column.

Sediment characteristicsChanges in the sediment composition;- grain size. density, pore water profiles

Biological communitiesDescription of the effects on individuals, communities, populations and meta-populations from the proposed activity.

PelagicIncludes plankton, surface/ near-surface fish, such as tunas, but also seabirds and marine mammals;

MldwaterIncludes zooplankton, mesopelagic and bathypelagic fishes and deep-diving mammals.

BenthicBenthic epifaunal and infauna/invertebrate communities and demersal fish.

Natural hazardsVolcanic eruptions, seismic activity, sea floor instability and tsunami.

NoiseNoise above existing levels

Greenhouse gas emissions and climate changeEffects of surface/ subsurface activities on GHG emissions and any activity that may affect water acidity.

IX. Maritime safety and interactions with shippingX. Residual impacts

XI. BiosecurityXII. Waste management

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Vessel waste management, with reference to compliance with relevant conventions, legislation or principles, methods of cleaner production and energy balance

XIII. Cumulative impactsHere the proposer should consider the nature and extent of any interactions between various impacts where they may have cumulative effects

XIV. On and nearshore environmentWhere appropriate, this should contain a description of general issues related to transit from/to the site and port operation, etc. This subsection is to be developed in as much detail as appropriate, with emphasis on the particular circumstances of the mining operation and processing location.

XV. Socio-economic impactsIn this section, the applicant is to provide a description and evaluation of potential impacts of the mining operation to previously identified socio·economic components. This involves fisheries, marine traffic, and possible telecommunications impacts.

XVI. Cultural/Historical resources (e.g. shipwrecks, IUCN natural world heritage sites)

XVII. Environmental management, monitoring and reportingSufficient information should be provided to enable the Authority to anticipate possible environmental management, monitoring and reporting requirements for an environment permit. Information listed should reflect the proponent's environmental policy (Environment Management System) and the translation of that policy to meet the requirements under this section and previous sections during different stages in the project life, i.e. from operations to decommissioning and closure. Information detailed in this section should include, but not be limited to, the headings below.

Organizational structure and responsibilitiesThis section should show how the Contractor's environmental team fits into its overall organizational structure. Responsibilities of key personnel should be outlined.

Environmental Management System (EMS)It is understood that a full EMS may or may not exist at the EIS submission stage. This section should outline the standards that will be considered and/ or aligned with in developing the EMS for the project.

Environmental Management Plan (EMP)An EMP will be submitted as a separate document for the Authority’s approval prior to exploitation operations commencing. This section should provide an overview of what an EMP would entail. This section shall include, as a minimum, the following headings.

Mitigation and managementThis section should summarize the actions and commitments that have arisen from the impact minimization and mitigation strategies.

Monitoring planThis section should summarize the monitoring plan approach and programme. For development proposals associated with nodule exploitation, Contractors should take into

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account sections IV( D) and IV( E) of the "Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area (ISBA/ 1 61 L TC/ 7).

Closure planIt is expected that a closure plan will be submitted as a separate document for the Authority's approval. However, this section should provide an overview of what the closure plan will entail, including decommissioning, continued monitoring and rehabilitation measures, if applicable.

NOTE

One reason why sea bed mining in the Area is not yet operational is the complex legal issues that are involved. The principal international environmental law obligations that must be observed include the following:

Precautionary approach (Rio Principle 15; ISA Mining Code) Duty to preserve and protect the marine environment (UNCLOS Art. 192) Duty to prevent, reduce and control pollution from seabed activities (UNCLOS Art. 208) Best environmental practices (ISA Mining Code) Duty to prevent transboundary harm (Rio Principle 2; Part XII of UNCLOS) Duty to conserve biodiversity (UN Convention on Biological Diversity Art. 3) Duty to prepare a prior environmental impact assessment (UNCLOS Art. 206) Duty to monitor environmental impacts (UNCLOS Art. 204)

In addition, seabed mining may expose the seabed mining contractor, the sponsoring state, and even the ISA to liability for damages. Consider the following landmark opinion by the Sea bed Disputes Chamber of the International Tribunal for the Law of the Sea.

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ADVISORY OPINION

RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS AND ENTITIES WITH RESPECT

to

ACTIVITIES IN THE AREA

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

SEABED DISPUTES CHAMBER

1 FEBRUARY 2011

(CASE NO. 17)

[On 11 May 2011, the Council of the International Seabed Authority transmitted a request to the SeabedDisputes Chamber of the International Tribunal for an Advisory Opinio n on the following three questions:

What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982?

What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1 994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention?

What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement?

This Request for an Advisory Opinion was occasioned by the fact that on 10 April 2008, the InternationalSeabed Authority had received two applications for approval of a plan of work for exploration in the areas reserved for the conduct of activities by the Authority through the Enterprise or in association with developing states pursuant to UNCLOS. These two applications were sponsored respectively by the Republic of Nauru and the Kingdom of Tonga.]

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Question 1

72. The first question submitted to the chamber is as follows:

What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982?

I. Sponsorship

74 The notion of "sponsorship" is a key element in the system for the exploration and exploitation of the resources of the Area set out in the Convention. Article 153, paragraph 2, of the Convention describes the "parallel system" of exploration and exploitation activities indicating that such activities shall be carried out by the Enterprise, and, in association with the Authority, by States Parties or state enterprises or natural or juridical persons. It further states that, in order to be eligible to carry out such activities, natural and juridical persons must satisfy two requirements. First, they must be either nationals of a State Party or effectively controlled by it or its nationals. Second, they must be "sponsored by such States". Article 153, paragraph 2(b), of the Convention makes the requirement of sponsorship applicable also to state enterprises.

77. The connection between States Parties and domestic law entities required by the Convention is twofold, namely, that of nationality and that of effective control. All contractors and applicants for contracts must secure and maintain the sponsorship of the State or States of which they are nationals. If another State or its nationals exercises effective control, the sponsorship of that State is also necessary. This is provided for in Annex Ill, article 4, paragraph 3, of the Convention and confirmed in regulation 11 , paragraph 2, of the Nodules Regulations and of the Sulphides Regulations.

II. "Activities in the Area"

82. Question 1 concerns the responsibilities and obligations of sponsoring States in respect of "activities in the Area". This expression is defined in article 1, paragraph 1 (3), of the Convention as "all activities of exploration for, and exploitation of, the resources of the Area". According to article 1 33 (a) of the Convention, for the purposes of Part XI, the term "resources" means "all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules". The two definitions, however, do not indicate what is meant by "exploration" and "exploitation". It is important to note that according to article 1 33 (b), "resources, when recovered from the Area, are referred to as ' minerals"'.

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83. Some indication of the meaning of the term "activities in the Area" may be found in Annex IV, article 1, paragraph 1, of the Convention. It reads as follows:

The Enterprise is the organ of the Authority which shall carry out activities in the Area directly, pursuant to article 153 , paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area.

84. This provision distinguishes "activities in the Area" which the Enterprise carries out directly pursuant to article 1 53, paragraph 2(a), of the Convention; from other activities with which the Enterprise is entrusted, namely, the transporting, processing and marketing of minerals recovered from the Area. Consequently, the latter activities are not included in the notion of "activities in the Area" referred to in Annex IV, article 1, paragraph 1, of the Convention.

94. In light of the above, the expression "activities i n the Area", in the context of both exploration and exploitation, includes, first of all, the recovery of minerals from the seabed and their lifting to the water surface.

95. Activities directly connected with those mentioned in the previous paragraph such as the evacuation of water from the minerals and the preliminary separation of materials of no commercial interest, including their disposal at sea, are deemed to be covered by the expression "activities in the Area". "Processing", namely, the process through which metals are extracted from the minerals and which is normally conducted at a plant situated on land, is excluded from the expression "activities in the Area". This is confirmed by the wording of Annex IV, article 1 , paragraph 1 , of the Convention as well as by information provided by the Authority at the request of the Chamber.

96. Transportation to points on land from the part of the high seas superjacent to the part of the Area in which the contractor operates cannot be included in the notion of "activities in the Area", as it would be incompatible with the exclusion of transportation from "activities in the Area" in Annex IV, article 1 , paragraph 1, of the Convention. However, transportation within that part of the high seas, when directly connected with extraction and lifting, should be included in activities in the Area. In the case of polymetallic nodules, this applies, for instance, to transportation between the ship or installation where the lifting process ends and another ship or installation where the evacuation of water and the preliminary separation and disposal of material to be discarded take place. The inclusion of transportation to points on land could create a n unnecessary conflict with provisions of the Convention such as those that concern navigation on the high seas.

III. Prospecting

98. "Prospecting", although mentioned in Annex I l l , article 2, of the Convention and in the Nodules Regulations and the Sulphides Regulations, is not included in the Convention's definition of "activities in the Area" because the Convention and the two Regulations distinguish it from

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"exploration" and from "exploitation". Moreover, under the Convention and related instruments, prospecting does not require sponsorship. I n conformity with the questions submitted to it, which relate to "activities in the Area" and to sponsoring States, the Chamber will not address prospecting activities. However, considering that prospecting is often treated as the preliminary phase of exploration in mining practice and legislation, the Chamber considers it appropriate to observe that some aspects of the present Advisory Opinion may also apply to prospecting.

IV. Responsibilities and obligations

Key provisions

99. The key provisions concerning the obligations of the sponsoring States are: article 139, paragraph 1; article 153, paragraph 4 (especially the last sentence); and 4, paragraph 4, of the Convention (especially the first sentence).

100. These provisions read:

Article 139, paragraph 1States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations.

Article 153, paragraph 4The Authority shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and procedures of the Authority, and the plans of work approved in accordance with paragraph 3. States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with article 1 39.

Annex III, article 4, paragraph 4The sponsoring State or States shall, pursuant to article 1 39, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

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“Responsibility to ensure”

107. The central issue in relation to Question 1 concerns the meaning of the expression “responsibility to ensure” in article 139, paragraph 1, and Anex III, article 4, paragraph 4, of the Convention.

108. “Responsibility to ensure” points to an obligation of the sponsoring State under international law. It establishes a mechanism through which the rules of the convention concerning activities in the Area, although being treaty law and thus binding only on the subjects of international law that have accepted them, become effective for dsponsored contractors which find their legal basis in domestic law. this mechanism consists in the creation of obligations which States Parties must fulfill by excersicing their power over entitites of their nationality and under their control.

109. As will be seen in greater detail in the reply to Question 2, a violation of this obligation entails “liability”. However, not every violation of an obligation by a sponsored contractor automatically gives rise to the liability of the sponsoring State. Such liability is limited to the State’s failure to meet its obligation to “ensure” compliance by the sponsored contractor.

110. The sponsoring State’s obligation “to ensure” is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations. Rather, it is an obligation to deply adequate means, to exercise best possible efforts, to do the utmost, to obtan this result. to utilize the terminology current in international law, this obligation may be characterized as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”.

111. The notions of obligations of "due diligence" and obligations "of conduct" are connected. This emerges clearly from the Judgment of the ICJ in the Pulp Mills on the River uruguay: "An obligation to adopt regulatory or administrative measures...and to enforce them is an obligation of conduct. Both parties are therefore called upon, under article 36 [of the Statute of the River Uruguay], to exercise due diligence in acting through the [Uruguay River] Commission for the necessary measures to preserve the ecological balance of the river" (paragraph 187 of the Judgment).

112. The expression "to ensure" is often used in international legal instruments to refer to obligations in respect of which, while it is not considered reasonable to make a State liable for each and every violation committed by persons under its jurisdiction, it is equally not considered satisfactory to rely on mere application of the principle that the conduct of private persons or entities is not attributable to the State under international law (see ILC Articles on State Responsibility, Commentary to article 8, paragraph 1).

113. An example may be found in article 194, paragraph 2, of the Convention which reads: "States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment..."

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115. In its Judgment in the Pulp Mills on the River Uruguay case, the ICJ illustrates the meaning of a specific treaty obligation that it had qualified as "an obligation to act with due diligence" as follows:

It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators . . . (Paragraph 197)

116. Similar indications are given by the International Law Commission in its Commentary to article 3 of its Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted in 2001. According to article 3, the State of origin of the activities involving a risk of causing transboundary harm "shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof". The Commentary states:

The obligation of the State of origin to take preventive or minimization measures is one of due diligence. It is the conduct of the State of origin that will determine whether the State has complied with its obligation under the present articles. The duty of due diligence involved, however, is not intended to guarantee that significant harm be totally prevented, if it is not possible to do so. In that eventuality, the State of origin is required . . . to exert its best possible efforts t o minimize the risk. I n this sense, it does not guarantee that the harm would not occur. (Paragraph 7)

The content of the "due diligence" obligation to ensure

117. The content of "due diligence" obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that "due diligence" is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance. of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity. As regards activities in the Area, it seems reasonable to state that prospecting is, "generally speaking, less risky than exploration activities which, in turn, entail less risk than exploitation. Moreover, activities in the Area concerning different kinds of mineral, for example, polymetallic nodules on the one hand and polymetallic sulphides or cobalt rich ferromanganese crusts on the other, may require different standards of diligence. The standard of due diligence has to be more severe for the riskier activities.

V. Direct obligations of sponsoring States

121. The obligations of sponsoring States are not limited to the due diligence "obligation to ensure". Under the Convention and related instruments, sponsoring States also have obligations with which they have to comply independently of their obligation to ensure a certain behaviour by the sponsored contractor. These obligations may be characterized as "direct obligations".

122. Among the most important of these direct obligations incumbent on sponsoring States are: the obligation to assist the Authority in the exercise of control over activities in the Area; the obligation to apply a precautionary approach; the obligation to apply best environmental

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practices; the obligation to take measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution; and the obligation to conduct environmental impact assessments.

VI. Environmental impact assessment

141. The obligation of the contractor to conduct an environmental impact assessment is explicitly set out in section 1, paragraph 7, of the Annex to the 1994 Agreement as follows: "An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities...” The sponsoring State is under a due diligence obligation to ensure compliance by the sponsored contractor with this obligation.

VII. Interests and needs of developing States 151 . With respect to activities in the Area, the fifth preambular paragraph of the Convention states that

the achievement of the goals set out in previous preambular paragraphs: will contribute to the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked.

152. Accordingly, it is necessary to examine whether developing sponsoring States enjoy preferential treatment as compared with that granted to developed sponsoring States under the Convention and related instruments.

153. Under article 1 40, paragraph 1 , of the Convention : Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or land-locked, and taking into particular consideration the interests and needs of developing States . . .

154. According to article 1 48 of the Convention: The effective participation of developing States in activities in the Area shall be promoted as specifically provided for in this Part, having due regard to their special interests and needs, and in particular to the special needs of the land-locked and geographically disadvantaged among them to overcome obstacles arising from their disadvantaged location, including remoteness from the Area and difficulty of access to and from it.

156. For the purposes of the present Advisory Opinion, and in particular of Question 1 , it is important to determine the meaning of article 1 48 of the Convention. According to this provision , the general purpose of promoting the participation of developing States in activities in the Area taking into account their special interests and needs is to be achieved "as specifically provided for" in Part X I (an expression also found in article 1 40 of the Convention). This means that there is no general clause for the consideration of such interests and needs beyond what is provided for in specific provisions of Part XI of the Convention. A perusal of Part XI shows immediately that there are several provisions designed to ensure the participation of developing States in activities in the Area and to take into particular consideration their interests and needs.

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157. The approach of the Convention to this is particularly evident in the provisions granting a preference to developing States that wish to engage in mining in areas of the deep seabed reserved for the Authority (Ann ex I l l , articles 8 and 9, of the Convention); in the obligation of States to promote international cooperation in marine scientific research in the Area in order to ensure that programmes are developed "for the benefit of developing States" (article 1 43, paragraph 3, of the Convention); and in the obligation of the Authority and of States Parties to promote the transfer of technology to developing States (article 1 44, paragraph 1 , of the Convention and section 5 of the Annex to the 1 994 Agreement), and to provide training opportunities for personnel from developing States (article 1 44, paragraph 2, of the Convention and section 5 of the Annex to the 1 994 Agreement); in the permission granted to the Authority in the exercise of its powers and functions to give special consideration to developing States, notwithstanding the rule against discrimination (article 1 52 of the Convention); and in the obligation of the Council to take "into particular consideration the interests and needs of developing States" in recommending, and approving, respectively, rules regulations and procedures on the equitable sharing of financial and other benefits derived from activities in the Area (articles 1 60, paragraph 2(f)(i), and 1 62, paragraph 2 (o )(i), of the Convention).

158. However, none of the general provisions of the Convention concerning the responsibilities (or the liability) of the sponsoring State ''specifically provides" for according preferential treatment to sponsoring States that are developing States. As observed above, there is no provision requiring the consideration of such interests and needs beyond what is specifically stated in Part XI . It may therefore be concluded that the general provisions concerning the responsibilities and liability of the sponsoring State apply equally to all sponsoring States, whether developing or developed.

159. Equality of treatment between developing and developed sponsoring States is consistent with the need to prevent commercial enterprises based in developed States from setting up companies in developing States, acquiring their nationality and obtaining their sponsorship in the hope of being subjected to less burdensome regulations and controls. The spread of sponsoring States "of convenience'' would jeopardize uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area and protection of the common heritage of mankind.

[With respect to the equality issue, the ITLOS qualified its ruling by stating that "rules setting out direct obligations of states may provide for differences between developed and developing states (para. 160). Moreover, the precautionary approach may apply differently to developing and developed states (para. 161). Developing states should also be assisted with training (para. 162).]

Question 2

164. The second question submitted to the Chamber is as follows:

What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention in particular Part XI, and the 1 994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2(b), of the Convention?

I. Applicable provisions

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165. In replying to this question, the Chamber will proceed from article 1 39, paragraph 2, of the Convention, read in conjunction with the second sentence of Annex III, article 4, paragraph 4, of the Convention.

166. Article 1 39, paragraph 2, of the Convention reads:

Without prejudice to the rules of international law and Annex III, article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability. A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored under article 1 53, paragraph 2(b), if the State Party has taken all necessary arid appropriate measures to secure effective compliance under article 1 53, paragraph 4, and Annex III, article 4, paragraph 4.

167. Annex III, article 4 , paragraph 4, second sentence, of the Convention states:

A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

168. The Chamber will further take into account articles 235 and 304 as well as Annex III, article 22, of the Convention. Lastly, it will consider, as appropriate, the relevant rules on liability set out in the Nodules Regulations and the Sulphides Regulations. In this context, the Chamber notes that the Regulations issued to date by the Authority deal only with prospecting and exploration. Considering that the potential for damage, particularly to the marine environment, may increase during the exploitation phase, it is to be expected that member States of the Authority will further deal with the issue of liability in future regulations on exploitation.

II. Liability in general

171. Article 139, paragraph 2, of the Convention and the related provisions referred to above, prescribe or refer to different sources of liability, namely, rules concerning the liability of States Parties (article 1 39, paragraph 2, first sentence, of the Convention), rules concerning sponsoring State liability (article 1 39, paragraph 2, second sentence, of the Convention), and rules concerning the liability of the contractor and the Authority (referred to in Annex I ll, article 22, of the Convention). The "without prejudice" clause in the first sentence of article 1 39, paragraph 2, of the Convention refers to the rules of international law concerning the liability of States Parties and international organizations. A reference to the international law rules on liability is also contained in article 304 of the Convention. The Chamber considers that these rules supplement the rules concerning the liability of the sponsoring State set out in the Convention.

III. Failure to carry out responsibilities

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175. The Chamber will now turn to the interpretation of the elements constituting liability as set out in article 1 39, paragraph 2, of the Convention, read in conjunction with Annex III, article 4, paragraph 4, of the Convention.

176. The wording of article 139, paragraph 2, of the Convention clearly establishes two conditions for liability to arise: the failure of the sponsoring State to carry out its responsibilities (see paragraphs 64 to 71 on the meaning of key terms); and the occurrence of damage.

177. The failure of a sponsoring State to carry out its responsibilities, referred to in article 139, paragraph 2, of the Convention, may consist in an act or an omission that is contrary to that State's responsibilities under the deep seabed mining regime.

IV. Damage

178. As stated above, according to the first sentence of article 139, paragraph 2, of the Convention, the failure of a sponsoring State to carry out its responsibilities entails liability only if there is damage. This provision covers neither the situation in which the sponsoring State has failed to carry out its responsibilities but there has been no damage, nor the situation in which there has been damage but the sponsoring State has met its obligations. this constitutes an exception to the customary international law rule on liability since, as states in the Rainbow Warrior Arbitration (Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, UNRIAA, 1990, vol. XX, p. 215, at paragraph 110), and in paragraph 9 of the Commentary to article 2 of the ILC Articles on State Responsibility, a state may be held liable under customary international law even if no material damage results from its failure to meet its international obligations.

179. Neither the Convention nor the relevant Regulations (regulation 30 of the Nodules Regulations and regulation 32 of the Sulphides Regulations) specifies what constitutes compensable damage, or which subjects may be entitled to claim compensation. It may be envisaged that the damage in question would include damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment.

180. No provision of the Convention can be read as explicitly entitling the Authority to make such a claim. It may, however, be argued that such entitlement is implicit in article 1 37, paragraph 2, of the Convention, which states that the Authority shall act "on behalf of mankind. Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligation s relating to preservation of the environment of the high seas and in the Area. In su pport of this view, reference may be made to article 4 8 of the I LC Articles on State Responsibility, which provides:

Any State other than an injured State is entitled to invoke the responsibility of another State . . . if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.

Causal link between failure and damage

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181. Article 139, paragraph 2, first sentence, of the Convention refers to "damage caused", which clearly indicates the necessity of a causal link between the damage and the failure of the sponsoring State to meet its responsibilities. The second sentence of article 1 39, paragraph 2, of the Convention does not mention this causal link. It refers only to a causal link between the activity of the sponsored contractor and the consequent damage. Nevertheless, the Chamber is of the view that, in order for the sponsoring State's liability to arise, there must be a causal link between the failure of that State and the damage caused by the sponsored contractor.

V. Exemption from liability

185. The Chamber will now direct its attention to the meaning of the clause “shall not however be liable for damage” in article 139, paragraph 2, second sentence, and in Annex III, article 4, paragraph 4, second sentence, of the Convention.

186. This clause provides for the exemption of the sponsoring State from liability. Its effect is that, in the event that the sponsored contractor fails to comply with the Convention, the Regulations or its contract, and such failure results in damage, the sponsoring State cannot be held liable. The condition for exemption of the sponsoring State from liability is that, as specified in article 139, paragraph 2, of the Convention , it has taken "all necessary and appropriate measures to secure effective compliance" under article 153 , paragraph 4 , and Annex III, article 4, paragraph 4, of the Convention.

VI. Scope of liability under the Convention

188. The Chamber will now deal with the scope of liability under article 139, paragraph 2, second sentence, of the Convention. This requires addressing several issues, namely, the standard of liability, multiple sponsorship, the amount and form of compensation and the relationship between the liability of the contractor and of the sponsoring State.

Standard of liability

189. With regard to the standard of liability, it was argued in the proceedings that the sponsoring State has strict liability, i.e., liability without fault. The Chamber, however, would like to point out that liability for damage of the sponsoring State arises only from its failure to meet its obligation of due diligence. This rules out the application of strict liability.

Multiple sponsorship

192. Apart from the exception mentioned in paragraph 1 91 , the provisions of article 1 39, paragraph 2, of the Convention and related instruments dealing with sponsorship do not differentiate between single and multiple sponsorship. Accordingly, the Chamber takes the position that, in the event of multiple sponsorship, liability is joint and several unless otherwise provided in the Regulations issued by the Authority.

Amount and form of compensation

194. The obligation for a State to provide for a full compensation or restitute in integrum is currently part of customary international law. This conclusion was first reached by the Permanent Court

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of International Justice in the Factory of Chorzow case (PCJJ Series A, No. 1 7, p. 47). This obligation was further reiterated by the International Law Commission. According to article 31, paragraph 1, of the ILC Articles on State Responsibility: "The responsible State is under a n obligation to make full reparation for the injury caused by the internationally wrongful act".

Relationship between the liability of the contractor and of the sponsoring State

199. Concerning the relationship between the contractor's liability and that of the sponsoring State, attention may be drawn to Annex III, article 22, of the Convention. This provision reads as follows:

The contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations, account being taken of contributory acts or omissions by the Authority. Similarly, the Authority shall have responsibility or liability for any damage arising out of wrongful acts in the exercise of its powers and functions, including violations under article 1 68, paragraph 2, account being taken of contributory acts or omissions by the contractor. Liability in every case shall be for the actual amount of damage. (Emphasis added)

200. No reference is made in this provision to the liability of sponsoring States. It may therefore be deduced that the main liability for a wrongful act committed in the conduct of the contractor's operations or in the exercise of the Authority's powers and functions rests with the contractor and the Authority, respectively, rather than with the sponsoring State. In the view of the Chamber, this reflects the distribution of responsibilities for deep seabed mining activities between the contractor, the Authority and the sponsoring State.

202. If the contractor has paid the actual amount of damage, as required under Annex III, article 22, of the Convention, in the view of the Chamber, there is no room for reparation by the sponsoring State.

203. The situation becomes more complex if the contractor has not covered the damage fully. It was pointed out in the proceedings that a gap in liability may occur if, notwithstanding the fact that the sponsoring State has taken all necessary and appropriate measures, the sponsored contractor has caused damage and is unable to meet its liability in full. It was further pointed out that a gap in liability may also occur if the sponsoring State failed to meet its obligations but that failure is not causally l inked to the damage. I n their written and oral statements, States Parties have expressed different views on this issue. Some have argued that the sponsoring State has a residual liability, that is, the liability to cover the damage not covered by the sponsored contractor although the conditions for a l i ability of the sponsoring State under article 1 39 , paragraph 2, of the Convention are not met. Other States Parties have taken the opposite position.

204. In the view of the Chamber, the liability regime established by article 139 of the Convention and in related instruments leaves no room for residual liability. As outlined in paragraph 201 , the liability of the sponsoring State and the liability of the sponsored contractor exist in parallel. The liability of the sponsoring State arises from its own failure to comply with its responsibilities under the Convention and related instruments. The liability of the sponsored contractor arises from its failure to comply with its obligations under its contract and its undertakings there

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under. As has been established, the liability of the sponsoring State depends on the occurrence of damage resulting from the failure of the sponsored contractor. However, as noted in paragraph 182, this does not make the sponsoring State responsible for the damage caused by the sponsored contractor.

205. Taking into account that, as shown above in paragraph 203, situations may arise where a contractor does not meet its liability in full while the sponsoring State is not liable under article 139, paragraph 2, of the Convention, the Authority may wish to consider the establishment of a trust fund to compensate for the damage not covered. The Chamber draws attention to article 235, paragraph 3, of the Convention which refers to such possibility.

VII. Liability of sponsoring States for violation of their direct obligations

206. As stated in paragraph 121, the Convention and related instruments provide for direct obligations of sponsoring States. Liability for violation of such obligations is covered by article 1 39, paragraph 2, first sentence, of the Convention.

207. In the event of failure to com ply with direct obligations, it is not possible for the sponsoring State to claim exemption from liability as article 1 39, paragraph 2, second sentence, of the Convention does not apply.

VIII. "Without prejudice" clause

208. The Chamber will now consider the impact of international law on the deep seabed liability regime. Articles 139, paragraph 2, first sentence, and 304 of the Convention, state that their provisions are “without prejudice" to the rules of international law (see paragraph 169). It remains to be considered whether such statement may be used to fill a gap in the liability regime established in Part XI of the Convention and related instruments.

209. As already indicated, if the sponsoring State has not failed to meet its obligations, there is no room for its liability under article 1 39, paragraph 2, of the Convention even if activities of the sponsored contractor have resulted in damage. A gap in liability which might occur in such a situation cannot be closed by having recourse to liability of the sponsoring State under customary international law. The Chamber is aware of the efforts made by the International Law Commission to address the issue of damages resulting from acts not prohibited under international law. However, such efforts have not yet resulted in provisions entailing State liability for lawful acts. Here again (see paragraph 205) the Chamber draws the attention of the Authority to the option of establishing a trust fund to cover such damages not covered otherwise.

Question 3

212. The third question submitted to the Chamber is as follows :

What are the necessary and appropriate measures that a sponsoring State must take in order to fulfill its responsibility under the Convention, in particular Article 139 and Annex Ill, and the 1994 Agreement?

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I. General aspects

213. The focus of Question 3, as of Questions 1 and 2, is on sponsoring States. The Question seeks to find out the "necessary and appropriate measures" that the sponsoring State "must" take in order to fulfill its responsibility under the Convention, in particular article 1 39 and Annex I l l , and the 1 994 Agreement. The starting point for this inquiry is article 1 53 of the Convention, since it introduces for the first time the concept of the sponsoring State and the measures that it must take. Article 1 53 does not specify the measures to be taken by the sponsoring State. It makes a cross reference to article 139 of the Convention for guidance in the matter.

214. Article 139, paragraph 2, of the Convention provides that the sponsoring State shall not be liable for damage caused by any failure to comply with Part XI of the Convention by an entity sponsored by it under article 153, paragraph 2(b ), of the Convention , "if the State Party has taken all necessary and appropriate measures to secure effective compliance under article 153, paragraph 4 , and Annex III, article 4, paragraph 4".

215. Article 139, paragraph 2, of the Convention does not specify the measures that are "necessary and appropriate". It simply draws attention to article 153, paragraph 4, and Annex I'll, article 4, paragraph 4, of the Convention. The relevant part of Annex I'll, article 4, paragraph 4, reads as follows:

A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

216. Although the terminology used i n these provisions varies slightly, they deal in essence with the same subject matter and convey the same meaning. Annex III, article 4, paragraph 4, of the Convention contains an explanation of the words "necessary and appropriate measures" in article 139, paragraph 2, of the Convention.

217. Under these provisions, in the system of the responsibilities and liability of the sponsoring State, the "necessary and appropriate measures" have two distinct, although interconnected, functions as set out in the Convention. On the one hand, these measures have the function of ensuring compliance by the contractor with its obligations under the Convention and related instruments as well as under the relevant contract. On the other hand, they also have the function of exempting the sponsoring State from liability for damage caused by the sponsored contractor, as provided in article 139, paragraph 2, as well as in Annex III, article 4, paragraph 4, of the Convention. The first of these functions has been illustrated in the reply to Question 1 , in connection with the due diligence obligation of the sponsoring State to ensure compliance by the sponsored contractor, while the second has been partially addressed in the reply to Question 2 and will be further addressed in the following paragraphs.

II. Laws and regulations and administrative measures

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218. Annex III, article 4, paragraph 4, of the Convention requires the sponsoring State to adopt laws and regulations and to take administrative measures. Thus, there is here a stipulation that the adoption of laws and regulations and the taking of administrative measures are necessary. The scope and extent of the laws and regulations and administrative measures required depend upon the legal system of the sponsoring State. The ad option of laws and regulations is prescribed because not all the obligations of a contractor may be enforced through administrative measures or contractual arrangements alone, as specified in paragraphs 223 to 226.

III. Compliance by means of a contract?

223. It is the requirement in Annex III, article 4 , paragraph 4, of the Convention, that the measures to be taken by the sponsoring State should be in the form of laws and regulations and administrative measures. This means that a sponsoring State could not be considered as complying with its obligations only by entering into a contractual arrangement, such as a sponsoring agreement, with the contractor. Not only would this be incompatible with the provision referred to above but also with the Convention in general and Part XI thereof in particular.

224. Mere contractual obligations between the sponsoring State and the sponsored contractor may not serve as an effective substitute for the laws and regulations and administrative measures referred to in Annex III, article 4, paragraph 4, of the Convention. Nor would they establish legal obligations that could be invoked against the sponsoring State by entities other than the sponsored contractor.

IV. Content of the measures

227. The Convention leaves it to the sponsoring State to determine what measures will enable it to discharge its responsibilities. Policy choices on such matters must be made by the sponsoring State. In view of this, the Chamber considers that it is not called upon to render specific advice as to the necessary and appropriate measures that the sponsoring State must take in order to fulfill its responsibilities under the Convention.

240. Under Annex III, article 21, paragraph 3, of the Convention, the rules, regulations and procedures concerning environmental protection adopted by the Authority are used as a minimum standard of stringency for the environmental or other laws and regulations that the sponsoring State may apply to the sponsored contractor. It is implicit in this provision that sponsoring States may apply to the contractors they sponsor more stringent standards as far as the protection of the marine environment is concerned.

241. Article 209, paragraph 2 , of the Convention is based on the same approach. According to this provision, the requirements contained in the laws and regulations that States adopt concerning pollution of the marine environment from activities in the Area "undertaken by vessels, installations, structures and other devices flying their flag or of their registry or operating under their authority . . . shall be no less effective than the international rules, regulations , and procedures" established under Part XI, which consist primarily of the international rules, regulations and procedures adopted by the Authority.

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242. For these reasons,

THE CHAMBER,

1. Unanimously,

Decides that it has jurisdiction to give the advisory opinion requested.

2. Unanimously,

Decides to respond to the request for an advisory opinion.

3. Unanimously,

Replies to Question 1 submitted by the Council as follows:

Sponsoring States have two kinds of obligations under the Convention and related instruments:

A. The obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments.

This is an obligation of "due diligence". The sponsoring State is bound to make best possible efforts to secure compliance by the sponsored contractors.

B. Direct obligations with which sponsoring States must comply independently of their obligation to ensure a certain conduct on the part of the sponsored contractors.

4. Unanimously,

Replies to Question 2 submitted by the Council as follows:

The liability of the sponsoring State arises from its failure to fulfil its obligations under the Convention and related instruments. Failure of the sponsored contractor to comply with its obligations does not in itself give rise to liability on the part of the sponsoring State.

The conditions for the liability of the sponsoring State to arise are:

(a) failure to carry out its responsibilities under the Convention; and

(b) occurrence of damage.

5. Unanimously,

Replies to Question 3 submitted by the Council as follows:

The Convention requires the sponsoring State to adopt, within its legal system, laws and regulations and to take administrative measures that have two d istinct functions, namely, to ensure compliance by the contractor with its obligations and to exempt the sponsoring State from liability.

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The scope and extent of these laws and regulations and administrative measures depends on the legal system of the sponsoring State.

Such laws and regulations and administrative measures may include the establishment of enforcement mechanisms for active supervision of the activities of the sponsored contractor and for co-ordination between the activities of the sponsoring State and those of the Authority.

NOTES AND QUESTIONS

1. The ITLOS Advisory Opinion was well-received especially because all three questions were answered unanimously by the court. Was the court correct in interpreting the standard for compliance to be due diligence instead of strict liability? Was the court correct in stating that the obligations of both kinds---due diligence and direct obligations---apply equally to developed and developing states? What is the relationship between the due diligence and the direct obligations?

2. How does the standard of liability for sponsoring states differ from the standard of liability for the sponsored contractor?

3. How do you evaluate the care with which the Authority is preparing for exploitation of the resources of the deep seabed? Do you think the Authority is doing enough to protect marine ecosystems and the marine environment?

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SECTION V. Operational Ship Pollution

The safe operation of ships is comprehensively addressed by IMO conventions. The relevant IMO conventions in this regard are listed in section II of this chapter. Several IMO conventions deal specifically with various forms of operational ship pollution. Two conventions deal with particular environmental problems of shipping: (1) the International Convention on the Control of HarmfulAntifouling Systems on Ships (Antifouling Convention) (2001), which prohibits the use of harmful organotins (listed in Annex I of the convention) in antifouling paints used on ships, and (2) the International Convention for the Control and Management of Ships' Ballast Water and Sediments( Ballast Water Convention) (2004), which seeks to prevent, minimize, and ultimately eliminate the transfer of harmful aquatic organisms and pathogens through the control and management of ships' ballast water and sediments. The Antifouling Convention entered into force i n 2008; the Ballast WaterConvention is not yet in force. The United States is not a party to either convention.

The principal IMO convention dealing with operational ship pollution is the International Convention for the Prevention of Pollution from Ships ( London, 1973 and 1978), which is known as MARPOL 73/78. MARPOL consists of two types of regulations. First, technical regulations cover the design and construction of ships and their onboard equipment. For example, after the Exxon Valdez oil spill in 1989, MARPOL was amended to require double-hull construction for new oil tankers ( Regulation13F), and single-hull tankers were required to be phased out (Regulation 13G). Second, MARPOL sets out discharge standards and regulations governing the discharge of certain categories of substances from ships.

MARPOL's operational pollution standards are contained in Annexes I to VI, as follows:

Annex I: Prevention of pollution by oilEntry into force: 2 October 1983

The 1973 Convention maintained the oil discharge criteria prescribed in the 1969 amendments to the 1954 Oil Pollution Convention, without substantial changes, namely:

Operational discharges of oil from tankers are allowed only when all of the following conditions are met:

1. the total quantity of o il which a tanker may discharge in any ballast voyage whilst under way must not exceed 1/15,000 of the total cargo carrying capacity of the vessel;

2. the rate at which oil may be discharged must not exceed 30 litres per mile travelled by the ship; and

3. no discharge of any oil whatsoever must be made from the cargo spaces o f a tanker within 50 miles of the nearest land.

An oil record book is required, in which is recorded the movement of cargo oil and its residues from loading to discharging on a tank-to-tank basis.

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In addition, in the 1973 Convention, the maximum quantity of oil permitted to be discharged on a ballast voyage of new oil tankers was reduced from 1/15,000 of the cargo capacity to 1/ 30,000 of the amount of cargo earned. These criteria applied equally both to persistent (black) and non- persistent (white) oils.

As with the 1969 OILPOL amendments, the 1973 Convention recognized the "load on top" (LOT) system which had been developed by the oil industry in the 1960s. On a ballast voyage the tanker takes on ballast water (departure ballast) in dirty cargo tanks. Other tanks are washed to take on clean

ballast. The tank washings are pumped into a special slop tank. After a few days, the departure ballast settles and oil flows to the top. Clean water beneath is then decanted while new arrival ballast water is taken on. The upper layer of the departure ballast is transferred to the slop tanks. Alter further settling and decanting, the next cargo is loaded on top of the remaining oil in the slop tank, hence the term load on top.

A new and important feature of the 1973 Convention was the concept of “special areas” which are considered to be so vulnerable to pollution by a oil that oil discharges within them have been completely prohibited with minor and well-defined exceptions. The 1973 Convention identified the Mediterranean Sea, the Black Sea, and Baltic Sea, the Red Sea and the Gulfs area as special areas. All oil-carrying chips are required to be capable of operating the method of retaining oily wastes on board through the “load on top” system or for discharge to shore reception facilities.

This involves the fitting of appropriate equipment, including an oil-discharge monitoring and control system , oily-water separating equipment and a fitting system, slop tanks, sludge tanks, piping and pumping arrangements.

New oil tankers (i.e. those for which the building contract was placed after 31 December 1975) o f 70, 000 tons deadweight and above, must be fitted with segregated ballast tanks large enough to provide adequate operating draught without the need to carry ballast water in cargo oil tanks.

Secondly, new oil tankers are required to meet certain subdivision and damage stability requirements so that, in any loading conditions, they can survive after damage by collision or stranding.

The Protocol of 1978 made a number of changes to Annex I o f the parent convention. Segregated ballast tanks (SBT) are required on all new tankers of 20,000 dwt and above (in the parent convention SBTs were only required on new tankers of 70,000 dwt and above). The Protocol also required SBTs to be protectively located - that is, they must be positioned in such a way that they will help protect the cargo tanks in the event of a collision or grounding.

Another important innovation concerned crude oil washing (COW), which had been developed by the oil industry in the 1970s and offered major benefits. Under COW, tanks are washed not with water but with crude oil - the cargo itself. COW was accepted as an aitemat1ve to SBTs on existing tankers and is an additional requirement on new tankers.

For existing crude oil tankers (built before entry into force of the Protocol) a third aitemative was permissible for a period of two to four years after entry into force of MARPOL 73/78. The dedicated clean ballast tanks (CBT) system meant that certain tanks are dedicated solely to the carnage ofballast water. This was cheaper than a full SBT system since It utilized existing pumping and piping, but when the period of grace has expired other systems must be used.

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Drainage and discharge arrangements were also altered in the Protocol, regulations for improved stopping systems were introduced.

Some oil tankers operate solely in specific trades between ports which are provided with adequate reception facilities. Some others do not use water as ballast. The TSPP Conference recognized that such ships should not be subject to all MARPOL requirements and they were consequently exempted from the SBT, COW and CBT requirements. It is generally recognized that the effectiveness o f international conventions depends upon the degree to which they are obeyed and this in turn depends largely upon the extent to which they are enforced. The 1978 Protocol to MARPOL therefore introduced stricter regulations for the survey and certification of ships.

The 1992 amendments to Annex I made it mandatory for new oil tankers to have double hulls - and it brought in a phase-in schedule for existing tankers to fit double hulls, which was subsequently revised in 2001 and 2003.

Annex II: Control of pollution by noxious liquid substances

Entry into force: 6 April 1987

Annex II details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk.

Some 250 substances were evaluated and included in the list appended to the Convention. The discharge of their residues is allowed only to reception facilities until certain concentrations and conditions (which vary with the category of substances) are complied with.

In any case, no discharge of residues containing noxious substances is permitted within 12 miles of the nearest land. More stringent restrictions applied to the Baltic and Black Sea areas.

Annex III: Prevention of pollution by harmful substances in packaged form

Entry into force: 1 July 1992

The first of the convention's optional annexes. States ratifying the Convention must accept Annexes II and II but can choose not to accept the other three - hence they have taken much longer to enter into force.

Annex III contains general requirements for the issuing of detailed standards on packing, marking, labeling, documentation, stowage, quantity limitations, exceptions and notifications for preventing pollution by harmful substances.

The International Maritime Dangerous Goods (IMDG) Code has, since 1991, included marine pollutants.

Annex lV: Prevention of pollution by sewage from shipsEntry into force: 27 September 2003

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The second of the optional Annexes, Annex IV contains requirements to control pollution of the sea by sewage. A revised Annex was adopted in 2004.

Annex V: Prevention of pollution by garbage from ships

Entry into force: 31 December 1988

This deals with different types of garbage and specifies the distances from land an the manner in which they may be disposed of. The requirements are much stricter in a number of “special areas” but perhaps the most important feature of the Annex is the complete ban imposed on the dumping into the sea of all forms of plastic.

Annex VI: Prevention of Air Pollution from ships

Entry into force: 19 May 2005

The regulations in this annex, when they come into force, will set limits on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibit deliberate emissions of ozone depleting substances.

Enforcement

Any violation of the MARPOL 73/78 Convention within the jurisdiction of any Party to the Convention is punishable either under the law of that Party or under the law of he flag State. In this respect, the term “jurisdiction” in the convention should be construed in the light of international law in force at the time the Convention is applied or interpreted.

With the exception of very small vessels, ships engaged on international voyages must carry on board valid international certificates which may be accepted at foreign ports as prima facie evidence that the ship complies with the requirements of the Convention.

If, however, there are clear grounds for believing that the condition of the ship or tis equipment does not correspond substantially with the particulars of the certificate, or if the ship does not carry a valid certificate, the authority carrying out the inspection may detain the ship until it is satisfied that the ship can proceed to sea without presenting unreasonable threat of harm to the marine environment.

Under Article 17, the Parties to the Convention accept the obligation to promote, in consultation with other international bodies and with the assistance of UNEP, support for those Parties which request technical assistance for various purposes, such as training the supply of equipment, research, and combating pollution.

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INTERNATIONAL MARITIME ORGANIZATIONVessel Discharge Regulations

Annex I (oil)

TABLE IOIL TANKERS OF ALL SIZES

Control of discharge of oil from tank areas including cargo pump roomWithin special areas OR outside special areas, within 50 nautical miles (nm) from the nearest land

ANY DISCHARGES IS PROHIBITED, except clean or segregated ballast

Outside special areas, more than50 nm from the nearest land

ANY DISCHARGE IS PROHIBITED, except clean orsegregated ballast, or when:

1. the tanker is proceeding en route, and

2. the instantaneous rate of discharge of oil does not exceed 30 litres/nm, and

3. the total quantity of oil discharged into the sea does not exceed

- 1 /15,000 (for existing tankers) and/- 1 /30,000 (for new tankers)

of the total quantity of the cargo which was carried on the previous voyage, and

4. the tanker has in operation a monitoring and control system for the discharge of oil, and slop tank arrangements as required by Regulation 15.

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TABLE IIOIL TANKERS OF ALL SIZES

OTHER SHIPS OF 400 GRT AND ABOVEControl of discharge of oil from machinery spaces

Within special areas ANY DISCHARGES IS PROHIBITED, except when

5. the ship is proceeding en route, and

6. the oil content of the effluent without dilution does not exceed 15 ppm, and

7. the ship has in operation oil filtering equipment with automatic 1 5 ppm stopping device, and

8. bilge water is not mixed with oil cargo residue or cargo pump room bilges (on oil tankers)

Outside special areas ANY DISCHARGE IS PROHIBITED, except when

1. the ship is proceeding en route

2. the oil content of the effluent is less than 15 ppm, and

3. the ship has in operation an oil discharge monitoring and control systems, oily-water separating or filtering equipment of other installation required by Regulation 16, and

4. bilge water is not mixed with oil cargo residue or cargo pump room bilges (on oil tankers)

Note : Oily mixtures which are not mixed with oil cargo residue or cargo pump room bilges, and where the oil content of the effluent without dilution does not exceed 1 5 ppm may be discharge outside special areas without any additional restrictions.

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TABLE IllSHIPS BELOW 400 GRT OTHER THAN OIL TANKERSControl of discharge of oil from machinery spaces

Within special areas ANY DISCHARGES IS P ROH I BITED, except when the oil content without dilution does not exceed 15 ppm

Outside special areas ANY DISCHARGE IS PROHIBITED, except when the Flag State considers that all the following conditions are satisfied as far as practicable and reasonable:

1. the ship is proceeding en route, and

2. the oil content of the effluent is less than 15 ppm , and

3. the ship has in operation suitable equipment as required by Regulation 16

Note: Oily mixtures where the oil content of the effluent without dilution does not exceed 15 ppm may be discharged without any additional restrictions.

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Annex II (noxious liquid substances in bulk)

1. General

Division of noxious substances into 4 categories:

Category Hazard to marine resources Harm to amenities or other legitimate uses of the sea

A Major hazard Serious harm

B Hazard Harm

C Minor hazard Minor harm

D Recognizable hazard Minimal harm

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Group In all areasA, B and C

- ship is proceeding en route- minimum speed 7 knots (self-propelled) or 4 knots (not self-propelled- at least 12 nautical miles from the nearest land- discharge below the waterline- minimum water depth 25 metres

And Outside special areas Within special areas

A Maximum concentration of tank washings 0.1 percent by weight

Maximum concentration of tank washings 0.05 percent by weight

- per tank max. 1 cubic metre or 1/3,000 of the tank capacity in cubic metres

- concentration of the substance in the wake astern of the ship max. 1 ppm

- The tank has been precleaned, and the washings have been discharge to a reception facility

- concentration of the substance in the wake astern of the ship max. 1 ppm

C - per tank max. 3 cubic metres or 1/1,000 of the tank capacity in cubic metres

- concentration of the substance in the wake astern of the ship max. 10 ppm

- per tank max. 1 cubic metre or 1/3,000 of the tank capacity in cubic metres

- concentration of the substance in the wake astern of the ship max. 1 ppm

D In all areas

- Ship is proceeding en route- Minimum speed 7 or 4 knots- At least 12 nautical miles from the nearest land- Max. one part of the substance in ten parts of water

1. Discharge of cargo residues

Special Areas

- Baltic Sea- Black Sea- Antarctica

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Annex IV (sewage from ships)

In force since 27 September 2003-1 0-29

The discharge regulations in Annex IV MARPOL have been implemented

- for the Baltic Sea area under German jurisdiction by the 1st Amendment to the Ordinance for the Protection of the Baltic Sea

- and for the North Sea area under German jurisdiction by the Ordinance of the Prevention of Pollution of the North Sea by Sewage from Ships.

1. Discharge regulations

SewageFrom treatment plants Comminuted and disinfected Untreated

- treatment plant has been approved by the administration

- no visible floating solids or discoloration of surrounding water

- treatment plant has been approved by the administration

- at least 4 nautical miles from the nearest land

- retained in holding tanks- at least 12 nautical miles

from the nearest land- discharge rate approved

by the administration- ship is proceeding en

route- minimum speed 4 knots

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF TRANSPORTATION AND AIR QUALITY

EPA420-F-08-033

October 2008

INTERNATIONAL MARITIME ORGANIZATION ADOPTS PROGRAM

TO CONTROL AIR EMISSIONS FROM OCEANGOING VESSELS

What did the IMO do?The IMO adopted a comprehensive program of engine and fuel standards, detailed in amendments to Annex VI to the International Convention for the Prevention of Pollution from Ships (also called MARPOL), that closely matches a proposal submitted by EPA and its Federal partners to the IMO last year.

Like the original Annex VI program, the new standards are geographically-based. That is, ships operating in areas with air quality problems, designated as Emission Control Areas (ECAs), are required to meet tighter emission limits. Beginning in 2015, new and existing ships operating in ECAs will be required to use fuel with no more than 1,000 parts per million (ppm) sulfur, or a 98% reduction from today's global cap. Beginning in 2016 new ships operating in ECAs must also have advanced-technology engines designed to cut emissions of ozone-forming oxides of nitrogen (NOX) by roughly 80%. The new fuel standards will phase in over time beginning with an interim fuel sulfur standard in 2010. The IMO did not designate any new emission control areas in this action. Countries will need to seek such a designation in order to realize fully the benefits of this program. the EPA is working closely with all parts of the Federal Government ot prepare an application for ECA status for our coasts and will submit that application to IMO as soon as possible.

Emissions from ships operating outside of designated ECAs will be reduced through engine and fuel standards. OGVs everywhere will be required to use fuel with at most 5,000 ppm sulfur, or a 90% reduction from today’s global cap. This fuel standard will begin in 2020, pending a fuel availability review in 2018. The engine standards will apply to new engines in 2011, and to existing engines as certified low-emission kits become available, beginning in 2011.

What ships are affected?The new international standards contained in the Annex VI amendments apply to all new marine diesel engines above 130 kW (175 hp) and all marine diesel fuels. For vessels flagged and

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registered in the United States. EPA’s dean diesel engine and fuel standards (www.epa.gov/otaq/marine.htm#2008final) will apply for all but the very largest new marine diesel engines (those above 30 liters per cylinder displacement). For engines above 30 liters per cylinder and for residual fuels, the new Annex VI standards will apply.

Most importantly, the new international standards will apply to all new marine diesel engines and fuels on foreign vessels that operate near America’s coasts and ports. These foreign flagged vessels account for the vast majority of OGV traffic in the U.S.

How do oceangoing vessels harm U.S. air quality?Oceangoing vessels dock at over a hundred ports in the U.S., including some along navigable waterways in the nation’s interior. More than 40 of these ports are in metropolitan areas that do not meet the National Ambient Air Quality Standards (www.epa.gov/air/criteria.html). These vessels also travel along our populated coasts and waterways. Most have, at best, very modest air pollution controls and many have no controls at all, emitting pollutants at levels (measured in grams per horsepower-hour) typical of highway trucks built before the 1980s. Furthermore, these emissions of particulate matter (PM), sulfur oxides (“Sox), hydrocarbons, and NOx can degrade air quality for people living hundreds of miles downwind.

We have estimated that in 2001 marine diesel engines with per-cylinder displacement o f30 liters or more (a group roughly corresponding to the engines covered by the new IMO standards) contributed 6% of the NOx coming from all mobile sources in the U.S., as well as 10% of the PM, and 40% of the Sox. We further estimate that without new emission controls, these contributions would have increased by 2030 to 34% of the NOx coming from all mobile sources in the U.S., 45% of eh PM, and 94% of the Sox. Percent contributions from these marine engines in some port cities with poor air quality range much higher.

What will this program mean for the environment?The final ECA standards will achieve reductions from current Tier 1 engine emission levels (www.epa.gov/otaq/oceanvessels.htm=tier1) of 80%, 85%, and 95% for NOx, PM, and SOx, respectively. Considering the large contribution OGVs make to U.S. air quality problems, especially in port cities, the health benefits from these emission reductions will be very substantial. We anticipate many billions of dollars of health and welfare benefits in the U.S. from this program if an BCA designation is made for U.S. coastlines.

Why is the IMO process important?In today’s global economy, the number of ships doing business at U.S. ports is increasing at a rapid rate. Very few of these ships are U.S.-flagged, and the fuel they burn when entering U.S. waters has typically been obtained elsewhere, at ports all over the world. This new IMO program directly addresses emissions from these foreign-flagged vessels. It requires them to meet stringent standards whenever they operate in designated ECAs.

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What are the new standards?The ECA fuel sulfur standards are:- 10,000 ppm starting July 2010.- 1,000 ppm starting January 2015.

The global fuel sulfur standards are:- 35,000 ppm starting January 2012.- 5,000 ppm starting January 2020 (subject to a review in 2018, but no delay past 2025).

The engine emission standards vary with rated engine speed according to a formula. See “Where can I get more information” below for details. Percent reductions from the existing Tier 1 standards are provided below:

The ECA engine emission standards are:- Tier 3 for new engines: 80% NOx reduction starting January 2016 (based on the use of

advanced catalytic after treatment systems).

The global engine emission standards are:- Tier 2 for new engines: 20% NOx reduction starting January 2011.- Tier 1 for existing engines: 15-20% NOx reduction from current uncontrolled levels.

Manufactures may begin certifying systems (sets of upgraded replacement parts) starting in 2010. Installation will occur at a vessel’s first “renewal survey” following the Tier 1 certification applicable to the vessel’s engines. A renewal survey is a major inspection and maintenance activity, typically done every 5 years.

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PROBLEM 7-6

ENFORCING MARPOL SHIP POLLUTION STANDARDS

The cargo ship Flying Dutchman has come into port in Nation A, about one month after leaving its home port of Genoa, Italy and after making port calls in Kingston, Jamaica and Havana, Cuba. The Flying Dutchman is owned by the Greek Shipping Company, based in Athens, Greece, and is under charter to the Latina Shipping Company based in Genoa. The master of the Flying Dutchman is Greek, an employee of the Greek Shipping Company, and the crew members carry Indonesian passports. The FlyingDutchman is registered and flies the flag of Liberia. Nation A is a party to the UNCLOS 1982 and MARPOL 73/78.

A tip has come to Coast Guard in Nation A that the Flying Dutchman has discharged oil, raw sewage, and garbage in violation of MARPOL standards. It is understood that the master routinely falsifies entries on the ship's oil record book and other documents to conceal the violations.

One hour after the Flying Dutchman entered port, the authorities of Nation A arrested the vessel as well as the master and the crewmembers, charging them with violating international pollution standards as implemented in the national laws of Nation A. The violations carry both possible criminal and civil penalties.

1. UNCLOS provides for enforcement of international pollution standards by the flag state (Article 217), the port state (Article 218), and the coastal state (Article 220). Problem 7-6 concerns port state enforcement of MARPOL standards. Under UNCLOS Article 218, does Nation A have authority to enforce MARPOL standards under international law? Does Nation A have authority to institute proceeding concerning discharges of oil and other substances in the EEZ or territorial sea of Jamaica or Cuba ? Does Nation A have any obligation to notify authorities in Liberia (the flag state) and other states such as Jamaica and Cuba?

2. In the proceedings instituted by Nation A , what are its obligations under international law? Consider UNCLOS Articles 223 and 231.

3. May Nation A impose criminal penalties such as imprisonment against the master and crew members of the Flying Dutchman ? See UNCLOS Article 230.

4. Can authorities of Nation A detain the Flying Dutchman in port indefinitely? Can the ship be confiscated? Is there an obligation to release the master and crew members upon the posting of a reasonable bond? See UNCLOS Article 226.

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5. Suppose the flag state, Liberia, institutes proceedings against the Flying Dutchman in Monrovia, Liberia. What are the obligations of Nation A? See UNCLOS Article 228.

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NOTE

MARPOL 73/78 has been amended some thirty times since 1978. Amendments may be easily adopted using a "tacit acceptance" procedure whereby the amendments enter into force automatically on a specific date unless an agreed number of states object by an agreed date. 149 states, including the United States, are parties to MARPOL 73/78, although the US has not accepted optional Annex IV. The domestic law whereby the US has implemented MARPOL 73/78 is the Act to Prevent Pollution from Ships, 33 USC sees. 1901 et seq.

MARPOL is aggressively enforced by the US Coast Guard, as is shown by the following case.

UNITED STATES v. PENA

United States Court of Appeals for the Eleventh Circuit

684 F.3d 1137 (2012)

Before DUBINA, Chief Judge, ANDERSON and KLEINFELD, Circuit Judges.

ANDERSON, Circuit Judge:

This case presents an issue of first impression in this Circuit and, to the best of our knowledge, in the country. We are asked to determine whether the United States has jurisdiction to prosecute a nominated surveyor—i.e., a person who conducts a MARPOL survey on behalf of a foreign nation—for knowingly violating the MARPOL treaty while aboard a foreign vessel docked in the United States. Defendant 1 Hugo Pena argues that under MARPOL it is the responsibility of the Flag State to conduct surveys and issue certificates, and therefore only the Flag State has jurisdiction to prosecute a surveyor for failure to conduct a proper MARPOL survey. We disagree. After thorough review of the relevant treaty and U.S. law, we hold that the United States has jurisdiction to prosecute surveyors for MARPOL violations committed in U.S. ports. Furthermore, under our lenient standards of review for issues raised for the first time on appeal, we find no reversible error in the indictment or jury instructions. Finally, we affirm the district court’s denial of judgment of acquittal. Accordingly, we affirm Pena’s conviction.

I. BACKGROUND

A. Background LawMARPOL is the common name for the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, as modified by the Protocol of 1978, opened for signature Feb. 17, 1978. 1340 U.N.T.S. 62 [hereinafter MARPOL]. This multilateral maritime treaty aims “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.” Id. at 184. MARPOL is not a self-executing

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treaty; instead, each party agrees to “give effect” to it by establishing rules for ships that fly its flag, certifying that such ships comply with the treaty rules, and sanctioning those ships that violate the treaty. MARPOL arts. 1(1), 4(1), 5(1); see United States v. Ionia Mgmt. S.A., 555 F.3d 303, 307 (2d Cir. 2009). As relevant to this case, both the United States and the Republic of Panama are signatories to the treaty. The Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901 et seq., implements MARPOL and authorizes the U.S. Coast Guard to issue regulations implementing the requirements of the treaty. See 33 U.S.C. § 1903(c)(1); 33 C.F.R. § 151.01 et seq.

Annex I to MARPOL sets forth regulations for the prevention of pollution by oil from ships. Annex I prohibits a ship from dumping its bilge water2 into the ocean unless the oil content of that water has been reduced to less than 15 parts per million (“ppm”). Reg. 15.2, Resolution MEPC.117(52), Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, Oct. 15, 2004 (entered into force Jan. 1, 2007) [hereinafter Annex I]. To reduce the oil content to permissible levels, the bilge water must be pumped through a piece of equipment that filters the oil out of the water, commonly called an “oily water separator.” See id. reg. 14.6. Annex I requires all ships of 400 gross tonnage and above to have a functioning oily water separator and to use it to filter the bilge water before it is discharged into the ocean. Id. regs. 14.1, 15.2. If a ship’s bilge water is not filtered through an oily water separator to reduce the oil content to permissible levels, then the bilge water must be collected and retained in tanks on the ship and discharged at a proper facility once the ship arrives in port. Id. reg. 15.9.

It is the responsibility of the “Flag State” to certify that ships sailing under its authority (or “flag”) comply with international laws such as MARPOL. Id. regs. 6.3.1, 6.3.4. With respect to the prevention of oil pollution, the Flag State conducts an inspection, or “survey,” and certifies the ship’s compliance by issuing an International Oil Pollution Prevention (“IOPP”) Certificate. Id. regs. 6.1, 6.3.1, 7.

The Flag State may delegate the authority to conduct the survey and to issue the IOPP Certificate to a recognized “classification society,” which is an organization that inspects the vessels and issues the certificates on the Flag State’s behalf. Id. reg. 6.3.1. The person employed by the classification society to conduct the survey and issue the certificate on behalf of the Flag State is known as a “surveyor.” Id.

A surveyor nominated by a foreign nation has the following duties under MARPOL. First, when conducting 3 an “initial survey” of a ship, he shall conduct a complete survey of the structure and equipment “such as to ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I. Id. reg. 6.1.1. Similarly, when conducting a “renewal survey,” he shall “ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I. Id. reg. 6.1.2. After conducting an initial or renewal survey in accordance with the provisions of Regulation 6, the surveyor shall issue or endorse an IOPP Certificate. Id. reg. 7. When the nominated surveyor determines that the condition of the ship does not correspond to the IOPP Certificate or is not fit to go to sea, he shall immediately ensure that corrective action is taken and shall in due course notify the Flag State. Id. reg. 6.3.3. If corrective action is not taken, he shall withdraw the IOPP Certificate and notify the Flag

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State as well as the authorities of the Port State. Id. Upon receiving, from the master or owner of a ship, a report of an accident or defect, the nominated surveyor shall investigate to determine if a survey is necessary and shall ascertain that the master or owner has also reported to the appropriate authorities of the Port State. Id. reg. 6.4.3.

The IOPP Certificate must be maintained by the ship’s master on board the vessel. See MARPOL art. 5(2). If a ship does not have a valid IOPP Certificate on board, it is not permitted to set sail or enter the ports of other signatory nations. See id.

“Port States”—nations visited by commercial ships—may inspect the vessels entering their waters and ports to ensure compliance with MARPOL regulations. Id. arts. 5(2), 6(2). An inspection of a foreign vessel by a Port State is called a “port state control examination.” In the United States, the Coast Guard is charged with conducting port state control examinations to ensure that all commercial vessels entering the United States comply with MARPOL. 33 C.F.R. § 151.23.

B. Factual and Procedural History

On May 4, 2010, the Coast Guard conducted an unannounced port state control examination of the motor vessel Island Express I (“Island Express”), which was docked at a port just south of Fort Lauderdale, Florida. The ship was in the process of changing its flag from St. Kitts and Nevis to Panama. The Coast Guard inspected the ship’s documents, including its IOPP Certificate. The IOPP Certificate, dated April 15, 2010, stated that it was issued in Fort Lauderdale, Florida, by the classification society Universal Shipping Bureau on behalf of the Republic of Panama. Hugo Pena was the “attending surveyor” who conducted the April 15, 2010, survey and signed the IOPP Certificate.

As stated on the top of the Certificate itself, Pena issued the IOPP Certificate “under the provisions of” MARPOL. On the first page of the IOPP Certificate, Pena expressly certified: (1) that the ship had been surveyed in accordance with Regulation 44 of Annex I of MARPOL; and (2) that the survey showed that the structure, equipment, systems, fittings, arrangement, and material of the ship and the condition thereof were in all respects satisfactory and that the ship complied with the applicable requirements of Annex I. Pena further certified that the Island Express was equipped with “[o]il filtering (15 ppm) equipment with alarm and automatic stopping device.” Finally, Pena certified that the IOPP Certificate was “correct in all respects.” Pena did not note any conditions or deficiencies on the IOPP Certificate indicating any violations on the Island Express.

Upon further inspection, the Coast Guard examiner discovered that the oily water separator did not operate at all and that the ship did not have a bilge holding tank for storing its bilge water for later disposal at a port facility. Instead, the ship had a makeshift system of pumps and rubber tubes designed to pump oily waste from the ship’s bilge directly up to the main deck of the ship, where it could flow overboard into the ocean. Although this system of portable pumps and tubes was not part of the ship’s standard equipment or an approved modification, Pena made no mention of the pumps and tubing in the IOPP Certificate that he had issued just nineteen days earlier. Furthermore, Pena had not attached

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any conditions to the IOPP Certificate requiring the repair of the oily water separator or the proper management of the ship’s bilge water.

When questioned by the Coast Guard examiners, Pena admitted that he had not tested the oily water separator when he conducted the April 15 survey because the ship’s chief engineer had told him that it did not work. Pena further admitted that he had authorized the chief engineer to place portable pumps in the bilge and pump bilge water directly overboard, but only in an emergency. Finally, he acknowledged that the only condition he had issued for the Island Express was for an unrelated crack in the forward bulkhead.

Pena was indicted for: (1) conspiring with the owner and operators of the Island Express to knowingly fail to maintain an accurate oil record book on board the vessel, in violation of 33 U.S.C. § 1908(a), 33 C.F.R. § 151.25, and MARPOL, Annex I, Regulation 17 (“Count 1”); (2) knowingly violating MARPOL by failing to conduct a complete survey of the Island Express, in violation of 33 U.S.C. § 1908(a) and MARPOL, Annex 1, Regulation 6 (“Count 27”); and (3) in a matter within the jurisdiction of the United States Coast Guard, knowingly and willfully making a materially false, fictitious, and fraudulent statement, by certifying that the structure, equipment, systems, fittings, arrangements, and material of the Island Express and its condition were in compliance with Annex I of MARPOL, in violation of 18 U.S.C. § 1001(a)(2) (“Count 28”).

At trial, the district court granted Pena’s motion for judgment of acquittal on the conspiracy count but denied the motion as to Counts 27 and 28. The jury found Pena guilty of Counts 27 and 28, and the district court sentenced Pena to a term of five years’ probation. Pena now appeals that conviction, arguing: (1) that the United States lacks jurisdiction to prosecute Pena for failure to conduct a MARPOL survey of a Panamanian-flagged vessel; (2) that there is no crime under U.S. law for knowingly violating MARPOL by failing to conduct a complete survey of a vessel, because there is no legal duty to do so; (3) that Count 27 of the indictment was fundamentally defective because it failed to allege that Pena had alegal duty to conduct a MARPOL survey; (4) that the district court’s jury instructions pertaining to Count 27 amounted to plain error; (5) that the district court should have granted Pena’s motion for judgment of acquittal on Count 27; and (6) that the district court should have granted his motion for judgment of acquittal on Count 28.

II. DISCUSSION

A. JurisdictionPena argues that under MARPOL it is the responsibility of the Flag State to conduct surveys and to issue IOPP Certificates, and therefore only the Flag State has jurisdiction to prosecute a surveyor for failure to conduct a proper MARPOL survey. According to Pena’s argument, Panama had sole jurisdiction to prosecute Pena because the Island Express was a Panamanian-flagged vessel, and therefore, the United States had no jurisdiction to prosecute Pena for failing to conduct a complete MARPOL survey of the Island Express. We disagree.

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“[D]istrict courts . . . have original jurisdiction . . . [over] all offenses against the laws of the United States.” 18 U.S.C. § 3231. Where the Government charges a defendant with an offense against the laws of the United States, the district court has authority to adjudicate whether the defendant violated that law, unless there is a separate limit on subject matter jurisdiction. United States v. De La Garza, 516 F.3d 1266, 1271 (11th Cir. 2008). “Congress . . . can create additional statutory hurdles to a court’s subject matter jurisdiction through separate jurisdictional provisions found in the substantive criminal statute itself under which a case is being prosecuted.” Unites States v. Tinoco, 304 F.3d 1088, 1104 n.18 (11th Cir. 2002).

The Government charged Pena with an offense against a law of the United States. Specifically, Pena was charged with a violation of the APPS, 33 U.S.C. § 1908(a), which provides: “A person who knowingly violates the MARPOL Protocol, . . . [the APPS], or the regulations issued thereunder commits a class Dfelony.” 33 U.S.C. § 1908(a). Thus, the district court had jurisdiction to adjudicate the offense unless there was a separate limit on subject matter jurisdiction.

Congress created two express limitations to the application of the APPS. First, the APPS and its implementing regulations apply to violations of MARPOL occurring on foreign-flagged ships only “while [the ships are] in the navigable waters of the United States.” 33 U.S.C. § 1902(a)(2); see Ionia Mgmt., 555 F.3d at 307; United States v. Abrogar, 459 F.3d 430, 435 (3d Cir. 2006) (finding that “under the APPS and accompanying regulations, Congress and the Coast Guard created criminal liability for foreign vessels and personnel only for those substantive violations of MARPOL that occur in U.S. ports or waters”). It is undisputed that the conduct at issue in this case occurred at a port in Florida. Thus, the first limitation provides no bar to jurisdiction in this case. The second limitation imposed by Congress is that “[a]ny action taken under [the APPS] shall be taken in accordance with international law.” 33 U.S.C. § 1912. As we explain below, the U.S. government’s jurisdiction to prosecute violations of domestic law committed in U.S. ports is in accordance with well-established international law. See United States v. Jho, 534 F.3d 398, 409 (5th Cir. 2008) (“Neither [the United Nations Convention on the Law of the Seas] nor the law of the flag doctrine encroaches on the well-settled rule that a sovereign may exercise jurisdiction to prosecute violations of its criminal laws committed in its ports.”).

A foreign commercial ship at a U.S. port is subject to the jurisdiction of the United States. Mali v. Keeper of the Common Jail, 120 U.S. 1, 11, 7 S. Ct. 385, 387 (1887); see Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122, 43 S. Ct. 504, 507 (1923) (noting that it is “settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes . . . the ports”). “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Cunard, 262 U.S. at 124, 43 S. Ct. at 507 (quotation omitted). “All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself.” Id., 43 S. Ct. at 508 (quotation omitted). The United States “may out of considerations of public policy choose to forego the exertion of its jurisdiction or to exert the same in only a limited way, but this is a matter resting solely within its discretion.” Id., 43 S. Ct. at 507. Thus, the United States “has exclusive jurisdiction to punish offenses against its law committed within its borders, unless it expressly or impliedly consents to surrender itsjurisdiction.” Wilson v. Girard, 354 U.S. 525, 529, 77 S. Ct. 1409, 1412 (1957) (per curiam).

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Jurisdiction over foreign vessels in port is frequently limited by treaty agreement. Restatement (Third) of Foreign Relations Law § 512 cmt. 5 (1987); see Mali, 120 U.S. at 11, 7 S. Ct. at 387 (noting that it is “part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement”). Article 4 of the MARPOL Convention makes clear that, for violations that occur within the jurisdiction of the Port State, the Port State and the Flag State have concurrent jurisdiction. Article 4(1) provides: “Any violation of the requirements of the present Convention shall be prohibited and sanctions shall be established therefor under the law of the Administration6 of the ship concerned wherever the violation occurs.” 1340 U.N.T.S. at 185. Article 4(2) of the Convention provides:

Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefor under the law of that Party. Whenever such a violation occurs, that Party shall either: (a) Cause proceedings to be taken in accordance with its laws; or (b) Furnish to the Administration of the ship such information and evidence as may be in its possession that a violation has occurred.

Id. at 186. Therefore, by signing the MARPOL treaty, the United States consented to surrender its exclusive jurisdiction over violations within its ports, but it still maintained concurrent jurisdiction to sanction violations of the treaty according to U.S. law.

33 U.S.C. § 1907(a) and (b) of the APPS essentially codify the provisions of Articles 4(1) and 4(2), and § 1908(a) establishes the sanctions required in Article 4. Section 1907(a) makes it “unlawful to act in violation of the MARPOL Protocol” and requires the Secretary7 to “cooperate with other parties to the MARPOL Protocol . . . in the detection of violations and in enforcement of the MARPOL Protocol”; to “use all appropriate and practical measures of detection and environmental monitoring”; and to “establish adequate procedures for reporting violations and accumulating evidence.” 33 U.S.C. § 1907(a). Section 1907(b) further provides: “Upon receipt of evidence that a violation has occurred, theSecretary shall cause the matter to be investigated. . . . Upon completion of the investigation, the Secretary shall take the action required by the MARPOL Protocol . . . and whatever further action he considers appropriate under the circumstances.” Id. § 1907(b). We find nothing in Article 4 or the APPS that provides express or implied consent to surrender the United States’ concurrent jurisdiction overviolations of the APPS occurring on foreign ships while docked at U.S. ports. See Wilson, 354 U.S. at 529, 77 S. Ct. at 1412.

Pursuant to Article 4 of MARPOL, the United States shares concurrent jurisdiction with the Flag State over MARPOL violations occurring on foreignflagged ships in U.S. ports. Furthermore, 18 U.S.C. § 3231 and 33 U.S.C. §§ 1907 and 1908 give U.S. district courts jurisdiction over violations of MARPOL committed on foreign-flagged ships in U.S. ports, and Congress has neither explicitly nor implicitly surrendered complete jurisdiction to the Flag State. Thus, we conclude that the United States had

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jurisdiction to prosecute Pena, a surveyor of a foreign-flagged ship, for a knowing violation of MARPOL committed on a foreign-flagged ship at a U.S. port.

B. Sufficiency of the Indictment

We review de novo the sufficiency of an indictment. United States v. Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010). Substantively, for an indictment to be sufficient, it must: (1) present the essential elements of the charged offense; (2) provide the accused notice of the charge he must defend against; and (3) enable the accused to rely upon any judgment under the indictment for double jeopardypurposes. United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002). “In determining whether an indictment is sufficient, we read it as a whole and give it a common sense construction.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam) (quotations omitted). “A criminal conviction will not be upheld if the indictment upon which it is based does not set forth the essential elements of the offense.” United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). “If an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.” Id. at 1325.

However, when a defendant challenges the adequacy of an indictment for the first time on appeal, “this Court must find the indictment sufficient unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” United States v. Gray, 260 F.3d 1267, 1282 (11th Cir. 2001) (quotations omitted). Thus, in some instances, an element may be inferred from the express allegations of the indictment. Id. at 1283. “Practical, rather than technical, considerations govern the validity of an indictment. Minor deficiencies that do not prejudice the defendant will not prompt this court to reverse a conviction.” United States v. Adams, 83 F.3d 1371, 1375 (11th Cir. 1996) (per curiam) (quotations and alteration omitted). Where the defendant suffers no actual prejudice as a result of the indictment, and the indictment provides facts and the specific statute under which the defendant is charged, the court will find the indictment sufficient. Id.

We readily conclude that Pena suffered no actual prejudice as a result of the indictment. Pena argues on appeal that Count 27 of the indictment was insufficient because it failed to allege that Pena had a legal duty to conduct a complete survey of the vessel. We disagree. The indictment was sufficient to charge Pena with the offense for which he was convicted, especially in light of our lenient standard of review for sufficiency challenges raised for the first time on appeal. Count 27 alleges that Pena knowingly violated MARPOL by failing to conduct a survey, which necessarily implies that he had a duty to conduct the survey in the first place. Moreover, it is clear from the references to MARPOL and Regulation 6, and from the context revealed by other allegations of the indictment,8 that Count 27 charges Pena with failing to conduct the survey that is required prior to issuing the IOPP Certificate.

Pena further argues that Count 27 of the indictment is defective because it alleged the wrong standard for a survey conducted due to a change of flags under Annex 1, Regulation 10.9.3. Pena argues that although Count 27 charges him with failure to conduct a “complete survey . . . such as to ensure that the structure, systems, arrangements, and material of the ship fully complied with MARPOL,” such a survey

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is only required for the initial MARPOL survey. He contends that, for a change of flags, Regulation 10.9.3 requires only compliance with Regulations 6.4.1 and 6.4.2, which do not require a complete survey.

We find Pena’s argument wholly without merit. The owner of the vessel was in the process of changing its flag to that of Panama. In such circumstance, Regulation 10.9.3 provides that the prior certification ceases to be valid, that a “new certificate” has to be issued, and that before issuing the new certificate the Flag State must be fully satisfied “that the ship is in compliance with the requirements of [R]egulations 6.4.1 and 6.4.2 of this Annex.” Annex I reg. 10.9.3. Because the original IOPP Certificate becomes invalid upon the re-flagging of a ship, a new IOPP Certificate must be issued. Regulation 7 prescribes the requirements for the issuance of an IOPP Certificate. Therefore, a surveyor issuing a new certificate upon the re-flagging of a ship must comply with Regulation 7, in addition to Regulations 6.4.1 and 6.4.2.

Regulation 7.1 provides that an IOPP Certificate shall be issued “after an initial or renewal survey in accordance with the provisions of [R]egulation 6 of this Annex.” Id. reg. 7.1. In other words, Regulation 7 expressly provides that any certificate—therefore including the new certificate required by Regulation 10.9.3 upon re-flagging—may only be issued after either an initial or a renewal survey in accordance with Regulation 6. Thus, a surveyor must conduct either an initial or a renewal survey prior to issuing a new IOPP Certificate to a newly-flagged ship. Either type of survey “shall be such as to ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicablerequirements of this Annex.” Id. regs. 6.1.1, 6.1.2. Therefore, prior to issuing an IOPP Certificate to a re-flagged vessel, a surveyor must conduct a survey that is “such as to ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I of MARPOL. Id. This, of course, is the precise language of Count 27 (which tracked the language of Regulations 6.1.1 and 6.1.2). Thus, Pena’s argument that Count 27 is defective is wholly without merit.

Although we believe that the above interpretation is the most plausible construction of the regulations, because of our lenient standard of review we are not required to definitively establish the precise interpretation of Regulation 10.9.3 in this case. For the reasons that follow, even if Regulation 10.9.3 were construed as requiring compliance with only Regulations 6.4.1 and 6.4.2, under the narrow language of those regulations, the indictment would not be “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” Gray, 260 F.3d at 1282.

Regulation 10.9.3 provides, in pertinent part:

A certificate issued under [R]egulation 7 . . . shall cease to be valid . . . upon transfer of the ship to the flag of another State. A new certificate shall only be issued when the Government issuing the new certificate is fully satisfied that the ship is in compliance with the requirements of [R]egulations 6.4.1 and 6.4.2 of this Annex.

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Annex I reg. 10.9.3 (emphasis added). Regulation 6.4.1 provides:

The condition of the ship and its equipment shall be maintained to conform with the provisions of the present Convention to ensure that the ship in all respects will remain fit to proceed to sea without presenting an unreasonable threat of harm to the marine environment.

Thus, a nominated surveyor—who issues the IOPP Certificate on behalf of “the Government issuing the new certificate”—must be “fully satisfied,” id. reg. 10.9.3, that “the ship and its equipment . . . conform with the provisions of [Annex I] to ensure that the ship in all respects will remain fit to proceed to sea without presenting an unreasonable threat of harm to the marine environment,” id. reg. 6.4.1. Under MARPOL, the only way for a surveyor to be “fully satisfied” that the ship conforms with the provisions of Annex I is to conduct a survey as described in Regulation 6.1.

Indeed, this is even clearer from Regulation 6.4.2, the requirements of which also must be met under the narrow language of Regulation 10.9.3. Regulation 6.4.2 specifically references the survey described in Regulation 6.1. Regulation 6.4.2 provides:

After any survey of the ship under paragraph 1 of this regulation has been completed [i.e., the survey described in Regulation 6.1], no change shall be made in the structure, equipment, systems, fittings, arrangements or material covered by the survey, without the sanction of the Administration, except the direct replacement of such equipment and fittings.

Again, the only way to be “fully satisfied” that there has been no change in the “structure, equipment, systems, fittings, arrangements or material” of the re-flagged vessel is to conduct a survey of those parts of the vessel, the very parts required under Regulation 6.1 to be surveyed, and the very parts Pena was charged in the indictment with having failed to survey. In other words, Regulation 10.9.3’s reference to Regulation 6.4.2, which in turn references Regulation 6.1, indicates that a survey in compliance with Regulation 6.1 must be performed upon the reflagging of a ship. Thus, even if the narrow language of Regulation 10.9.3—independent of Regulation 7—solely governs the issuance of an IOPP Certificate upon the re-flagging of a vessel, the survey requirements of Regulation 6 must still be performed prior to issuing the IOPP Certificate.

Because Pena did not challenge the indictment prior to this appeal, we must find the indictment sufficient “unless it is so defective that it does not, by any reasonable construction, charge an offense for which” Pena was convicted. Gray, 260 F.3d at 1282. Under either reading of the treaty described above—that is, that the re-flagging of a ship is governed by Regulations 10.9.3, 7, and 6; or that the reflagging is governed only by the narrow language of Regulations 10.9.3, 6.4.1, and 6.4.2—a surveyor is required to conduct a survey of the ship such as to ensure that the ship fully complies with MARPOL. The indictment charged Pena with failing to conduct a survey “such as to ensure that the structure, equipment, systems, arrangements, and material of the ship fully complied with MARPOL, in violation of

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[33 U.S.C. § 1908(a)] and MARPOL, Annex I, Regulation 6.” We readily conclude that, under our lenient standard of review, the indictment was sufficient.

[The Court's discussion of the Jury Instruction and the Denial of Judgment of Acquittal on Counts 27 and28 are omitted]

NOTES AND QUESTIONS

1. MARPOL enforcement. MARPOL and APPS standards apply to US-flag ships anywhere in the world, but enforcement against foreign-flag ships is based on coast-state and port-state enforcement for substantial violations of MARPOL that occur in US ports or waters. In cases of discharges in violation of MARPOL by foreign-flag vessels, it may be difficult to prove exactly where the discharge took place and if it occurred in an area subject to US jurisdiction. See generally, United States v. Abrogar, 459 F. 3d 430, 435 (3d Cir. 2006). In order to clear this hurdle, MARPOL offenses by foreign-flag vessels are typically prosecuted as record-keeping violations. If such discharges occurred and they were not properly logged in the ship's Oil Record Book (ORB), criminal liability may attach pursuant to 33 USC sec. 1908(a). A foreign-flag ship's ORB must not be knowingly inaccurate upon entering the ports or navigable waters of the United States . See United States v. Ionia Management, S.A., 555 F.3d 303 (2d Cir. 2009). In thePena Case, criminal liability attached to the surveyor employed by the foreign-flag vessel. Is this good policy, or should liability be based only upon finding a direct violation of a MARPOL effluent standard?

2. Enforcement against foreign shipowners. In cases involving foreign-flag ships, the shipowners are typically located outside the US. Is it fair to arrest and prosecute the master or members of the crew, who may be poorly educated and have meager financial means, while the foreign shipowner cannot be brought before the court? In fact, the APPS also permits civil penalties to be levied against the vessel and shipowner, and the vessel in question may be arrested and kept in port pending payment of the fines levied. Moreover, the Coast Guard may arrest the ship and the crewmembers and require them to stay in port indefinitely pending investigation of the incident. This will be quite costly to the foreign shipowners. In Giuseppe Bottigliere Shipping Co. S.P.A. v. United States, 843 F.Supp. 2d (S.D. Ala. 2012), the Coast Guard discovered a "magic pipe" aboard an Italian-owned cargo vessel arrived at the port of Mobile, Alabama, and arrested the ship and the crew, pending its ongoing investigation of illegal activity. The Coast Guard delivered a letter to the vessel stating that "there is reasonable cause to believe that the vessel, its owner, operator, person in charge, or crew members may be subject to a fine or criminal penalty" and further stated that "when [our] investigation is com plete, we will request that CBP [US Customs and Border Protection] grant departure clearance for the vessel." (I bid. at 1244).This detention of the vessel cost the owners $15,000 per day in lost hire as well as the wages and expenses of the idle crewmembers during the time for investigation. What can the shipowner do to regain its ship? Under APPS section 1908(e), clearance may be granted for the vessel under investigation upon the filing of a bond or other surety. In the Bottigliere Case, the Coast Guard not only required a bond in the amount of $700,000, but also required the shipowner to guarantee payment of the wages and hotel expenses of the crew members during the ongoing investigation of the matter. The shipowner regarded these terms to be unreasonable, but they were upheld by the court, which outlined the

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shipowner's options as follows: (1) "accede to the demands of the Coast Guard, even though it thinks them unreasonable"; (2) "request reconsideration and/or appeal the surety agreement terms"; or (3) "provide the Coast Guard and Attorney General with the 60-day noted for judicial review under

33 USC sec 1910(b)(1) and initiate judicial review proceedings under the APPS, with a view to seeking relief ... and/or recovering damages under section 1904(h) for what it perceives as the unreasonable detention or delay of the vessel." (Ibid. at 1253 ). How realistic are these options?

3 . Discharge of sewage from vessels. Although the United· States is not a party to MARPOL Annex IV, the United States regulates the discharge of sewage from vessels under section 312 of the US Clean Water Act, 33 USC sec. 1322. The regulations for marine sanitation devices (MSDs) are contained in 33 CFR Part 159. Under these provisions different marine sanitation devices are specified for different categories of vessels. Both commercial and recreational vessels with installed toilets must comply with specified standards for MSDs that are designed either to hold sewage for shore-based disposal or to treat sewage prior to discharge. In addition, the Coast Guard enforces MARPOL Annex IV standards against foreign vessels in US ports or waters. USflagged ships that call in ports abroad should have a certificate demonstrating compliance with Annex IV to avoid possible port state detention while abroad. See US Coast Guard Navigation and Vessel Inspection Circular (NVIC) No. 1-091, on-US voluntary compliance with the revised MARPOL Annex IV effluent and performance standards that entered into force January 1, 2010.

4. Garbage and plastics. MARPOL Annex V requires every vessel of 12 meters or more to display instructions to inform the ship's crew and passengers regarding garbage disposal requirements. Garbage on ships in classified into six categories: plastics; floating dunnage, lining and packing material ; ground-down paper products, rags, glass, metal bottles, and crockery; food waste; incinerator ash; and normal paper products, rags, oily rags and metal scrap. Annex IV prohibits disposal of plastic anywhere at sea. No form of garbage may be disposed in coastal areas or designated special areas. Special areas include the Mediterranean Sea, the Baltic Sea, the Black Sea, the Gulf Areas, the Antarctic Area, the Red Sea Area, the North Sea Area, and the Wider Caribbean Region. Annex V requires governments to provide facilities at ports and terminals for the reception of garbage. The requirements of MARPOL Annex V that came into effect on January 1, 2013, are summarized in the following table:

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SUMMARY OF RESTRICTIONS TO THE DISCHARGE OF GARBAGE INTO THE SEA UNDER REGULATIONS 4, 5 AND 6 OF MARPOL ANNEX V (extract from resolution MEPC 219(63))

Garbage type1

All ships except platforms4Offshore platforms

located more than 12 nm from nearest land

and ships when alongside or within 500

metres of such

platform4

regulations5

Outside special areas

Regulation4

(Distances are from the nearest

land)

Within special areas

Regulation6

(Distances are from nearest land or nearest ice-shelf)

Food waste comminuted or

ground2

> 3 nm, en route and as far as practicable

> 12 nm, en route and

as far as practicable3 Discharge permitted

Food waste comminuted or ground

> 12 nm, en route and as far as practicable Discharge prohibited Discharge prohibited

Cargo residues 5,6

not contained in washwater

> 12 nm, en route and as far as practicable

Discharge permitted Discharge permitted

Cargo residues 5,6

contained in washwater

> 12 nm, en route and as far as practicable

(subject to conditions in regulation 6.1.2)

Discharge permitted

Cleaning agents and

additives6

contained in cargo hold washwater

Discharge permitted

> 12 nm, en route and as far as practicable

(subject to conditions in regulation 6.1.2)

Discharge permittedCleaning agents and

additives6

in deck and external surfaces

washwater

Discharge permitted

Animal Carcasses (should be split or

otherwise treated to ensure the carcasses will sink immediately)

Must be en route and as far from the nearest

land as possible. Should be > 100 nm and

maximum water depth

Discharge permitted Discharge permitted

All other garbage including plastics,

synthetic ropes, fishing gear, plastic garbage

bags, incinerator ashes, clinkers, cooking oil,

floating dunnage, lining and packing materials,

paper, rags, glass,

Discharge prohibited Discharge permitted Discharge permitted

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metal, bottles, crockery and similar refuse

1 When garbage is mixed with or contaminated by other harmful substances prohibited from discharge or having different discharge requirements, the more stringent requirements shall apply.

2 Comminuted or ground food wastes must be able to pass through a screen with mesh no larger than 25 mm.

3 The discharge of introduced avian products in the Antarctic area is not permitted unless incinerated, autoclaved or otherwise treated to be made sterile.

4 Offshore platforms located 12 nm from nearest land and associated ships include all fixed or floating platforms engaged in exploration or exploitation or associated processing of seabed mineral resources, and all ships alongside or within 500 m of such platforms.

5 Cargo residues means only those cargo residues that cannot be recovered using commonly available methods for unloading.

6 These substances must not be harmful to the marine environment

The revised MARPOL Annex V requires among others, the following new/revised requirements for garbage management plan and garbage record book:

1 The Garbage Management Plan is now required for every ship of 100 gt and above (previously 400gt and above), every ship which is certified to carry 15 or more persons and fixed or floating platforms which are engaged in the exploration, exploitation or associated offshore processing of sea-bed mineral resource.

The Garbage Management Plan shall be based on the 2012 guidelines - see the below attached resolution MEPC.220(63) - adopted by the Marine Environment Protection Committee of the Organization. This will revoke the Guidelines for the Development of Garbage Management Plans (resolution MEPC.71 (38)), upon the entry into force of the revised MAR POL Annex V (i.e. 1 January 2013).

2 The garbage record book and the record of garbage discharges have been revised. The Garbage Record Book, whether as a part of the ship's official log-book or otherwise, shall be in the form specified in the appendix to the revised Annex V as per resolution MEPC 201(62).

5. Air pollution from ships. Updated IMO air pollution from ships regulations are set out in the foregoingUS EPA notice of October 2008. In the United States these regulations are enforced by the US EPA and the Coast Guard, and violators may be liable for criminal and civil penalties. Note how the standards for air emissions and fuel requirements become progressively more stringent. The regulations governing ship emissions may be found in 40 CFR Part 1043 and Part 80, subpart I . The US Clean Air Act authorizes federal regulation, and explicitly preempts state regulation of air pollution emissions from "new motor

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vehicles and new motor vehicle engines." 42 USC sees. 7521(a) (1), 7543(a). One state is exempted from this preemption---California. (See 42 USC sec. 7543 (b)(1). However, 1990 amendments to the Clean AirAct require California to seek authorization from the EPA to enforce its separate state regulations relating to "non-road vehicles or engines." 42 USC sec. 7543(e)(2). Other states can adopt regulations identical to California's approved by the EPA. In 2007, the California Air Resources Board (CARB) began enforcing new state marine vessel rules regarding the emissions of particulate matter, nitrogen oxide and sulfur oxide from ocean-going vessels on all waters within twenty-four nautical miles of the California coast. Cal. Code Regs. (CCR) Tit. 13, sec. 2299. In Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008), the court ruled that these California standards were emission standards relating to non-road engines requiring advance EPA approval, and, since California had neither sought nor obtained approval by the EPA for these emission standards, they were preempted by the Clean Air Act. In 2009, CARB promulgated new Vessel Fuel Rules (13 CCR sec. 2299.2 and 19 CCRsec. 93 118) that vessel operators in California waters must meet in order to reduce particulate matter, nitrogen oxide and sulfur oxide emissions by about 90 %, essentially accomplishing the same purposes as the repudiated emissions rules. In Pacific Merchant Shipping Association v. Goldstene, 659 F. 3d 1154 (9th Cir. 2011), since the Vessel Fuel Rules did not require advance approval by the EPA, the court considered whether the rules were preempted through (1) statutory preemption by the US SubmergedLands Act; (2) admiralty preemption; or (3) implied field preemption . The court also considered whether the Vessel Fuel Rules were inconsistent with the Dormant Commerce Clause doctrine. The court rejected all these challenges and upheld the Vessel Fuel Rules. Although the twenty-four mile enforcement area under California law is broader than the three-mile grant to the state under theSubmerged Lands Act, the court ruled that the Vessel Fuel Rules do not make any territorial claim, and that prior Supreme Court cases recognize the right of states to legislate extraterritorially under their historic police powers. The court also rejected admiralty preemption on the ground that the Vessel FuelRules contain a sunset clause that will lead them to expire when MARPOL Annex VI is fully phased in.The court also rejected the Dormant Commerce Clause challenge on the ground that the federal interest in uniformity is "rather attenuated" in the field of air pollution and environmental degradation.

6. Regulation of ships' ballast water, bilge water and graywater. Discharges of waters from ships were long exempt from the permitting requirements of the US Clean Water Act. 40 CFR sec. 122.3(a) excluded from permitting discharges incidental to the normal operation of a vessel. This exemption regulation was challenged and overturned in Northwest Environmental Advocates v. Environmental Protection Agency, 537 F.3d 1006 (9th Cir. 2008), which ruled that all vessel discharges---ballast water, bilge water, graywater, and deck runoff water---are subject to EPA permitting under the Clean Water Act. [ballast water is water that is taken on or released by cargo vessels to compensate for changes in the vessels' weights as cargo is taken on or discharged; bilge water is the water that collects in ships' bilges, their lowest parts; graywater is wastewater from showers, sinks and kitchens]. Ballast water is a particular problem because it may contain aquatic invasive species that cause millions of dollars in damages to fisheries, recreation, and public infrastructure. Ballast water discharges are now subject to meeting the requirements under a General Permit under the Clean Water Act NPDES Program and the Non-Indigenous Aquatic Nuisance Prevention and Control Act, 16 USC sees. 4701 et seq. The new regulations, contained in 33 CFR Part 151 and 46 CFR 162, require flushing and exchange of ballast water by vessels

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in Pacific-near-shore voyages and salt water flushing of ballast water tanks that are empty or contain only un-pumpable residual ballast water. The EPA is also investigating the feasibility of ballast water treatment systems for future possible application. Some states, notably Alaska, prohibit the discharge of ballast water in their territorial waters. See Chevron USA, Inc. v Hammond, 726 F. 2d 483 (9th Cir. 1984).

SECTION VI. Ocean Dumping

Until the early 1970s, the oceans of the world were treated as convenient receptacles for the worst types of waste materials: toxic chemicals, radioactive waste, hazardous waste, garbage and other unwanted items of every kind. In 1972, a multilatural convention, the London Convention on thePrevention of Marine Pollution by Dumping of Wastes and Other Matter, finally limited intentional dumping of wastes at sea. The mechanism employed by the 1972 London Convention was to prohibit the dumping of certain listed materials, and to allow dumping for non-listed materials through national permitting programs.

The United States is a party to the 1972 London Dumping Convention, and has implemented the Convention by enacting the Ocean Dumping Act, 33 USC sees. 1401 et seq. This Act prohibits persons and US flag vessels from transporting any materials from the United States for the purpose of dumping into ocean waters. Furthermore, no person from outside the United States may dump any material into the United States territorial sea or contiguous zone without a permit. Permits for dumping are issued by the US Environmental Protection Agency, except the US Army Corps of Engineers has authority to issue permits for the dumping of dredged materials. In determining whether to grant a permit, the EPA and the Corps are required to evaluate the following criteria: the need for the proposed dumping; the effect of the dumping on human health and welfare; the impact of the dumping on fisheries and resources; the effect on marine ecosystems; the persistence and permanence of the dumped materials; the effect of particular volumes and concentrations of the materials; the appropriateness of the location; whether recycling or other methods of disposal are available; and the effect of the dumping on alternative uses of the oceans. 33 USC .sec. 1412.

In 1996, because of widespread concern that the 1972 Dumping Convention was not strict enough, a Protocol was agreed that essentially replaces the earlier treaty. The 1996 Protocol to the London Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter was agreed on November 7, 1996, and entered into force for 49 parties on March 24, 2006. The United States has signed but not ratified this Protocol, so US law still reflects the earlier Convention. The distinctive .feature of the 1996 Protocol, which is partially reproduced below, is the "reverse list" approach : rather than prohibiting the dumping of specifically listed substances, the 1996 Protocol prohibits dumping of any substance other than those specifically listed in Annex I.

1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BYDUMPING OF WASTES AND OTHER MATIER, 1972

The Contracting Parties to this Protocol,

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...

Have agreed as follows:

ARTICLE 3

GENERAL OBLIGATIONS

1. In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.

2. Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.

3. In implementing the provisions of this Protocol, Contracting Parties shall act so as not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to another or transform one type of pollution into another.

4. No provision of this Protocol shall be interpreted as preventing Contracting Parties from taking, individually or jointly, more stringent measures in accordance with international law with respect to the prevention, reduction and where practicable elimination of pollution .

ARTICLE 4

DUMPING OF WASTES OR OTHER MATTER

1. 1. Contracting Parties shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex l.

2. The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting Parties shall adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.

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2. No provision of this Protocol shall be interpreted as preventing a Contracting Party from prohibiting, insofar as that Contracting Party is concerned, the dumping o f wastes or other matter mentioned in Annex 1. That Contracting Party shall notify the Organization of such measures.

ARTICLE 5

INCINERATION AT SEA

Contracting Parties shall prohibit incineration at sea of wastes or other matter.

ARTICLE 6

EXPORT OF WASTES OR OTHER MATTER

Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea.

ARTICLE 8

EXCEPTIONS

The provisions of articles 4. 1 and 5 shall not apply when it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea, if dumping or incineration at sea appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping or incineration at sea will be less than would otherwise occur. Such dumping or incineration at sea shall be conducted so as to minimize the likelihood of damage to human or marine life and shall be reported forthwith to the Organization.

2 A Contracting Party may issue a permit as an exception to articles 4. 1 and 5, in emergencies posing an unacceptable threat to human health, safety, or the marine environment and admitting of no other feasible solution. Betore doing so the Contracting Party shall consult any other country or countries that are likely to be affected and the Organization which, after consulting other Contracting Parties, and competent international organizations as appropriate, shall, in accordance with article 18.1.6 promptly recommend to the Contracting Party the most appropriate procedures to adopt. The Contracting Party shall follow these recommendations to the maximum extent feasible consistent with the time within which action must be taken and with the general obligation to avoid damage to the marine environment and shall inform the Organization of the action it takes. The Contracting Parties pledge themselves to assist one another in such situations.

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3 Any Contracting Party may waive its rights under paragraph 2 at the time of, or subsequent to ratification of, or accession to this Protocol.

ARTICLE 9ISSUANCE OF PERMITS AND REPORTING

1. Each Contracting Party shall designate an appropriate authority or authorities to:

1. issue permits in accordance with this Protocol;

2. keep records of the nature and quantities of all wastes or other matter for which Jumping permits have been issued and where practicable the quantities actually dumped and the location, time and method of dumping; and

3. monitor individually, or in collaboration with other Contracting Parties and competent international organizations, the condition of the sea for the purposes of this Protocol.

ANNEX 1

WASTES OR OTHER MATTER THATMAY BE CONSIDERED FOR DUMPING

1. The following wastes or other matter are those that may be considered for dumping being mindful of the Objectives and General Obligations of this Protocol set out in articles 2 and 3:

1. dredged material;

2. sewage sludge;

3. fish waste, or material resulting from industrial Fish processing operations;

4. vessels and platforms or other man-made structures at sea;

5. inert, inorganic geological material;

6. organic material of natural origin;

7. bulky items primarily comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping;and

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8. Carbon dioxide streams from carbon dioxide capture processes for sequestration.

2. The wastes or other matter listed in paragraphs 1.4 and l.7 may be considered for dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.

3. Notwithstanding the above, materials listed in paragraphs 1.1 to 1.8 containing levels of radioactivity greater than de minimis (exempt) concentrations as defined by the IAEA and adopted by Contracting Parties, shall not be considered eligible for dumping; provided further that within 25 years of 20 February 1 994, and at each 25 year interval thereafter, Contracting Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter other than high level wastes or matter, taking into account such other factors as Contracting Parties consider appropriate and shall review the prohibition on dumping of such substances in accordance with the procedures set forth in article 22.

4. Carbon dioxide streams referred to in paragraph 1.8 may only be considered for dumping, if:1. disposal is into a sub-seabed geological formation; and2. they consist overwhelmingly of carbon dioxide.

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NOTES AND QUESTIONS

1. The reverse list approach. Is the reverse list approach better than the 1972 Convention's approach of forbidding the dumping of listed substances?

2. Ocean carbon sequestration. Does the 1996 Protocol allow ocean carbon sequestration—the storage of carbon dioxide beneath the sea? Is this a good idea? Will ocean carbon sequestration help combat climate change?

3. Radioactive wastes. To what extent can radioactive waste be dumped into the sea? Can low level radioactive waste (equipment and clothing) be dumped?

4. Offshore oil and gas operations. Does the 1996 Protocol unduly interfere with seabed mining or offshore oil and gas operations? Article I (4.3) provides that "the disposal of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources is not covered by the provisions of this Protocol."

5. Dumping of sewage, sludge and medical wastes. Does the Protocol permit ocean dumping of sewage, sludge and medical waste? Congress banned the dumping of these wastes after December 31, 1991. See 33 USC sec. 1414b (a)(l)(B).

6. Dumping of dredge spoil. Does the Protocol allow dumping of dredge spoil?7. Incineration at sea. Does the Protocol permit incineration of wastes at sea ? Article I (5.2)

provides that "incineration at sea" does not include "the incineration of wastes or other matter on board a vessel, platform, or other man-made structure at sea if such wastes or other matter were generated during the normal operation of that vessel, platform, or other man-made structure at sea."

8. Exceptions. Are the exceptions in the 1996 Protocol too broad or are they reasonable?9. Precautionary and polluter pays principles. Are these two principles part of the 1996 Protocol?

Are they meaningful in this context or just window dressing?10. US Ratification. Should the United States ratify the 1996 Protocol? In 2008 the Bush

Administration submitted the Protocol to the US Senate for ratification, but no action has been taken. What are the advantages of ratification for the United States as opposed to unilateral action?

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PROBLEM 7-7

STORING CARBON DIOXIDE UNDER THE SEABED TO COMBAT CLIMATE CHANGE

Nation B has embarked on a program to aggressively decrease carbon emissions to combat climate change. The method Nation B is relying upon to accomplish this is carbon capture and sequestration, a variety of technologies that involve capturing carbon dioxide from electric gene rating facilities and industrial processes, compressing the gases captured into liquids, transporting the liquid C02 by pipeline to an underground storage facility, where the C02 is injected deep into an impermeable geologic formation where it will be permanently stored and sequestered from the environment. Since Nation B has limited capacity to store C02 on its territory, it is proposing to sequester and store C02 in the seabed offshore in its EEZ. Nation B has, for this purpose, identified 3 sites that it deems suitable for long-term carbon storage and sequestration.

Nation B is a party to the London Dumping Convention and its 1996 Protocol. In 2006, Annex I of the 1996 Protocol was amended as follows:

AMMENDMENT TO ANNEX 1 TO THE LONDON PROTOCOL

1.8 Carbon dioxide streams from carbon dioxide capture processes for sequestration

........................................................................

4. Carbon dioxide streams referred to in paragraph 1.8 may only be considered for dumping, if:

1. disposal is into a sub-seabed geological formation; and

2. they consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture and sequestration processes used; and

3. no wastes or other matter are added for the purpose of disposing of those wastes or other matter.

What criteria must Nation B satisfy in order to carry out its carbon capture and sequestration program in its EEZ? Is an aggressive carbon capture and sequestration program the answer to preventing climate change? Consider the costs and risks involved in (1) capturing and compressing C02; (2) transporting C02; and (3) injecting C02 deep into the earth. What assurances are there that the "impermeable" rock formations into which C02 is injected will not leak in the future?

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PROBLEM 7-7

STORING CARBON DIOXIDE UNDER THE SEABED TO COMBAT CLIMATE CHANGE

Nation B has embarked on a program to aggressively decrease carbon emissions to combat climate change. The method Nation B is relying upon to accomplish this is carbon capture and sequestration, a variety of technologies that involve capturing carbon dioxide from electric generating facilities and industrial processes, compressing the gases captured into liquids, transporting the liquid C02 by pipeline to an underground storage facility, where the C02 is injected deep into an impermeable geologic formation where it will be permanently stored and sequestered from the environment. Since Nation B has limited capacity to store C02 on its territory, it is pro posing to sequester and store C02 in the seabed offshore in its EEZ. Nation B has, for this purpose, identified 3 sites that it deems suitable for long-term carbon storage and sequestration.

Nation B is a party to the London Dumping Convention and its 1996 Protocol. In 2006, Annex I of the 1996 Protocol was amended as follows:

AMENDMENT TO ANNEX l TO THE LONDON PROTOCOL

1.8 Carbon dioxide streams from carbon dioxide capture processes for sequestration

........... ..... .......................... ...........

4 Carbon dioxide streams referred to in paragraph 1.8 may only be considered fordumping, if:

. l disposal is into a sub-seabed geological formation; and

.2 they consist overwhelmingly of carbon dioxide. They may contain incidentalassociated substances derived from the source material and the capture andsequestration processes used; and

. 3 no wastes or other matter are added for the purpose of disposing of thosewastes or other matter.

What criteria must Nation B satisfy in order to carry out its carbon capture and sequestration program in its EEZ? Is an aggressive carbon capture and sequestration program the answer to preventing climate change? Consider the costs and risks involved in (1) capturing and compressing C02; (2) transporting C02; and (3) injecting C02 deep into the earth. What assurances are there that the "impermeable" rock formations in to which C02 is injected will not leak in the future?

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SECTION VII. Marine Casualties and Liability for Damages

Over the past sixty years international law has created a framework to deal with marine casualties involving accidental spills of oil or hazardous substances. Much of this legal architecture was erected in response to spectacular and tragic events. For example, on March 18, 1967, the tanker Torrey Canyon ran aground on Seven Stones reef near the Isles of Scilly near the United Kingdom. In a largely futile effort to minimize the damage from spilled oil, the U K destroyed the tanker without the permission of the flag state. Two years later the Brussels Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969), was concluded, which permits states (Article 1) to take "such measures on the high seas as may be necessary to prevent, mitigate, or eliminate grave andimminent danger to their coast line or related interests from pollution or threat of pollution of the sea by oil, following upon a marine casualty."20 The wreck of the Torrey Canyon the subsequent pollution caused the International Maritime Organization (IMO) to convene diplomatic conferences that adopted two landmark treaties creating an international regime to compensate for damages from oil spills into the sea : the International Convention on Civil Liability for Oil Pollution Damage (1969) (the CLC or Civil Liability Convention), and the International Convention on the Establishment of an Oil Pollution Fund (1971) (the Fund Convention). In the United States, the wreck of the Exxon Valdez, an oil tanker that spilled an estimated 11 million gallons of crude oil in Prince William Sound, Alaska, pol luting the sea and some 1300 miles of coastline. In response to this casualty the United States enacted the Oil Pollution Act 1990 (OPA), which imposes strict liability for damages upon "responsible parties" in cases of spills of oil into the navigable waters of the United States or its Exclusive Economic Zone . (33 U S C sees. 2701 et seq.). There was also an international response to the spill of the Exxon Valdez: I MO sponsored an international conference that adopted the International Convention on Oil Pollution Preparedness, Response, and Cooperation (1990) (OPRC), which entered into force in 1995.21

The focus of this section is to explore liability for accidental oil spill maritime pollution under the US OPA 90 as compared with liability under the international law regime, the CLC and Fund Conventions. As a vehicle for making this comparison, consider the following problem:

PROBLEM 7-8

AN INTERNATIONAL OIL TANKER CASUALTY

On July 14, 1996, the 500.000 ton S.S. Persian Festiva collided in a fog with the S.S. Multi-Media Transport Festoon. The Persian Festiva is a Liberian registered supertanker, owned by the Festiva Ltd., a Liberian subsidiary of a major United States shipping company. The Multi-Media Transportation Company's Festoon is a United States registered container vessel. The collision happened in the Pacific Ocean exactly 198-nautical-miles from the United States’ baseline from which the US territorial sea is measured. It is substantially further from the baselines of other states. This location is generally west of the boundary between Canada and the United States at the Dixon Entrance. The Persian Festiva

20 The Intervention Convention was transposed into U.S law by Congress. 33 USC sec. 1471 et seq.

21 See also the Protocol to OPRC Relating to Hazardous and Noxious Substances (the OPRC-HNS Protocol) of 2000 (not in force).

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supertanker was en route from the Persian Gulf to deliver more than 175,000 tons of crude oil at a Canadian port. It was constructed in 1992 without a double hull.

The collision was the result of a design flaw in the supertanker radar system, which prevented it from showing the necessary information regarding the S.S. Festoon in order to determine that the vessels were on a collision course. At the time of the accident a qualified member of the crew was watching the radar screen. Neither the members of the crew nor the owner, however, was aware of the flaw before the accident. The supertanker was piloted by the captain, Mohammed Khori, a Liberian national. The United States Coast Guard later determined that Khori was drunk at the time of the collision. He had a history of drinking on the job. The owner of the supertanker was aware of this and had ordered Khori to stop consuming alcohol when aboard his vessel. Khori was also required to attend a month-long program designed to stop employees from drinking on the job. He attended this program and the instructor reported that he had successfully completed it. The owners had no information suggesting that after he completed the program he continued drinking alcohol on the job. When the lookout on the supertanker heard the fog horn of the freighter, it was too close for the supertanker to alter its course, direction, or speed in order to avoid a collision. The collision punctured one of the holds of the supertanker that contained crude oil. As a result, 20 percent of the crude oil carried by the vessel spilled into the ocean and spread over a large area of the sea. An ocean current in the area carried some of the discharge into the Canadian 12-nautical-mile territorial sea. That oil caused injuries to the living natural resources in the area. The supertanker crew was able to seal the hole in the vessel and stop the remaining oil in the vessel from discharging.

The United States Coast Guard was notified of the collision and arrived on the scene. It deployed equipment to clean up as much of the crude oil in the sea as possible. Unfortunately, due to the sea conditions and delays in getting the clean up equipment to the area, much of the oil could not be recaptured. The effect of the spill was devastating to the near shore areas of Canada. Thousands of seabirds and sea otters were killed, and the marine ecosystem was severely damaged. Although no humans were physically injured, damage to public and private property was extensive. In addition, the spill had significant adverse effects on the tourist and fisheries industries in the affected areas.

The US Coast Guard arrested the supertanker and ordered it into the port of Valdez , Alaska, in the United States. By service on the captain and arrest of the vessel, the United States commenced an action in the United States District Court in Seattle against the vessel, the captain, the owners of the supertanker Festiva and Liberia. The United States sought to recover the cost of the cleanup, compensation for damages to the environment of the United States Exclusive Economic Zone and of the high seas beyond the zone. This included damages to the living natural resources located in the seas and the seabed caused by the spill. Multi-Media Transportation Company, the owner of the Multi-Media Transportation Festoon joined the suit claiming monetary compensation for damages to the freighter caused by the collision. Claims were also brought in the District Court case against the supertanker and the owner of the vessel company by Canada and by the owners of Canadian property damaged by the spill. The Canadian fishermen and Canadian tourist companies, which suffered losses as a result of the spill, also brought claims.

Subsequent to the collision, the supertanker and its cargo were valued at US $10 million. The total liability insurance carried by the vessel was US $15 million. Persian Gulf Oil Company had no assets other than the vessel, although the company is a wholly-owned subsidiary of a large and wealthy US corporation. The United States damages claim is for US $30 million, the Multi-Media Transportation Company's claim is for US $5 million, and Canada's claim is for US $ 10 million in losses. The Canadian

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property owners' claimed US $ 15 million; and the fishermen and Canadian tourist companies claimed US $5 million in losses.

The owners of the supertanker and the Government of Liberia claim that the United States violated public international law when it arrested the captain, the vessel, and brought suit against the vessel and Liberia. They maintain that compensation is not owed for the damages. This position was put forward in a diplomatic note delivered to the United States State Department and filed in the pending United States District Court action. Canada and Liberia are parties to the 1982 United Nations Convention on the Law of the Sea, and they have made the relevant provisions of that Convention applicable to their flag vessels.

The United States was not a party to the Convention at the time of the incident.

PRELIMINARY CONSIDERATIONS

This realistic hypothetical problem poses a number of important non-environmental law questions. We consider these briefly before focusing on the liability and environmental issues involved. Preliminary questions that will come up are the following:

1 . Violation of international law. Did the United States' actions violate international law? Although the US was not a party to the UNCLOS at the time of the casualty, the provisions of U NCLOS, which the US will claim as applicable customary law rules, are essential to answering this question. Com pare UNCLOS Articles 97, which concerns arrest of the ship and disciplining the master and crew with respect to a ship on the high seas, with UNCLOS Articles 56 (the rights of the coastal state in the EEZ), 21l (pollution from vessels) 220 (enforcement by coastal states) and Article 292 (prompt release of master and crew).

2. Jurisdiction. Under the Constitution of the United States, the judicial power of United States (federal) courts extends to "all Cases of admiralty and maritime jurisdiction." (Art. III, sec. 2). Federal court jurisdiction over admiralty and maritime cases is codified in 28 USC sec. 1333. There is a separate provision for "special maritime and territorial jurisdiction of the United States" in criminal cases. 18 USC sec. 7.

3. Collision damages and limitation of liability. It appears that American law would apply to the collision itself. US maritime law imposes liability for collision damages on proof of negligence or fault, and damages are apportioned between the vessels involved in a collision on the basis of comparative negligence or fault. United States v. Reliable Transfer Co., 421 US 397 (1975). Would Multi-Media Transp. Co. be able to claim collision damages from the owners of the S.S. Persian Festiva? Limitation of liability is an important principle of shipping law. The United States law on limitation is the Limitation of Shipowners' Liability Act, 46 USC sees 30501 et seq, which allows a shipowner involved in a casualty to file a complaint for exoneration or limitation of liability within six months after receiving written notice of a claim in a marine casualty. If limitation is upheld, all claims for damages must be filed in a single court proceeding, and liability is limited to the value of the vessel after the casualty plus pending freight. 46 USC sec. 30505. Limitation may be "broke,” denied by the court, if the "privity or knowledge" –the fault---of the master or crew that caused the casualty, can be imputed to the shipowner. How would apportionment of damages and limitation of liability be handled in this case?

4. Cargo owners. The owners of cargo aboard both ships would have claims; these damages would be included as collision damages and liability ultimately would be apportioned according to

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comparative fault. See, e .g., Allied Chemical Corp. v. Hess Tankship Co., 661 F . 2d 1044, 1982 AMC 127 1 ( 5th Cir. 1981)

5. Likely claimants for damages resulting from the oil spill. Who are the likely claimants in this case? In addition to the parties involved in the collision, likely claimants will include: (1) the United States; (2) the State of Alaska; (3) Canada; and (4) private claimants from both the United States and Canada, including commercial and recreational fishermen, owners of contaminated boats and shore property, tackle and bait shops, shore motels and restaurants, marinas and boat rental shops, wholesale and retail seafood enterprises, and commercial shipping unable to transit the a rea contaminated by the spill.

6 . Likely defendants. Who are the likely defendants in this case?

APPLICABLE LAW

We analyze the applicability of two legal regimes with respect to this case. Some 105 states are parties to the international regime on civil liability for oil pollution damage, the CLC and Fund Conventions. The original CLC and Fund Conventions were replaced by a 1992 Protocol, which established a new international liability regime known as the 1992 CLC and Fund Conventions. An agreement in 2000 increased the limits of liability of the 1992 CLC and Fund Conventions, and in 2003, a Supplementary Fund was added, accepted at this writing by 27 states. In this problem case, we will work with the 1992 CLC and Fund Conventions as amended, leaving aside consideration of the 2003 Supplementary Fund.

Canada is a party to the 1992 CLC and Fund Conventions.

The United States is not a party to the 1992 CLC or Fund Conventions' regime, and has enacted its own national law on oil spill damages, the OPA 90.

The full CLC and Fund Conventions are reprinted in the Documentary Supplement. The following materials provide a comparison of the two liability regimes.

International Convention on Civil Liability for Oil Pollution Damage (C LC)

Adoption: 29 November 1969; Entry into force: 19 June 1975; replaced by 1992 Protocol:Adoption: 27 November 1992; Entry into (force: 30 M ay 1996

The Civil Liability Convention was adopted to ensure that adequate compensation is available to persons who suffer oil pollution damage resulting from maritime casualties involving oil-carrying ships.

The Convention places the liability for such damage on the owner of the ship from which the polluting oil escaped or was discharged.

Subject to a number of specific exceptions, this liability is strict; it is the duty of the owner to prove in each case that any of the exceptions should in fact operate. However, except where the owner has been guilty of actual fault, they may limit liability in respect of any one incident.

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The Convention requires ships covered by it to maintain insurance or other financial security in sums equivalent to the owner's total liability for one incident.

The Convention applies to all seagoing vessels actually carrying oil in bulk as cargo, but only ships carrying more than 2,000 tons of oil are required to maintain insurance in respect of oil pollution damage.

This does not apply to warships or other vessels owned or operated by a State and used for the time being for Government non-commercial service. The Convention, however, applies in respect of the liability and jurisdiction provisions, to ships owned by a State and used for commercial purposes. The only exception as regards such ships is that they are not required to carry insurance. Instead they must carry a certificate issued by the appropriate authority of the State of their registry stating that the ship's liability under the Convention is covered.The Convention covers pollution damage resulting from spills of persistent oils suffered in the territory (including the territorial sea) of a State Party to the Convention. It is applicable to ships which actually carry oil in bulk as cargo, i.e. generally laden tankers. Spills from tankers in ballast or bunker spills from ships other than other than tankers are not covered, nor is it possible to recover costs when preventive measures are so successful that no actual spill occurs. The shipowner cannot limit liability if the incident occurred as a result of the owner's personal fault.

The Protocol of 1976, which entered into force in 1981, provided for the applicable unit of account used under the convention to be based on the Special Drawing Rights (SDR) as used by the International Monetary Fund (IMF), replacing the "Poincare franc", based on the "official" value of gold, as the applicable unit of account.

The Protocol of 1984 set increased limits of liability but was superseded by the 1992 Protocol.

The Protocol of 1992 changed the entry into force requirements by reducing from six to four the number of large tanker-owning countries that were needed for entry into force.

The compensation limits were set as follows:

• For a ship not exceeding 5, 000 gross tonnage, liability is limited to 3 million SDR• For a ship 5,000 to 140,000 gross tonnage: liability is limited to 3 million SDR plus 420 SDR for each additional unit of tonnage• For a ship over 140,000 gross tonnage: liability is limited to 59.7 million SDR.

The 1992 protocol also widened the scope of the Convention to cover pollution damage caused in the exclusive economic zone (EEZ) or equivalent area of a State Party. The Protocol covers pollution damage as before but environmental damage compensation is limited to costs incurred for reasonable measures to reinstate the contaminated environment. It also allows expenses incurred for preventive measures to be recovered even when no spill of oil occurs, provided there was g rave and imminent threat of pollution damage.

The Protocol also extended the Convention to cover spills from sea-going vessels constructed or adapted to carry oil in bulk as cargo so that it applies to both laden and unladen tankers, including spills of bunker oil from such ships.

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Under the 1 992 Protocol, a shipowner cannot limit liability if it is proved that the pollution damage resulted from the shipowner's personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

The 2000 AmendmentsAdoption: 18 October 2000Entry into force: 1 November 2003The amendments raised the compensation limits by 50 percent compared to the limits set in the 1992 Protocol, as follows:

• For a ship not exceeding 5, 000 gross tonnage, liability is limited to 4.51 million SDR (US$5.78 million)• For a ship 5,000 to 1 40,000 gross tonnage: liability is limited to 4.51 million SDR plus 631 SDR for each additional gross tonne over 5, 000• For a ship over 140, 000 gross tonnage: liability is limited to 89.77 million SDR

Special Drawing RightsThe daily conversion rates for Special Drawing Rights (SDRs) can be found on the International Monetary Fund website at http/www.imf.org

International Convention on the Establishment of an International Fund forCompensation for Oil Pollution Damage (FUND)

Adoption: 18 December 1971; Entry into force: 1 6 October 1 978; superseded by 1992 Protocol:Adoption: 27 November 1992; Entry into force: 30 May 1996

Although the 1969 Civil Liability Convention provided a useful mechanism for ensuring the payment of compensation for oil pollution damage, it did not deal satisfactorily with all the legal, financial and other questions raised during the Conference adopting the CLC Convention. The 1969 Brussels Conference considered a compromise proposal to establish an international fund, to be subscribed to by the cargo interests, which would be available for the dual purpose of, on the one hand, relieving the shipowner of the burden by the requirements of the new convention and, on the other hand, providing additional compensation to the victims of pollution damage in cases where compensation under the 1969 Civil Liability Convention was either inadequate or unobtainable.

The Conference recommended that IMO should prepare such a schema and the InternationalConvention on the Establishment of an International Fund for Compensation for Oil PollutionDamage was adopted at a Conference held in Brussels in 1971. It is supplementary to the Civil Liability Convention.

The purposes of the Fund Convention are:To provide compensation for pollution damage to the extent that the protection afforded by the 1969 Civil Liability Convention is inadequate.To give relief to shipowners in respect of the additional financial burden imposed on them by the 1969 Civil Liability Convention, such relief being subject to conditions designed to ensure compliance with safety at sea and other conventions.To give effect to the related purposes set out in the Convention.

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Under the first of its purposes, the Fund is under an obligation to pay compensation to States and persons who suffer pollution damage, if such persons are unable to obtain compensation from the owner of the ship from which the oil escaped or if the compensation due from such owner is not sufficient to cover the damage suffered.

Under the Fund Convention, victims of oil pollution damage may be compensated beyond the level of the shipowner's liability. However, the Fund's obligations are limited. Where, however, there is no shipowner liable or the shipowner liable is unable to meet their liability, the Fund will be required to pay the whole amount of compensation due. Under certain circumstances, the Fund's maximum liability may increase.

With the exception of a few cases, the Fund is obliged to pay compensation to the victims of oil pollution damage who are unable to obtain adequate or any compensation from the shipowner or his guarantor under the CLC Convention.The Fund is not obliged to indemnify the owner if damage is caused by his wilful misconduct or if the accident was caused, even partially, because the ship did not comply with certain international conventions.

The Convention contains provisions on the procedure for claims rights and obligations and jurisdiction.

Contributions to the Fund should be made by all persons who receive oil by sea in Contracting States.

Protocols to the 1971 convention were adopted in 1976 and 1984, but were superseded by the 1992 Protocol.

The 1 971 convention ceased to be in force from 24 May 2002.

The Protocol of 1992Adoption: 27 November 1992Entry into force: 30 May 1996

As was the case with the 1 992 Protocol to the CLC Convention, the main purpose of the Protocol was to modify the entry into force requirements and increase compensation amounts.The scope of coverage was extended in line with the 1992 CLC Protocol.

The 1992 Protocol established a separate, 1992 International Oil Pollution Compensation(IOPC) Fund, known as the 1992 Fund, which is managed in London by a Secretariat.

Under the 1992 Protocol, the maximum amount of compensation payable from the Fund for a single incident, including the limit established under the 1992 CLC Protocol, is 135 million SDR.

However, if three States contributing to the Fund receive more than 600 million tonnes of oil per annum, the maximum amount is raised to 200 million SDR.

Protocol of 2000Adoption: 27 September 2000Entry into force: 27 June 2001

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The purpose of the 2000 Protocol has been to terminate the 1971 Fund Convention.

According to the Protocol, the 1971 Fund Convention ceases to be in force on the date when the number of Contracting States falls below twenty-five.This happened on 24 May 2002, because of the denunciations by States Parties to Fund 1971 in favor of their membership of Fund 1 992.

The 2003 Protocol (supplementary fund)Adoption: 16 May 2003Entry into force: 3 March 2005

The 2003 Protocol establishing an International Oil Pollution Compensation SupplementaryFund was adopted by a diplomatic conference held at IMO Headquarters in London.

The aim of the established Fund is to supplement the compensation available under the 1992Civil Liability and Fund Conventions with an additional, third tier of compensation. The Protocol is optional and participation is open to all States Parties to the 1992 Fund Convention.

The total amount of compensation payable for any one incident will be limited to a combined total of 750 million Special Drawing Rights (SDR) including the amount of compensation paid under the existing CLC/Fund Convention.

The supplementary fund will apply to damage in the territory, including the territorial sea, of aContracting State and in the exclusive economic zone of a Contracting State.

Annual contributions to the Fund will be made in respect of each Contracting State by any person who, in any calendar year, has received total quantities of oil exceeding 150, 000 tons. However, for the purposes of the Protocol, there is a minimum aggregate receipt of 1,000,000 tons of contributing oil in each Contracting State.

The Assembly of the Supplementary Fund will assess the level of contributions based on estimates of expenditure (including administrative costs and payments to be made under the Fund as a result of claims) and income (including surplus funds from previous years, annual contributions and any other income).

Amendments to the compensation limits established under the Protocol can be adopted by a tacit acceptance procedure, so that an amendment adopted in the Legal Committee of IMO by a two-thirds majority of Contracting States present and voting, can enter into force 24 months after its adoption.

The IOPC Funds and IMOAlthough the Funds were established under Conventions adopted under the auspices of IMO, they are completely independent legal entities.

Unlike IMO, the IOPC Funds are not United Nations (UN) agencies and are not part of the UN system. They are intergovernmental organizations outside the UN, but follow procedures which are similar to those of the UN.Only States can become Members of the IOPC Funds.

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To become a member of the Fund, a State must accede to the 1 992 Civil Liability Convention and to the 1992 Fund Convention by depositing a formal instrument of accession with the Secretary-General of IMO. These Conventions should be incorporated into the national law of the State concerned.

See the IOPC Funds website at http://www.lopcfund.org/

Special drawing rightsThe daily conversion rates for Special Drawing Rights (SDRs) can be found on the International Monetary Fund website at http://www. imf.org/

NOTES AND QUESTIONS

1. Under the CLC, liability for d a mages in cases of tanker oil spills is channeled to the registered owner of the vessel (CLC Art. III). The Fund Convention was concluded to complement the CLC by creating a compensation fund (created by levies on oil companies and member states) that imposes supplemental liability on oil cargo owners. Currently there are three separate funds each with different parties and each responsible to its assembly of parties. Liability under the CLC and the Fund regimes is strict but limited: the maximum available for any one incident is 750 million SDRs. (An SDR is a weighted average of a basket of national currencies including the US dollar, the euro, the British pound sterling, and the Japanese yen).

2. Under the CLC, the owner of any ship registered in a contracting state and carrying more than 2000 tons of oil in bulk as cargo must maintain insurance or other financial security covering liability up to the applicable limits of the CLC. A direct action for compensation may be maintained against the insurer. CLC Art. VII .

3. Damages recoverable under the CLC and the Fund Convention22 include:

• Property damage• Costs of response and clean up both onshore and offshore• Economic losses by fishers• Certain economic losses of the tourism industry• Cost of reinstatement of the affected environment

4. Claims for compensation must be filed within three years of the date the damage was suffered and may only be brought in the state in which the damage occurred.23 In the first instance, the national court will establish the limitation amount under the CLC (an amount ultimately paid by the liability insurer), and the claims will be paid out of this amount. If the claims exceed the limit under the CLC, the applicable fund or funds will become involved to pay remaining claims.

22 See International Oil Pollution Compensation (IOPC) Claims Manual 23-37 (2008).

23 CLC Art. VIII.

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Under the Fund Convention, an international organization, the International Oil Pollution Compensation Funds (IOPC Funds) is the agency that handles these claims. Since its establishment in 1978, as of this writing, the IOPC Funds have handled 145 oil pollution incidents in which payments from the funds have come into play.24 Claims against the IOPC Fund may be filed at the IOPC office in London, but the IOPC will commonly open one or more claims’ offices in the country where the damage occurred. The IOPC claim process is an out-of-court settlement process in which claims are processed according to criteria set out in the IOPC Claims Manual.25 If a claimant is turned down by the IOPC, he or she may file a claim against the IOPC in national court. In most cases the national court will uphold the IOPC determination, although there are several celebrated cases in which national courts awarded damages against the IOPC. For example, in the case of the oil spill by the tanker Patmos, a claim by the Italian state for environmental damages because of the "loss of enjoyment suffered by the community", was admitted Italian Court of Appeal26, and damages were awarded against the shipowner after being denied by the IOPC Funds.27

5. Note that the CLC and the Fund Convention apply only to spills from ships carrying oil as cargo. A separate international convention, the International Convention on Civil Liability for Bunker Oil Pollution Damage (2001) establishes strict liability for damages in cases of bunker oil spills from non-tankers, and requires ships over 1000 gross tons to maintain insurance or other financial security, but the ship involved may limit liability under the Convention on Limitation of Liability for Maritime Claims (1976) and its 1996 Protocol. Some 47 parties have adhered to the Bunker Oil Convention. Because shipowners may limit liability under the Limitation Convention (which does not apply to limit liability under the CLC or the Funds regime), in the event of a major spill of bunker oil, the damages will greatly exceed the shipowner's liability. See the Case of the Rena, High Court of New Zealand, CIV-2012-470-838, [2013] NZHC 500 (2013). Neither the CLC/Fund regime nor the Bunker Oil Convention apply to damages from spills of hazardous substances. The Hazardous and Noxious Substances Convention (HNS Convention) (1996) was concluded to establish an international compensation regime for spills of hazardous and noxious substances, but the HNS Convention is not yet in force. No international convention presently covers spills or emissions of oil from offshore oil and gas drilling activities, such as the accident that occurred in 2010 at the BP Macondo Well that polluted the Gulf of Mexico.

NOTE ON COLLATERAL ACTIONS TO OVERCOME LIMITSUNDER THE INTERNATIONAL LIABILITY REGIMES

24 See http://www.iopcfunds.org.

25 IOPC Claims Manual, op. cit. at 2-4.

26 Patmos incident (1985), reported in International Oil Pollution Compensation Fund Annual Report, 1989, pp. 18-22.

27 Under the international regimes, the CLC and the Funds, recovery of environmental damages are limited in two ways. First, IOPC Fund Resolution 3, First Extra Sess., Oct. 17, 1980, FUND/A/ES.1/13, adopted by the Funds’ Assembly, states that “assessment of compensation to be paid by the Fund is not to be made on the basis of an abstract quantification of damage calculated in accordance with theoretical models.” Second, the CLC Protocol, Art. 1(2) limits damages as follows: “compensation for impairment of the environment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken.”

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Suppose the damage from an oil spill is in excess of the limits applicable under the international liability regime; is there any way persons damaged by the oil pollution incident ca n bring collateral actions to recover further damages? This problem was raised in connection with the wreck of the oil tanker Erika off the west coast of France in 1999. The Erika was a Malta-registered tanker whose principal owner as a shareholder in a Maltese company was a n Italian national, Giuseppe Savarese, living in London. The classification society that approved the seaworthiness of the Erika was an Italian company, Registro Italiano Navale (RINA). The Erika foundered in international waters but sank within the French Exclusive Economic Zone (EEZ), spilling tons of oil into the sea causing the death of tens of thousands of seabirds and other marine life and polluting over 400 kilometers of pristine beaches and shorelands in Brittany and the Vendee region of France. The wreck of the Erika was found to have been caused by a combination of bad weather and corrosion of the vessel's structures. At the time of the spill the Erika was under time charter to Total, S.A., a French multinational oil company. The Erika was laden with some 30,884 metric tons of grade 2 fuel oil at the time of the casualty. The shipowner’s limit of liability under the CLC Convention based on the vessel's tonnage was 13 million euros. Thus the IOPC was called upon to pay excess damages. At the time of the spill the IOPC limit was 185 million euros so the damages to individuals and French local governments (communes) as well as for response, clean-up and environmental damages were greatly in excess of the limits provided under the IOPC.

Note that the CLC channels liability for an oil spill to the shipowner; the cargo owner as time or voyage charterer does not have liability under the international regime.

The spill of the Erika sparked three extremely interesting collateral actions:

1. The Italian classification society, RI NA, filed suit in the Tribunal of Syracuse, Sicily, against the French state and Total, asking for a declaratory judgment that it had no liability in the matter. On appeal the Italian Corte di Cassazione, the Italian Supreme Court, ruled that Italian courts did not have jurisdiction since 1992 CLC, Article IX(l) establishes exclusive jurisdiction in the courts in t h e state where the damage occurred. Corte di Cassazione No. 14769, Sezione Unite, Judgment of 17 October 2002.

2. The French commune (local government) of Mesquer filed an action for damages in a French court against Total, S. A., the cargo owner/charterer of the Erika, praying for damages on the theory that oil spilled into the sea becomes "waste" under the laws of France and the European Union, and that under these laws, Total, as the owner of the "waste", has the duty to bear the full cost of clean-up and damages. When the case reached the Supreme Court of France, the judges of that court, the Cour de Cassation, referred the question of whether spilled oil constitutes waste to the European Court of Justice (ECJ) to answer the question under European law. I n 2008, the ECJ, in Case C-188/07, Commune de Mesquer v. Total France, S.A. [2008} ECRI 4501, ruled that, indeed, hydrocarbons accidentally spilled into the sea constitute "waste" within the meaning of European Union Council Directive 75/442, and in accordance with the "polluter pays" principle, Total, as generator of the waste, is fully liable for damages if it has contributed by its conduct to the risk that pollution caused by the shipwreck will occur. Under this ruling Total, as the cargo owner, may have virtually unlimited liability for further damages.

3. French prosecutors filed criminal actions in a Paris court against several defendants in connection with the Erika spill, and in 2008, the trial court rendered guilty verdicts against Total, Giuseppe Savarese, the principle shareholder of the shipowning company, Antonio Pollara, the ship's master, and RINA, the classification society. Proces Erika, Jugement du Tribunal Correctional de Paris (Gran de Instance), 16 Jan. 2008. The court levied a criminal fine of 375 million euros against Total . In addition, under French law, as is typical of civil law countries,

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victims of crimes may join the criminal proceedings and recover damages [see the Code Penal de France, Arts. 85 and 86]. Some 200 French communes and French environmental organizations joined the criminal action, and the court declared that under French law the four convicted defendants were liable for civil compensatory damages in the amount of 200.6 million euros. The two amounts levied---the 375 million euro criminal fin e and the 200.6 million euro civil damages-were in addition to a mounts voluntarily paid already by Total and RINA, 171 million euros and 30 million euros, respectively. The trial court's judgment was upheld by the French Court of Appeal in 2010 [Affaire Erika, Judgment of the Cour d'Appe/ de Paris, 30 March 2010], and was appealed to the Supreme Court, the Cour de Cassation. Most observers expected the Cour de Cassation to nullify the judgment, especially after the Court's Advocate General, which Cour de Cassation follows most of the time, ruled in an II Avis" on May 24, 2012, that French courts had no criminal or civil jurisdiction in the matter. As to the criminal liability, the Advocate General held that French criminal jurisdiction under the Code Penal, Art. 113-2 is territorial and that this included only French territory and the French territorial sea, not the French Exclusive Economic Zone. He further ruled that in the area of the EEZ the flag state, Malta, had exclusive criminal jurisdiction. As to the civil liability of the defendants, the Advocate General held that the CLC and Fund Conventions as accepted by France provided exclusive jurisdiction and that collateral civil actions for damages were excluded under French law. Nonetheless, on September 25, 2012, the Cour de Cassation handed down a 330 page opinionfully upholding the criminal convictions and the criminal and civil liability rendered by the trial court. The Cour de Cassation ruled that the court had jurisdiction under French criminal law over pollution incidents occurring in the French EEZ based on the provisions of UNCLOS (see Articles 27, 28, 56, 97, 2 1 1, and 220). The court up held civil jurisdiction for damages under a theory of "prejudice ecologique" which could be the basis for civil damages rendered to victims of crimes resulting from an oil spill incident. Cour de Cassation, Chambre criminelle, Arret no. 3439 of 25 September 2012, available at http://www.courdecassation.fr/IMG///Crim arret3439 2012092S.pdf, accessed 23 November 2012.

This case may soon enter a new phase: the lawyers for Total have announced that they intend to seek review of the judgment of the Cour de Cassation in the European Court of Human Rights.

In the case of the Prestige, a tanker which sank some 30 kilometers off Cape Finisterre, Galicia, Spain in 2002, fouling much of the Spanish coast and wreaking havoc with the fishing industry, the Spanish government in 2003, filed suit against the US classification society, Houston-based American Bureau of Shipping (ABS), that had approved the seaworthiness of the Prestige and had certified the vessel as fit to carry fuel cargos.

The United States District Court for the Southern District of New York granted summary judgment in favor of ABS on the ground that under the CLC, Spain was the exclusive forum for the assertion of pollution claims concerning the spill. Reina de Espana v. American Bureau of Shipping, 528 F. Supp. 455 (S.D.N.Y. 2008). After this judgment was reversed by the Court of Appeals on the ground that an international treaty to which the US is not a party cannot divest the US federal courts of subject matter jurisdiction [Summary Order of the United States Court of Appeals of the Second Circuit, 12 June 2009], the District Court again granted summary judgment in favor of ABS on the substantive ground that a classification society's services; which involve conducting an inspection of a vessel for the owner, do not constitute a "global guarantee" to third parties concerning a vessel's seaworthiness. Reina de Espana v. American Bureau of Shipping, 729 F. Supp. 2d 635 (S.D.N. Y. 2010). The Court of Appeals affirmed this decision but on different grounds. The Court of Appeals refused to decide whether a classification

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society may be liable in tort to third parties for negligent or for reckless conduct in connection with the classification of vessels. Instead, the Court, after a choice of laws analysis holding that the question of liability was governed by the maritime law of the United States, ruled that Spain had not introduced sufficient evidence to prove its allegation that ABS had acted recklessly, and, consequently, a jury could not conclude that the failure of ABS had led to the damages incurred by the spill of oil from the Prestige. Reina de Espana v. American Bureau of Shipping, 691 F.3d 461 (2d Cir. 2012). Did the lawyers for Spain make a tactical error in not alleging that ABS was liable for simple negligence?

UNITED STATES1POLLUTION ACT OF 1990(OPA 90)

33 United States Code sees. 2701 et seq.

[OPA 90 imposes strict liability for damages resulting from an oil spill on "responsible parties" who are defined as, for vessels, the owner, operator or demise charterer (and the owner of the oil for single hull tankers); for offshore facilities, the lessee or permittee and the holder of the right of use; for onshore facilities, the owner and the operator; for pipelines, the owner and operator; and for deep water ports, the licensee. 33 USC sec 2701 (32). Oil spill liability is triggered by any discharge of oil that produces” sheen" on the water; a sheen is an iridescent appearance on the surface of the water. 40 CFR sec. 110.OPA 90 also establishes an Oil Spill Liability Trust Fund, which is available to pay claims up to $ 1 billion per incident if a claim is not paid after first being presented to a responsible party or if the responsible party is entitled to a defense or if the liability limit under the statute has been reached. 33 USC sec. 2708. The principal liability provisions of OPA 90 are as follows.]

§ 2702. Elements of liability(a) In general. Notwithstanding any other provision or rule of law, and subject to the provisions of this Act. each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) that result from such incident

(b) Covered removal costs and damages.(I) Removal costs. The removal costs referred to in subsection (a) are--

(A) all removal costs incurred by the United States, a State, or an Indian tribe under subsection (c),

(d), (e), or ( I) of section 311 of the Federal Water Pollution Control Act (33 U.S. C. 1321), as amended by this Act, under the Intervention on the High Seas Act ( 33 U.S. C. 1-171 et seq.), or under State law; and

(B) any removal costs incurred by any person for acts taken by the person which are consistent with the National Contingency Plan.

(2) Damages. The damages referred to in subsection (a) are the following:(A) Natural resources. Damages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.

(B) Real or personal property. Damages for injury to, or economic losses resulting from destruction of real or personal property, which shall be recoverable by a claimant who owns or leases that property.

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(C) Subsistence use. Damages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost. without regard to the ownership or management of the resources.

(D) Revenues. Damages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof.

(E) Profits and earning capacity. Damages equal to the loss of pro tits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources. which shall be recoverable by any claimant

( F) Public services. Damages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State, or a political subdivision of a State.(c) Excluded discharges. This title does not apply to any discharge-

(1) permitted by a permit issued under Federal, State, or local law;(2) from a public vessel; or(3) from an onshore facility which is subject to the Trans-Alaska Pipeline Authorization Act (-43 U.S. C.

(d) Liability of third parties.(I) In general.(A) Third party treated as responsible party. Except as provided in subparagraph (B), in any case in which a responsible party establishes that a discharge or threat of a discharge and the resulting removal costs and damages were caused solely by an act or omission of one or more third parties described in section 1003(a)(3) [33 USC § 2703(a)(3)) (or solely by such an act or omission in combination with an act of God or an act of war), the third party or parties shall be treated as the responsible party or parties for purposes of determining liability under this title.(B) Subrogation of responsible party. If the responsible party alleges that the discharge or threat of a discharge was caused solely by an act or omission of a third party, the responsible party--(i) in accordance with section 1013 [33 USC § 2713] shall pay removal costs and damages to any claimant; and(ii) shall be entitled by subrogation to all rights of the United States Government and the claimant to recover removal costs or damages from the third party or the Fund paid under this subsection.(2) Limitation applied.(A) Owner or operator of vessel or facility. If the act or omission of a third party that causes an incident occurs in connection with a vessel or facility owned or operated by the third party, the liability of the third party shall be subject to the limits provided in section I004 [33 USC § 2704] as applied with respect to the vessel or facility.(B) Other cases. In any other case, the liability of a third party or parties shall not exceed the limitation which would have been applicable to the responsible party of the vessel or facility from which the discharge actually occurred if the responsible party were liable.

§ 2703. Defenses to liability(a) Complete defenses. A responsible party is not liable for removal costs or damages under section I 002 [33 USC § 270] if the responsible party establishes, by a preponderance of the evidence, that the

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discharge or substantial threat of a discharge of oil and the resulting damages or removal costs were caused solely by--(1) an act of God;(2) an act of war;(3) an act or omission of a third party, other than an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual relationship with the responsible party (except where the sole contractual arrangement arises in connection with carriage by a common carrier by rail), if the responsible party establishes, by a preponderance of the evidence, that the responsibleparty—

(A) exercised due care with respect to the oil concerned, taking into consideration the characteristics of the oil and in light of all relevant facts and circumstances; and(B) took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions; or(4) any combination of paragraphs (1), (2), and (3).

(b) Defenses as to particular claimants. A responsible party is not liable under section I 002 [33 USC §

2701] to a claimant, to the extent that the incident is caused by the gross negligence or willful misconduct of the claimant.

(c) Limitation on complete defense. Subsection (a) does not apply with respect to a responsible party who fails or refuses—

(1) to report the incident as required by law if the responsible party knows or has reason to know of the incident;(2) to provide all reasonable cooperation and assistance requested by a responsible official in connection with removal activities; or(3) without sufficient cause, to comply with an order issued under subsection (c) or (e) of section 311 of the Federal Water Pollution Control Act (33 US. C. 132 1), as amended by this Act, or the Intervention on the High Seas Act ( 33 U S. C. 1 -1 71 et seq.).

§ 2704. Limits on liability(a) General rule. Except as otherwise provided in this section, the total of the liability of a responsible party under section 1 002 [33 USC § 2 702] and any removal costs incurred by, or on behalf of the responsible party, with respect to each incident shall not exceed-( 1 ) for a tank vessel, the greater of-- (A) $ 1 ,200 per gross ton; or (B) (i) in the case of a vessel greater than 3,000 gross tons, $ I 0,000,000; or (ii) in the case of a vessel of 3,000 gross tons or less, $ 2,000,000;(2) for any other vessel, $ 600 per gross ton or $ 500,000. whichever is greater;(3) for an offshore facility except a deep water port, the total of all removal costs plus $ 75,000,000; and(4) for any onshore facility and a deep water port, $ 3 50,000,000.

(c) Exceptions. (I) Acts of responsible party. Subsection (a) does not apply if the incident was proximately caused by-- (A) gross negligence or willful misconduct of, or

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(B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.

§ 2707. Recovery by foreign claimants(a) Required showing by foreign claimants. (1) In general. In addition to satisfying the other requirements of this Act, to recover removal costs or damages resulting from an incident a foreign claimant shall demonstrate that--(A)the claimant has not been otherwise compensated for the removal costs or damages: and(B) recovery is authorized by a treaty or executive agreement between the United States and the claimant's country, or the Secretary of State, in consultation with the Attorney General and other appropriate officials, has certified that the claimant's country provides a comparable remedy for United States claimants.(2) Exceptions. Paragraph ( l )(B) shall not apply with respect to recovery by a resident of Canada in the case of an incident described in subsection (b)(4).

(b) Discharges in foreign countries. A foreign claimant may make a claim tor removal costs and damages resulting from a discharge, or substantial threat of a discharge, of oil in or on the territorial sea, internal waters, or adjacent shoreline of a foreign country, only if the discharge is from-(1) an Outer Continental Shelf facility or a deepwater port;(2) a vessel in the navigable waters;(3) a vessel carrying oil as cargo between 2 places in the United States; or(4) a tanker that received the oil at the terminal of the pipeline constructed under the Trans-Alaska Pipeline Authorization Act(43 U S. C. 165 1 et seq.), for transportation to a place in the United States, and the discharge or threat occurs prior to delivery of the oil to that place.

(c) Foreign claimant defined. In this section, the term "foreign claimant" means- (1) a person residing in a foreign country; (2) the government of a foreign country; and (3) an agency or political subdivision of a foreign country.

§ 2713. Claims procedure(a) Presentation. Except as provided in subsection (b), all claims for removal costs or damages shall be presented first to the responsible party or guarantor of the source designated under section 1014(a) [33 USC § 2714(a)].

(b) Presentation to Fund. (1) In general. Claims tor removal costs or damages may be presented t1rst to the Fund- (A) if the President has advertised or otherwise notified claimants in accordance with section 10l4(c) [33 USC § 2714(c)J; (B) by a responsible party who may assert a claim under section 1008 [33 USC § 2708]: (C) by the Governor of a State for removal costs incurred by that State: or (D) by a United States claimant in a case where a foreign offshore unit has discharged oil causing damage for which the Fund is liable under section 1012(a) [33 USC § 2712(a)].(2) Limitation on presenting claim. No claim of a person against the Fund may be approved or certified during the pendency of an action by the person in court to recover costs which are the subject of the claim.

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(c) Election. If a claim is presented in accordance with subsection (a) and- (1) each person to whom the claim is presented denies all liability for the claim, or (2) the claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to section 1014(b) [33 USC § 2714(b)], whichever is later, the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund.

(d) Uncompensated damages. If a claim is presented in accordance with this section, including a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled, and full and adequate compensation is unavailable, a claim for the uncompensated damages and removal costs may be presented to the Fund.

(e) Procedure for claims against Fund. The President shall promulgate, and may from time to time amend, regulations for the presentation, filing, processing, settlement, and adjudication of claims under this Act against the Fund.

§ 27 1 8. Relationship to other law(a) Preservation of State authorities; Solid Waste Disposal Act. Nothing in this Act or the Act of March 3, 1851 shall--

(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to- (A) the discharge of oil or other pollution by oil within such State; or (B) any removal activities in connection with such a discharge; or(2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act(48 U.S.C. 690 1 et seq.) or State law, including common law.

(b) Preservation of State funds. Nothing in this Act or in section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509) shall in any way affect, or be construed to affect, the authority of any State- (1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or (2) to require any person to contribute to such a fund.

(c) Additional requirements and liabilities; penalties. Nothing in this Act, the Act of March 3, 1 851 (46 U.S.C. 183 et seq.), or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof—

(1) to impose additional liability or additional requirements; or(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.

§ 2751. Savings provisions(a) Cross-references. A reference to a law replaced by this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision of this Act.

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(e) Admiralty and maritime law. Except as otherwise provided in this Act, this Act does not affect-(1) admiralty and maritime law; or(2) the jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

IN RE OIL SPILL BY THE OIL RIG DEEPWATE R HORIZON

United States District Court, 2011Eastern District of Louisiana

808 F. Supp. 2d 943

[This case is the first published decision by the Court handling the multi-district litigation arising from the explosion, fire, and subsequent release of an estimated 4.9 million barrels (205 .8 million gallons) of oil in the Gulf of Mexico in 2010].

ORDER AND REASONS[As to Motions to Dismiss the B1 master Complaint]

BARBIER, District Judge.

This multi-district litigation ("MDL") consists of hundreds of consolidated cases, with thousands of claimants, pending before this Court. These cases arise from the April 20, 2010 explosion, tire, and sinking of the DEEPWATE R HORIZON mobile offshore drilling unit ("MODU"), which resulted in the release of millions of gallons of oil into the Gulf of Mexico before it was finally capped approximately three months later. The consolidated cases include claims for the death of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.

In order to efficiently manage this complex MDL, the Court consolidated and organized the various types of claims into several "pleading bundles." The "B1" pleading bundle includes all claims for private or "non-governmental economic loss and property damages." There are in excess of 100,000 individual claims encompassed within the B1 bundle.

PROCEDURAL HISTORY

In the B1 Master Complaint, the [plaintiffs’ steering committee] identifies a number of categories of claimants seeking various types of economic damages, including Commercial Fishermen Plaintiff s, Processing and Distributing Plaintiffs, Recreational Business Plaintiffs, Commercial Business Plaintiffs, Recreation Plaintiffs, Plant and Dock Worker Plaintiffs, Vessel of Opportunity ("VoO") Plaintiff's, Real Property Plaintiffs, Real Property/Tourism Plaintiffs, Banking/Retail Business Plaintiff s, Subsistence Plaintiffs, Moratorium Plaintiffs, and Dealer Claimants.

Plaintiffs named the following as Defendants in their B1 Master Complaint: B1Exploration & Production Inc., B P America Production Company and BP p.l.c. (collectively "BP"); Transocean Ltd., Transocean Offshore, Transocean Deepwater, Transocean Holdings (collectively "Transocean"); Halliburton; M-I; Cameron; Weatherford ; Anadarko, Anadarko E & P (collectively "Anadarko"); MOEX Offshore, MOEX USA (collectively "MOEX");and MOECO. All of the Defendants, with the exception of MOECO, have filed

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Motions to Dismiss. Additionally, Dril-Quip, which was not named as a Defendant in the Master Complaint, has filed a Motion to Dismiss (Rec. Doc. 2 107) because of the procedural effect of the [Federal] Rule 14(c) tender in Transocean's Third-Party Complaint.

Plaintiffs allege claims under general maritime law, the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2701 et seq., and various state laws. Under general maritime law, Plaintiffs allege claims for negligence, gross negligence, and strict liability for manufacturing and/or design defect. Under various state laws, Plaintiffs allege claims for nuisance, trespass, and fraudulent concealment, and they also allege a claim for strict liability under the Florida Pollutant Discharge Prevention and Control Act, Fla. Stat. § 376.011 et seq. Additionally, Plaintiffs seek punitive damages under all claims and request declaratory relief regarding any settlement provisions that purport to affect the calculation of punitive damages.

PARTIES' ARGUMENTS AND DUSCUSSION

The subject Motions to Dismiss go to the heart of Plaintiffs' claims in this case. Various Defendants advance somewhat different arguments as to why some or all of the B1 bundle claims should be dismissed. At bottom, however, all Defendants seek dismissal of all non-OPA claims for purely economic damages resulting from the oil spill.28 Essentially, Defendants move to dismiss all claims brought pursuant to either general maritime law or state law. All parties advance a number of arguments regarding the law that should apply to the Plaintiffs' claims for economic loss.

Vessel statusAlthough it was unclear prior to oral argument, it is now apparent that only Defendant Cameron suggests that the DEEPWATER HORIZON MODU was not a vessel in navigation at the time of the casualty on April 20, 2010. Plaintiffs and all other Defendants agree that theDEEPWATER HORIZON MODU was at all material times a "vessel" as that term is defined and understood in general maritime law. Cameron argues that although the DEEPWATER HORIZON may have been a vessel during the times it was moved from one drilling location to another, at the time of the· casualty it was stationary and physically attached to the seabed by means of 5,000 feet of drill pipe. Cameron relies on a line of cases beginning with Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2dcl.2d 360 (1969), for the proposition that a drilling platform permanently or temporarily attached to the seabed of the Outer Continental Shelf is considered an "fixed structure" and not a vessel. Accordingly, argues Cameron, admiralty jurisdiction is absent and general maritime law does not apply. Cameron contends that no state law, other than that of Louisiana law used as surrogates federal law under OCS LA, governs Plaintiffs’ claims.

The Court is not persuaded by Cameron's arguments. Under clearly established law, the DEEPWATER HORIZON was a vessel, not a .fixed platform. Cameron's arguments run counter to longstanding case law which establishes conclusively that the Deepwater Horizon, a mobile offshore drilling unit, was a vessel.

In the seminal case of Offshore Co. v. Robison, the Fifth Circuit held that a "special purpose vessel, a floating drilling platform" could be considered a vessel. 266 F.2d 769, 779 (5th Cir.l959). Specifically, the defendants in that case, who claimed that the floating platform should not be considered a vessel, 28 Additionally, Defendants move to dismiss all OPA claimants who have not complied with OPA’s “presentment” requirement. They also question whether Plaintiffs can properly sue parties under OPA who have not been named as “Responsible Parties”, as well as whether VoO Claimants and Moratorium Claimants have stated viable OPA claims.

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argued that "[t]he evidence shows that Offshore 55 was a platform designed and used solely for the purpose of drilling oil wells in offshore waters-in this instance, the Gulf of Mexico. That the platform was not self-propelled and when moved from one well to another, two large tugs were used. Further, when an oil well was being drilled the platform was secured to the bed of the Gulf in an immobilized position with the platform itself raised forty to fifty feet above the water level . . . . "Id. at 773 n. 3.Nonetheless, the Fifth Circuit held that such a “floating drilling platform” can be a vessel, though secured to the seabed while drilling a well.

Cameron argues that its blowout preventer ("BOP") was physically attached to the wellhead, located on the seabed some 5,000 feet below the surface of the water, and that the oil spill occurred at the wellhead, not from the DEEPWATE R HORIZON. This does not persuade the Court to reach a different conclusion. The B1 Master Complaint alleges that both the BOP and the drill string were part of the vessel's gear or appurtenances. Maritime law "ordinarily treats an 'appurtenance' attached to a vessel in navigable waters as part of the vessel itself." Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 535, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

Admiralty jurisdiction

The test for whether admiralty jurisdiction exists in tort cases was outlined by the Supreme Court in Grubart, Inc. v. Great Lakes Dredge & Dock Co.:

[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise of the incident shows a substantial relationship to traditional maritime activity.

513 U.S. 527,534, 115 S.CT. 1043, 130 L.ED.2d 1024 (1995) (citations and internal quotations omitted).

The location test, which is satisfied when the tort occurs on navigable water, is readily satisfied here. The B1 Master Complaint alleges that the blowout, explosions, fire, and subsequent discharge of oil, occurred on or from the DEEPWATE R HORIZON and its appurtenances, which was operating on waters overlying the Outer Continental Shelf; i.e., navigable waters. The connection test is also met. First, there is no question that the explosion and resulting spill caused a disruption of maritime commerce, which exceeds the "potentially disruptive" threshold established in Grubart. Second, the operations of the DEEPWATER HORIZON bore a substantial relationship to traditional maritime activity. See Theriot v. Bay Dr1lting Corp., 783 F.2d 527, 538-39 (5th Cir.l986) ("oil and gas drilling on navigable waters aboard a vessel is recognized to be maritime commerce"). Further, injuries incurred on land (or in the seabed) are cognizable in admiralty under the Admiralty Extension Act, 46 U.S.C. § 30101.

This case falls within the Court's admiralty jurisdiction. With admiralty jurisdiction comes the "application, of substantive admiralty law." Grubart, 513 U.S. at 545, 115 S.Ct. 1043. "[W]here OCSLA and general maritime law both could apply, the case is to be governed by maritime law." Tenn. Gas Pipeline v. Houston Cas. Ins.. Co., 87 F.3d 150, 154 (5th Cir.l996).

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Plaintiffs ' state law claimsPlaintiffs designated their B1 Master Complaint as "an admiralty or maritime case" under Rule 9(h) of the Federal Rules of Civil Procedure. Although Plaintiffs acknowledge that admiralty jurisdiction applies to this case, they insist that substantive maritime law does not preempt their state-law claims because state law can “supplement” general maritime law, either where there is a substantive gag in maritime law or where there is no conflict with maritime law. Plaintiffs also argue that OPA contains a state-law savings provision, which preserves these claims.

The focus turns, then, to the relationship between federal maritime law and state law. As mentioned, with admiralty jurisdiction comes substantive maritime law. This means that general maritime law-an amalgam of traditional common law rules, modifications of those rules, and newly created rules-applies to this matter to the extent it is not displaced by federal statute. E. River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) This framework, established by the Constitution29, intends that a consistent, uniform system will govern maritime commerce. See The Lottawanna, 88 U.S. 558, 557, 21 Wall. 558, 22 L. Ed. 654 (1874) ("It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states."). Admiralty does not entirely exclude state law, however, and States may "create rights and liabilities with respect to conduct within their borders, when the state action does not run counter to federal laws or the essential features of an exclusive federal jurisdiction." Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 375 n. 42, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (emphasis added; internal quotations and citations omitted).

But this case does not concern conduct within state borders (waters). This casualty occurred over the Outer Continental Shelf-an area of "exclusive federal jurisdiction"-on waters deemed to be the "high seas.” 43 U.S.C. § 1:332(2), 1333(a)(1)(A). The Admiralty Extension Act, though not itself a grant of exclusive jurisdiction, see Askew, infra, nevertheless ensures that damages incurred on land are cognizable in admiralty. See Grubart, 513 U.S. at 531, 115 S.CT. 1043. Citizens from multiple states have alleged damage, and multiple states' laws are asserted. While it is recognized that States have an interest to protect their citizens, property, and resources from oil pollution, to subject a discharge to the varying laws of each state into which its oil has flowed would contravene a fundamental purpose of maritime law: "[t]o preserve adequate harmony and appropriate uniform rules relating to maritime matters." Kwickerbocker Ice Co., see snpra note 7. Thus, to the extent state law could apply to conduct outside state waters, in this case it must "yield to the needs of a uniform federal maritime law." Romero, 358 U.S. at 373, 79 S.Ct ,468 (citing S. Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 ( 1916)).

Plaintiffs’ contention that OPA's savings’ provisions preserves its state-law claims is also unavailing. These provisions state: (a) Preservation of State authorities; Solid Waste Disposal Act Nothing in this Act or the Act of March 3, 1851 shall--29 Article III. § 2 extends the judicial power to "all cases of admiralty and maritime jurisdiction." Congress legislates in this area by virtue of the Interstate Commerce Clause and Necessary and Proper Clause. U.S. Const. Art. I. § 8. The Supremacy Clause, Article VI, ensures federal maritime law supersedes state law. See I Thomas J. Schoenbaum, Admiralty and Maritime Law §§ 4-l to 4-2 (4th ed. 2004).

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(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect ' to-- (A) the discharge of oil or other pollution by oil within such State; or (B) any removal activities in connection with such a discharge; or(2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or Statelaw, including common law.

(c) Additional requirements and liabilities; penalties

Nothing in this Act, the Act of March 8, 1851 (46 U.S.C. 183 et seq.), or section 9509 of title 26, shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof-

(1) to impose additional liability or additional requirements; or (2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law;

relating to the discharge, or substantial threat of a discharge, of oil.

(c) Additional requirements and liabilities; penalties

Nothing in this Act, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 of title 26, shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof-

(1) to impose additional liability or additional requirements; or(2) to impose, or to determine the amount of, any tine or penalty (whether criminal or civil in nature) for any violation of law; relating to the discharge, or substantial threat of a discharge, of oil.

33 U.S.C. § 2718. These provisions evince Congress' intent to preserve the States' police power to govern pollution discharges within their territorial waters. The Court does not read as them giving States the power to govern out-of-state conduct affecting multiple states. ''The usual function of a saving clause is to preserve something from immediate interference-not to create; and the rule is that expression by that the Legislature of an erroneous opinion law claim concerning law does not alter it." Knickerbocker Ice, 253 U.S. at 162, 40 S.Ct. 488. In other words, although Congress has expressed its intent to not preempt state law, this intent does not delegate to the States a power that the Constitution vested in the federal government.

This conclusion is consistent with the Supreme Court's rationale in International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). There the Court addressed the question of whether the (Clean Water] Act preempts a common-law nuisance suit filed in a Vermont court under Vermont law, when the source of the alleged injury is located inNew York." Id. at 483, 107 S.Ct. 805. The Clean Water Act ("CWA" contained two provisions relating to state-law remedies:

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Except as expressly provided . . . nothing in this chapter shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.

Nothing in this section [Citizen Suits] shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief . . ..

Id. at 485, 107 S.Ct. 805 (quoting 33 U.S.C. §§ 1370, 1365(e)). Notwithstanding these provisions, the Ouellette Court determined that " . . . when a court considers a state law claim concerning interstate water pollution that is subject to the CWA, the court must apply the law of the State in which the point source is located." Id. At 187, 107 S.Ct. 805. According to the Court, "[a]pplication of an affected State's law to an out-of-state source would . . .undermine the important goals of efficiency and predictability in the permit system." ld. At 496, 107 S.Ct. 805. The Court also noted that prohibiting an action under the affected State's laws did not leave the plaintiffs without a remedy as they could avail themselves of either the source State’s law or the CWA’s citizen suit provision. Id. At 497-98 & n. 18, 107 S.CT. 805. Although this matter may not immediately concern a permitting process, similar goals exist in maritime law (uniformity), as discussed above. Thus, just as the Supreme Court limited the state-law claims preserved by the CWA savings clause, this Court finds it appropriate to limit state-law claims purportedly saved by OPA.

General maritime law claims

Defendants seek to dismiss all general maritime claims, contending that when Congress enacted OPA, it displaced pre-existing federal common law, including general maritime law, for claims covered by OPA. Defendants argue that OPA provides the sole remedy for private, nongovernmental entities asserting economic loss and property damage claims. They urge that when Congress enacts a comprehensive statute on a subject previously controlled by federal common law, the federal statute controls and displaces the federal common law. Defendants further argue that under OPA, Plaintiffs are allowed to pursue their claims for economic damages solely against the designated "Responsible Party" and that OPA does not allow claims directly against non-Responsible Parties.

Prior to the enactment of OPA in 1990, a general maritime negligence cause of action was available to persons who suffered physical damage and resulting economic loss resulting from an oil spill. General maritime law also provided for recovery of punitive damages in the case of gross negligence, Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008), and strict product liability for defective products, E. River S.S. Corp. 476 U.S. 358, 106 S.Ct. 2295 (1986). However, claims for purely economic losses unaccompanied by physical damage to a proprietary interest were precluded under Robins Dry Dock & Repair· Co. v. Flint, 275 U.S. 301,48 S.Ct. 134, 72 L.Ed. 290 (1927). The Fifth Circuit has continuously reaffirmed the straightforward application of the Robins Dry Dock rule, explaining that "although eloquently criticized for its rigidity, the rule has persisted because it offers a bright-line application in an otherwise murky area. "Mathiese v. M/V Obelix 817 F.2d 345, 346-47 (5th Cir. 1985))(citing Louisiana v. M/V Testbank, 752 F.2d 1019 (5th Cir.1985)); see also Wiltz v. Bayer CropScience, Ltd., 645 F.3d 690 (5th Cir.2011l); Catalyst Old River Hydroelectric Ltd. v. lngram Barge Co., 639 F.3d 207 (5th Cir.2011) (both reaffirming the applicability of Robins Dry Dock ).

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One relevant exception to the Robins Dry Dock rule applies in the case of commercial fishermen. See Louisiana v. M/V Testbank, 524 F.Supp. 1170, 1173 (E.D.La. 1981) (“claims for [purely] economic loss [resulting from an oil spill and subsequent river closure) asserted by the commercial oystermen, shrimpers, crabbers, and fishermen raise unique considerations requiring separate attention . . . seamen have been recognized as favored in admiralty and their economic interests require the fullest possible legal protection."). A number of other courts have recognized that claims of commercial fishermen are suigeneris because of their unique relationship to the seas and fisheries, treating these fishermen as akin to seamen under general maritime law. See Yarmonth Sea Prods. Ltd. v. Scully, 131 F.3d 389 (4th Cir.i997); Union Oil Co. v. Oppen, F.2d 558 (9th Cir.1974).

Accordingly, long before the enactment of OPA, this was the state of general maritime law. Persons who suffered physical damage to their property as well as commercial fisherman had a cause of action under general maritime law to recover losses resulting from unintentional maritime torts. In the case of gross negligence or malicious, intentional conduct, general maritime law provided a claim for punitive or exemplary damages. Baker, 554 U.S. 471, 128 S.Ct. 2605. And, in the case of a defective product involved in a maritime casualty, maritime law imposed strict liability. E. River S.S. Corp., 476 U.S. 858, 106 S.Ct. 2295 (1986).

In the wake of the EXXON VALDEZ spill in 1989, there were large numbers of persons who suffered actual economic losses but were precluded from any recovery by virtue of the Robins Dry Dock rule. At that time, an oil spill caused by a vessel on navigable water was governed by a web of different laws, including general maritime law, the CWA, and the laws of states affected by the spill in question. Various efforts had been made in the past to enact comprehensive federal legislation dealing with pollution from oil spills. With impetus from the EXXON VALDEZ incident, Congress finally enacted OPA in 1990.

OPA is a comprehensive statute addressing responsibility for oil spills, including the cost of cleanup, liability for civil penalties, as well as economic damages incurred by private parties and public entities. Indeed, the Senate Report provides that the Act "builds upon section 3111 of the Clean Water Act to create a single Federal law providing cleanup authority, penalties, and liability for oil pollution." S. Rep. 101-94 (1989), 1990 U.S.C.C.A.N. 722, 730. One significant part of OPA broadened the scope of private persons who are allowed to recover for economic losses resulting from an oil spill. OPA allows recovery for economic losses "resulting from" or "due to" the oil spill, regardless of whether the claimant sustained physical damage to a proprietary interest. OPA allows recovery for "[d]amages equal tothe loss of profits or impairment of earning capacity due to the injury destruction, or loss of real property, or natural resources, which shall be recoverable by any claimant.''33 U.S.C. § 2702(b)(2)(E) (emphasis added). Furthermore, the House Report noted that ''[t]he claimant need not be the owner of the damaged property or resources to recover for lost profits or income." H.R. Conf. Rep. 101-653 (1990), 1990 U.S.C.C.A.N. 779, 781.

Clearly, one major remedial purpose of OPA was to allow a broader class of claimants to recover for economic losses than allowed under general maritime law. Congress was apparently moved by the experience of the Alaskan claimants whose actual losses were not recoverable under existing law. Another obvious purpose of OPA was to set up a scheme by which a "Responsible Party'' (typically the vessel or facility owner) was designated and made strictly liable (in most instances) for cleanup costs and resulting economic damages. The intent is to encourage settlement and reduce the need for litigation. Claimants present their claims to the Responsible Party, who pays the claims and is then allowed to seek contribution from other allegedly liable parties. 33 U.S.C. § 2709, 2710, 2713. If the Responsible Party refuses or fails to pay a claim after ninety days, the claimant may either pursue its

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claim against the government-created Oil Spill Liability Trust Fund or file suit in court. Id. 2713. There was much debate in Congress about whether or not this new federal statute should completely preempt or displace other federal or state laws. Ultimately, the statute included two "saving'' provisions, one relating to general maritime law30 and the other to state laws (discussed above). The question arises in this case as to whether, or to what extent, OPA has displaced any claims previously existing under general maritime law, including claims for punitive damages.

Only a handful of courts have had the opportunity to address whether OPA displaces general maritime law. For example, the First Circuit in South Port Marine, LLC v. Gulf Oil Limited Partnership, 234 F.3d 58 (1st Cir.2000), held that punitive damages were not available under OPA. The First Circuit began by noting that in enacting OPA ''Congress established a comprehensive federal scheme for oil pollution liability" and "set[ ] forth a comprehensive list of recoverable damages." Id. at 64. "Absent from that list of recoverable damages is any mention of punitive damages." Id.

The First Circuit found that the Supreme Court decision of Miles v. Apex Marine, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), led to the conclusion that OPA did not allow for punitive damages. "The Court [in Miles] refused to allow recovery for loss of society when such damages were not provided in [Death on the High Seas Act], reasoning that in an area covered by statute, it would be no more appropriate to prescribe a different measure of damage than to prescribe a different statute of limitations, or a different class of beneficiaries.' "Id. at 65-66 (internal citations omitted). Likewise, the First Circuit determined that OPA's absence of an allowance for punitive damages was conclusive. In Clausen v. M/V New Carissa the district court adopted the First Circuit's rationale and held that punitive damages were not allowable under OPA. 171 F.Supp.2d 1127 (D.Or.2001).

In Gabarick v. Laurin Maritime (America) Inc., 623 F.Supp.2d 741, 747 (E.D.La. 2009), the district court determined that OPA preempted maritime law claims for economic loss, using the four factors articulated in United States v. Oswego Barge Corp .. 664 F.2d 327 (2d Cir.l98l), to analyze whether OPA displaced general maritime law: "(1) legislative history; (2) the scope of legislation; (3) whether judge made law would fill a gap left by Congress's silence or rewrite rules that Congress enacted; and (4) likeliness of Congress's intent to preempt long established and familiar principles of the common law or the general maritime law."

However, more recent Supreme Court precedents cause this Court to question the notion that long-standing federal common law can be displaced by a statute that is silent on the issue. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, CWA did L.Ed.2d 570 (2008) holding that the CWA did not displace a general maritime remedy for punitive damages) and Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) (holding that the Jones Act did not displace the availability of punitive damages for a seaman's maintenance and cure claim).

In Baker, the Court employed a three-part analysis to determine if a statue preempts or displaces -federal common law. First, is there a clear indication that Congress intended to occupy the entire field? Second, does the statute speak directly to the question addressed by the common law? Third, will application of common law have a frustrating effect on the statutory remedial scheme? 554 U.S. at 489, 128 S.Ct. 2605. The question presented in Baker was whether the CWA preempted or displaced general 30 “Except as otherwise provided in this Act, this Act does not affect --- (1) admiralty and maritime law; or (2) the jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 33 USC sec. 2751 (c).

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maritime punitive damages for economic loss. The Court first stated that it saw no clear indication of congressional intent to occupy the entire field of pollution remedies. Next, the Court noted that the CWA made no mention of punitive damages, and that ''[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law." Finally, the Court did not perceive that punitive damages for private harms would have any frustrating effect on the CWA remedial scheme. Accordingly, the Court concluded that the CWA did not preempt punitive damages under general maritime law.

In Townsend, the Supreme Court revisited its prior holding in Miles v. Apex Marine, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), on which the South Port Marine Court hinged its analysis. The Townsend Court explained that Miles did not allow punitive damages for wrongful death claims because it was only as a result of federal legislation that a wrongful death cause of action existed. 129 S.Ct. at 2572-73. Accordingly, "to determine the remedies available under the common-law wrongful-death action, 'an admiralty court should look primarily to these legislative enactments for policy guidance.' It would have been illegitimate to create common law remedies that exceeded those remedies statutorily available under the Jones Act and DOHSA." ld. at 2572 (citing Miles, 498 U.S. at 27, 111 S.Ct. 317). The Court contrasted the situation in Miles with the question before it in Townsend, and it concluded that "both the maritime cause of action (maintenance and cure) and the remedy (punitive damages) were well established before the passage of the Jones Act." Ld. In other words, the Court limited the application of Miles when it concluded that punitive damages were available to the seaman asserting a cause of action for maintenance and cure.

The B1 Master Complaint alleges economic loss claims on behalf of various categories of claimants, many of whom have not alleged physical injury to their property or other proprietary interest. Pre OPA, these claimants, with the exception of commercial fishermen, would not have had a viable cause of action and would be precluded from any recovery by virtue of Robins Dry Dock. Accordingly, claims under general maritime law asserted by such claimants are not plausible and must be dismissed.

However, the Court finds that the B1 Master Complaint states a viable cause of action against the non-Responsible Parties under general maritime law on behalf of claimants who either allege physical damage to a proprietary interest and/or qualify for the commercial fishermen exception to Robins Dry Dock. In brief, these claims are saved and not displaced by OPA for the following reasons.

First, when reading OPA and its legislative history, it does not appear that Congress intended to occupy the entire field governing liability for oil spills, as it included two savings provisions-one that preserved the application of general maritime law and another that preserved a State's authority with respect to discharges of oil or pollution within the state. 33U.S.C. §§ 2718, 2751.

Second, OPA does not directly address or speak to the liability of non-Responsible Parties to persons who suffer covered losses. Although OPA contains provisions regarding the Responsible Party's ability to seek contribution and indemnification, Id. §§ 2709, 2710, it is silent as to whether a claimant can seek redress directly from non-Responsible Parties. Prior to OPA's enactment, commercial fisherman and those who suffered physical damage had a general maritime law cause of action against these individuals.

Third, there is nothing to indicate that allowing a general maritime remedy against the non-Responsible Parties will somehow frustrate Congress' intent when it enacted OPA. Under OPA, a claimant is required to first present a claim to the Responsible Party. If the claim is not paid within ninety days, the claimant

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may file suit or file a claim against the Oil Spill Liability Trust Fund. A Responsible Party is strictly liable and damages are capped unless there is gross negligence or violation of a safety statute or regulation that proximately caused the discharge. To allow a general maritime claim against the Responsible Party would serve to frustrate and circumvent the remedial scheme in OPA.

Thus, claimants' maritime causes of action against a Responsible Party are displaced by OPA, such that all claims against a Responsible Party for damages covered by OPA must comply with OPA's presentment procedure. However, as to the non-Responsible Parties, there is nothing in OPA to indicate that Congress intended such parties to be immune from direct liability to persons who either suffered physical damage to a proprietary interest and/or qualify for the commercial fishermen exception. Therefore, general maritime law claims that existed before OPA may be brought directly against non-Responsible parties.

Claims for punitive damagesOPA is also silent as to the availability of punitive damages Plaintiffs who could assert general maritime claims pre-OPA enactment may plausibly allege punitive damages under general maritime for several reasons. First, ''[p]unitive damages have long been available at common law" and "the common-law tradition of punitive damages extends to maritimeclaims.'' Townsend, 129 S. Ct. at 2569.

Congress has not occupied the entire field of oil spill liability in light of the OPA provision preserving admiralty and maritime law, '[e]xcept as otherwise provided." 0PA does not mention punitive damages; thus, while punitive damages are not available under OPA, the Court does not read OPA's silence as meaning that punitive damages are precluded under general maritime law. Congress knows how to proscribe punitive damages when it intends to, as it did in the commercial aviation exception under the Death on the High Seas Act, 46 U.S.C. § 30307(b) ("punitive damages are not recoverable").

There is also nothing to indicate that allowing a claim for punitive damages in this context would frustrate the OPA liability scheme. As stated above, claims against the Responsible Party must comply with OPA’s procedure, regardless of whether there is also cause of action against the Responsible Party under general maritime law. However, the behavior that would give rise to punitive damages under general maritime law – gross negligence- would also break OPA’s limit of liability. See 33 U.S.C. § 2704 (a). Thus, the imposition of punitive damages under general maritime law would not circumvent OPA’s limitation of liability.

Finally on this issue, the Court notes Justice Stevens’ concurrence in Baker in whc8ih he wrote that the Trans-Alaska Pipeline Authorization Act (“TAPAA”) which provided “the liability regime governing certain types of Alaskan oil spills, imposing strict liability but also capping recovery.” “did not restrict the availability of punitive damages.” 554 U.S. at 518, 128 S.Ct. 2605. Although the issue of whether TAPAA precluded an award of punitive damages was not squarely before the Court’s conclusion. OPA, like TAPAA creates a liability regime governing oil spills, impose strict liability on the Responsible Parties, includes liability limits, and is silent on the issue of punitive damages.

Thus, OPA does not displace general maritime law claims for those Plaintiffs who would have been able to bring such claims prior to OPA's enactment. These Plaintiffs assert plausible claims for punitive damages against Responsible and non-Responsible parties.

Negligence claims against Anadarko and MOEX

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Anadarko and MOEX, the non-operating lessees for the Macondo well, have joined in the arguments made by other Defendants. However, these two Defendants advance additional, independent reasons supporting their Motions to Dismiss. In essence, Defendants argue that under the Joint Operating Agreement ("JOA'') existing between BP and themselves,BP was the operating partner, responsible for the drilling of the Macondo well. Anadarko or MOEX had no personnel present aboard the DEEPWATER HORIZON and assert they had no right to control BP's conduct.

Ainsworth v. Shell Offshore, Inc. lays out the analysis for evaluating Plaintiffs' negligence claim against Anadarko and MOEX. 829 F.2d 548 (5th Cir. 1987). "[A] principal generally is not liable for the offenses an independent contractor commits in the course of performing its contractual duties." Id. at 549. There are two recognized exceptions to this general principle, in the case of an ultra-hazardous activity, or when the principal retains or exercises operational control. Id. at 550. Offshore drilling operations are not considered ultra-hazardous. Id. As to operational control, the Court in Ainsworth did not find that this exception was met even when the principal had a company man present on the platform. In this case, it is not alleged that either Anadarko or MOEX had anyone resent on the DEEPWATER HORIZON. Under the JOA, BP was solely responsible for the drilling operations. Any access to information that Anadarko and MOEX may have had did not give rise to a duty to intercede in an independent contractor's operations-especially because Plaintiffs have not alleged in their Complaint that Non-Operating Defendants had access to any information not already available to BP and Transocean personnel either onshore or on the rig.

Plaintiffs attempt to avoid dismissal by suggesting that they do not argue for vicarious liability of the Non-Operating Defendants, but rather that Anadarko and MOEX were directly negligent. However, adding a "direct-duty" label to their claims does not add merit to them. See Dupre v. Chevron U.S.A. Inc., 913 F.Supp. 473, 483 (E.D.La.1996) (rejecting plaintiffs' attempt to disguise a vicarious liability claim as one of direct duty because doing so "would amount to an end-run around a large body of Fifth Circuit precedent finding no 'operational control' despite some knowledge of risk or involvement with safety issues and the presence of 'company men' on the contractor's rig"). Simply put, Plaintiffs have failed to allege a plausible general maritime negligence claim against the two Non-Operating Defendants. All general maritime negligence claims against Anadarko and MOEX must be dismissed.31

11. Although minority interest lessees, Anadarko and MOEX contest their status as responsible Parties. Neither has been formally named as a Responsible Party at this time

12. Because it is plausible that Anadarko and MOEX will be found to be Responsible Parties and thus liable under OPA, OPA claims are not dismissed.

Presentment under OPA

Defendants also seek to dismiss all OPA claims because the B1 Master Complaint does not properly allege that the B1 Claimants have complied with the "presentment" requirements of OPA. Defendants argue that presentment to the Responsible Party is either a jurisdictional requirement or, alternatively, a mandatory condition precedent before filing suit.

31 Because it is plausible that Anadarko and MOEX will be found to be Responsible Parties and thus liable under OPA, OPA claims are not dismissed.

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The Court finds that the text of OPA clearly requires that OPA claimants must first "present" their OPA claim to the Responsible Party before filing suit. The "Claims Procedure" section of OPA reads: (a) Presentation Except as provided in subsection (b) of this section, all claims for removal costs or damages shall be presented first to the responsible party or guarantor of the source designated under section 2714(a) of this title . . . .(c) If a claim is presented in accordance with subsection (a) of this section and- (1) each person to whom the claim is presented denies all liability for the claim, or (2) the claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to section 2714(b) of this title, whichever is later,

the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund.

33 U.S.C. § 2713 (emphasis added).

The text of the statute is clear. Congress intended presentment to be a mandatory condition precedent to filing suit. See Boca Cieqa Hotel, Inc. v. Bouchard Transp. Co., Inc., 51 F.3d 235 (11 th Cir.1995) (presentment is a mandatory condition precedent to filing suit under OPA); Gabarick v. Laurin Maritime (America), Inc., 2009 WL 102549 (E.D. La. 2009) (noting that the purpose of the claim presentation procedure is to promote settlement and avoid litigation).

In summary on this issue, the Court finds that presentment is a mandatory condition precedent with respect to Plaintiffs' OPA claims.32 The Court finds that Plaintiffs have sufficiently alleged presentment in their B1 Master Complaint, at least with respect to some of the Claimants. For the reasons stated above, the Court does not intend to engage in the process of sorting through thousands of individual claims at the present time to determine which claims have or have not been properly presented.33

NOTE

On October 1, 2012, the District Court, Judge Carl Barbier, issued a ruling in the Deepwater Horizon Oil Spill case involving three classes of claimants. See In re Oil Spill by Oil Rig "Deepwater Horizon", 902 F. Supp. 2d 808 (E.D. La. 2012). The first class of plaintiffs, known as "Pure Stigma" claimants, were owners, lessors and lessees of real property who alleged they suffered damages from the Gulf of Mexico oil spill in the form of a reduction in their property values. The properties of these claimants were not physically touched by the oil and were not sold. The court ruled that these claimants failed to state a claim under OPA, federal maritime or state 32 Of course, there is no presentment requirement for Plaintiffs to pursue any general maritime law claims which survive the present Motions to Dismiss.

33 The Court does not decide today what constitutes "presentment." OPA requires a claimant to present his or her claim for a "sum certain" to the Responsible Party. How this requirement can be applied in the context of the BP oil spill is unclear. The long term effects on the environment and fisheries may not be known for many years.

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law, and the defendants' motions to dismiss were granted by the court. Consider OPA sections 2702 (b)(2)(B) and ( E) . Was the court's ruling correct?

A second class of claimants, known as BP Dealer claims, were claimants who alleged that they were in the business of marketing BP branded fuels and that they lost money because of consumer animosity toward BP after the spill. The court ruled that these BP Dealer claims were not viable under state or general maritime law and also were not viable under OPA subsections (B) or (E). Was this correct? The ruling under subsection (B) was based on the fact that the BP Dealers' property was not physically touched by the oil; the ruling under subsection (E) was based on the lack of any causal role the destruction of resources or property played in producing the damages.

The third class of claimants, known as Recreation Claimants, were recreational fishermen, recreational divers, beachgoers, and recreational boaters that alleged they suffered damages to their enjoyment of life from their inability to use portions of the Gulf of Mexico for recreational and amusement purposes. The court dismissed these claims as well under OPA as well as state and maritime law. Was this the correct ruling?

What about claimants whose property lost value because of the spill and who sold their property for the diminished value? What about the real estate brokers involved in these transactions who suffered reduced profits in these sale transactions?

NOTES AND QUESTIONS

1. Applicability. Compare the applicability of the CLC and OPA. While the CLC applies only to spills from ships which carry oil in bulk as cargo---laden tankers. What about OPA? Would any international liability regime apply to a discharge from an offshore oil or gas facility such as the rig Deepwater Horizon?

2. Bunker oil spills. In 2001, the International Convention on Civil Liability for Bunker Oil Pollution Damage was promulgated by IMO. This Convention entered into force in 2008; the US is not a party. Does OPA cover bunker oil spills?

3. Liability. Who is liable for damages under the CLC? Who is liable under OPA?4. Defenses and exclusions to liability. Are any exclusions or defenses to liability applicable under the

CLC or OPA?5. Limitation of Liability. For the owners of the SS Persian Festiva, what liability limits apply under OPA?

Under the CLC? Under what conditions can the limits under OPA be disregarded? See O PA section 2704(c).

6. Limitation of Shipowners' Liability Act. Can the owners of the 55 Persian Festiva invoke the US Limitation of Shipowners' Liability Act to further limit liability under OPA 90? In international law shipowners enjoy the right to limit liability for certain damages under the International Convention on Limitation for Liability for Maritime Claims (1957, 1976, and 1996), but Article 3 of this Convention, Article 3, excludes limitation for pollution claims.

7. Categories of recoverable damages. What categories of da mages are recoverable under the CLC? Under OPA?

8. Elements of proof for each damage category. Read OPA section 2702 with ca re. Section 2702( a )requires proof that all removal costs a n d damages claimed "result from" the oil pollution

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incident. Moreover, each subsection of section 2702 (b) contains additional elements of proof that must be carried by claimants. Parse each of these subsections for the additional elements of liability.

9. Clean-up and removal responsibility. The International Convention on Oil Pollution Preparedness, Response, and Cooperation (OP RC) of 1990 requires states to have oil spill response and clean-up plans in place. In the United States the US Coast Guard has this responsibility. The U S and Canada have concluded a n agreement to create a Canada-US Joint. Marine Pollution Contingency Plan for response to a transborder spill of oil or a hazardous substance. See http://www.uscg.mil, accessed 20 November 2012.

10. Spills of hazardous and noxious substances. I n United States law, a separate liability regime, the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC sees. 9601 et seq., permits recovery of response costs and damages from responsible parties in cases of spills of hazardous or noxious substances. On the international level, IMO has promulgated an International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (1996) ( HNS Convention), but the HNS Convention has not received the n umber of ratifications needed to come into force.

11. Damage recovery by Canadian claimants. Canada is a party to the CLC and Fund Conventions as incorporated into Canadian law by the Marine Liability Act (S.C.2001, C. 6), section 5 1. UnderCanadian law and the Conventions, a four tier liability scheme will apply. First, under the CLC as amended, SDR 89.77 million in Canadian dollars will be available to pay claims. This sum will typically be covered by compulsory insurance carried by the ship, so that in practice this amount will be paid by the insurer, a protection and indemnity (P&I) club. Second, if outstanding claims exceed this sum, the second tier of money available to pay claims is the International Oil Pollution Compensation Fund (IOPC Fund) created under the Fund Convention. The maximum amount available under the IOPC is SDR 203 million, inclusive of the tier one compensation. Third, Canada is a party to the Supplemental Fund Agreement of 2003, which provides an additional amount up to a maximum of SDR 750 million, inclusive of the compensation available under tiers one and two. Under Canadian law a fourth tier of compensation is available: Canada's Ship Source Compensation Fund provides a maximum of Canada $ 155 million when funding from the first three liability tiers is exhausted, exclusive of the funding from tiers one, two and three. The fund's administrator must attempt to recover reimbursement to this fund by the responsible party. Canada would set up a claim procedure to which Canadian claimants would apply that would be separate from the claim procedure in the United States under OPA.

12. Damage recovery by US claimants. Under OPA US claimants must first present their claims to the responsible pa or parties. In the case of the 55 Persian Festiva, the maximum amount available to pay claimants (unless the limit can be broken) is $600 million. OPA requires that ships carry mandatory insurance to pay claims. 33 USC sec. 2716. Claims not paid within 90 days by the responsible parties may be presented to the U S Oil Pollution Liability Trust Fund, which may pay claims up to a maximum of $1 billion per incident. (26 USC sec. 9509(c)).

13. State law liability. OPA section 2718 i s a savings clause for state law. Do you agree with the Deepwater Horizon court's ruling that state law did not apply in that case?

14. Liability under the general maritime law. The general maritime law provides a ca use of action for damages ca used by negligent conduct. There are important differences between liability under OPA and liability under the general maritime law, such as the applicability of the Robins Dry Dock ruling. Do you agree with the court's analysis regarding the OPA savings clause section 2751 (e) and the issue of preemption of the general maritime law by OPA?

15. Punitive damages. Are punitive damages available under OPA or the general maritime law? In the final episode of the litigation sparked by the wreck of the Exxon Valdez, Exxon Shipping Co. v. Baker,

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554 US 471 (2008), punitive damages are available under the general maritime law but are limited to a 1 to 1 ratio with compensatory damages.

16. Recovery by Canadian claimants under OPA . Note that OPA section 2707 permits recovery by foreign claimants. What are the conditions to such recovery? Before OPA was enacted, the United States reimbursed Canada for damages incurred in a transboundary oil spill in St. Lawrence Seaway. See United States v. Oswego Barge Corp., 664 F . 2 d 327 (2d Cir. 1981).

17. OPA claim procedure. The claim procedure under OPA requires presentment of claims to the responsible parties and filing claims in court. I n the Deepwater Horizon litigation, most claims were consolidated by the Judicial Panel on Multidistrict Litigation in the Eastern District of Louisiana, which divided the various claims into pleading "bund les." Both individual and class action claims may be filed. The Deepwater Horizon claims are also being handled in an extrajudicial forum. After a meeting with President Barack Obama in June 2010, BP agreed to create a fund of $20 bill ion to compensate victims of the disaster and to disburse this money through a specially created entity, the Gulf Coast Claims Facility (GCCF), which is constituted as "an independent claims facility for the submission and resolution of claims of individuals and businesses for costs and damages incurred as a result of discharges due to the Deepwater Horizon incident." See http:l/www.gulfcoastclaimsfacility.com, accessed 20 November 2012. BP has designated Kenneth Feinberg, Esq. as claims administrator of this $20 billion fund. Mr. Feinberg is fully responsible for the administration and disbursement of the fund and is charged to act independently of BP. Claims are processed by the GCCF according to rules devised by the administrator. Claimants may file claims both with the GCCF and the court, but a claimant can accept only one avenue of compensation.

18. Claim procedure under the international regime. By contrast, the claims procedure of the international regime. is left to national courts; a claim may be fi led only in the state in which the damage occurs. Once the CLC fund established i n the national courts is exhausted, the IOPC Fund will establish local offices in the country involved to pay claims. The IOPC claims process is essentially a n out-of-court settlement in which claims are handled according to criteria in the IOPC Claims Manual, adopted by the Fund's Assembly of Parties.

19. Pure economic loss damages. Many of the claimants in the 55 Persian Festiva hypothetical problems will present claims for purely economic losses without any accompanying proprietary damages. Many of these losses will be very real: commercial fishermen who cannot fish; motels and restaurants and other marine-dependent businesses will suffer financial hardship. American law has long a p plied a bright-li ne---no recovery-rule for purely economic losses under the authority of the decision of the Supreme Court i n Robins Dry Dock v. Flint, 275 US 303 (1927), and this holding is widely applied under the general maritime law34 and state law.35 What is the status of the Robins Dry Dock rule under OPA according to the court's opinion in the Deepwater Horizon case? But what is the limit to recovery for purely economic losses? Is the court's ruling too broad? One way the court could have limited recovery of purely economic losses would be the following: Under OPA section 2702, two levels of proof are required to recover purely economic losses. A first level of proof is required by section 2702(a), which requires that the losses must "result from" the pollution incident. This language should be interpreted as a requirement of proximate as well as actual causation that must be proved as a condition to liability. If we interpret section 2702(a) as requiring p roof of proximate causation, we limit the open-endedness of recovery for purely economic losses. A second level of proof is required to recover economic loss damages under section 2702 ( b )(2)( E): the

34 E.g., Louisiana ex rel. Giuste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985) (en banc); Taira Lynn Ltd. No. 5 v. Jays Seafood, Inc., 444 F.3d 371 (5th Cir. 2006).

35 Dan B. Dobbs, The Law of Torts sec. 452, p. 1282 (2000).

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claimant must prove that the loss is "due to the injury, destruction, or loss of real property, personal property, or natural resources." Should this "due to" language be interpreted to require a claimant to prove ownership of the damaged property or natural resources? This is the key issue---Robins Dry Dock says yes; the court in the Deepwater Horizon opinion says no. Which is correct? The problem is that if we answer this question "no" do we compensate all purely economic losses in the case of an oil spill? If we interpret section 2702(a) to require economic loss claimants under section 2702 (b)(2)(E) to prove proximate causation, we limit purely economic loss recovery to those claimants who can show foreseeability and pass other proximate cause tests. How does the international law regime handle purely economic losses? According to the Claims Manual of the IOPC, the Fund evaluates economic losses according to the following criteria:• The geographical proximity of the claimant’s business activity to the contaminated area;• The degree to which the claimant's business i s economically dependent on the affected

coastline;• The extent to which the claimant had alternative sources of supply or business opportunities;

The extent to which the claimant's business forms an integral part of the economic activity of the area affected by the spill.

Thus the Fund pays economic claims on a selective basis. Are these similar to proximate cause criteria that an American court may well use?

20. Criminal, administrative and civil penalties. The US Clean Water Act authorizes the imposition of substantial criminal, administrative and civil penalties in a case of an oil spill or a spill of a hazardous substance. 33 U SC sees. 1319 to 1321. I n t h e Deepwater Horizon case, a settlement was reached on November 15, 2012, on criminal penalties against BP, which pleaded guilty to 14 criminal counts and agreed to pay the sum of $4 billion over five years. Two BP supervisors were also indicted for manslaughter because of the deaths of 11 workers on the Deepwater Horizon rig. BP and other companies involved are being sued by the US Department of Justice for liability for civil penalties of up to $ 20 billion.

NOTE ON NATURAL RESOURCE DAMAGES

Both United States law and international law provide for the recovery of damages to natural resources, but the process of recovery and measurement differs greatly.

1. United States law. In the United States, both OPA 90 [33 U SC sec. 2702] and CERCLA [42 USC sec. 9607(f) (1)] provide for recovery of natural resource damages. OPA defines natural resources broadly as including, "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other resources belonging to, or otherwise controlled by the United States (including the resources of the exclusive economic zone), any State, or local government or Indian tribe or foreign government." Sec. 2701(20). Only government entities designated by the President or authorized officials as trustees --federal, state, tribal, and foreign---may recover such natural resource damages. See sec. 2702(b) andsec. 2706 (b) (1)-(5). The responsibilities of trustees are set out in Sec. 2706 (c) and 40 CFR sec. 300.615. Liability for natural resource damages is strict, joint and several and is placed upon the responsible parties. Sec. 2702(a). Note that natural resource liability under OPA is limited to the amounts specified under the Act, but the limits do not apply if the incident was proximately caused by gross negligence or willful misconduct or violation of a federal safety regulation. Sec. 2704.

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Note that the standard of liability for natural resource damages as set out in sec. 2702(a) and (b)(2). Section 2702(a) requires that the damages must "result from" the pollution incident.

OPA regulations (15 CFR Part 990) provide a three step process for determining natural resource damages as detailed in the Flow Chart of the NRDA Process: a Preassessment Phase, a Restoration Planning Phase, and a Restoration implementation Phase.

In the Preassessment Phase the trustees must determine the scope of their jurisdiction under OPA and decide if it is appropriate to try to restore the damages resources. The trustees determine whether there are injuries to natural resources that have not been remedied and whether there are feasible restoration actions available to fix the injuries. 15 CFR Subpart D.

In the Restoration Planning Phase the trustees prepare a Notice of Intent to Conduct Restoration, which is delivered to the responsible parties and, after injury identification and quantification and consideration of alternative options for restoration, a Final Restoration Plan is adopted after public review and comment. Restoration alternatives are evaluated on the basis of their cost, the extent to which they meet the goal of returning the resources to their baseline condition, the likelihood of success, the extent to which future injury will be avoided, the extent to which the option benefits multiple resources, and their effect on public health. 15 C F R sec. 990.54.

In the Restoration Implementation Phase the trustees implement the designated restoration plan and monitor its effectiveness. Restoration can include restoring, replacing, rehabilitating, or acquiring the equivalent of the natural resources harmed or destroyed by the pollution incident. 15 CFR sec. 990.30. Two kinds of restoration are called for: (1) primary restoration is restoring the resource where the injury occurred; (2) compensatory restoration is action or payment to make up for the interim or perm anent loss of a resource. OPA regulations also permit emergency restoration actions and early restoration actions. These are forms of compensatory restoration that may be necessary or advisable to carry out actions designed to restore habitat, shore lines, marine ecosystems or to enhance human uses of the polluted area without waiting for the adoption of the Final Restoration Plan. 15 CFR sec. 990. 26. In the case of the BP Deepwater Horizon incident, BP agreed to make available the sum of $1 billion for early restoration activities in the affected area of the Gulf of Mexico. See Press Release of April 2 1, 20 11, http://www.restorethegulf.gov/release, accessed 12 November 2012. The responsible parties must pay the cost of both primary and compensatory restoration as detailed in the Final Restoration Plan. On judicial or administrative review, the Final Restoration Plan benefits from a rebuttable presumption of validity. Sec. 2706 (e)(2).

Natural resource damages recoverable from the responsible parties under OPA include: (1) the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the damaged natural resources; (2) the diminution of value of those natural resources pending restoration; and (3) the reasonable cost of assessing those damages. Sec. 2706(d). Upon completion of the Final Restoration Plan, trustees may present a demand for compensation to the responsible parties, who must respond to this demand within 90 days. 15 CFR sec. 990.62. If the responsible parties for some reason cannot be made to pay, the bill for NRDA can be presented to the Oil Pollution Liability Trust Fund. Sec. 2712.

Because most NRDA cases have been settled before trial, reported cases on natural resource damages are rare. A leading case that antedates OPA is Puerto Rico v. SS Zoe Colocotroni, 456 F. Supp. 1327, aff’d in part, 628 F. 2d 652 (1st Cir. 1980). In this case, involving a spill of some 5000 tons of crude oil in the Bahia Sucia, a local bay, the Court of Appeals ruled that the correct standard for the recovery of natural

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resource damages is "the cost reasonably to be incurred by the sovereign or its designated agency to restore or rehabilitate the environment of the affected area to [its] pre-existing condition, or as close thereto as is feasible without grossly disproportionate expenditures." The court also ruled that the common law rule measuring damages as the difference in monetary value of the property before and after the event causing the injury was inadequate. However, the court also rejected the lower court's use of replacement value of non-commercially valued organisms as a measure of damages because these creatures "would replenish themselves naturally if and when restoration---either artificial or natural---took place."

Thus the correct measure of damages for primary restoration appears to be the reasonable cost of implementing the selected option of restoration or rehabilitation of the resources or of acquiring equivalent resources. The most controversial aspect o f NRDA is the problem of valuing the diminution of value of the resources pending restoration---compensatory restoration. How should these losses be measured? OPA regulations require a method called "resource scaling" : the trustees determine the scale of actions required to make the environment whole. Using resource-to-resource and service-to-service scaling an estimate can be made of the cost of producing the natural habitat and the services that are equivalent to those that have been lost. 15 CFR sec. 990.53. If, however, resource scaling is deemed insufficient or infeasible, a second option is "valuation scaling"---an attempt to measure the value of the lost habitat and services. Valuation scaling o pens the door to unconventional and controversial valuation techniques such as "contingent valuation" (CVM). CVM uses personal interviews, telephone interviews, and mail surveys to ask individuals their willingness to pay for a given resource contingent on the existence of a hypothetical situation: for example, how much would you expect to pay to assure the preservation of the native bird life in a given coastal marsh. CVM is defended by environmentalists as a method of measuring the immeasurable: the "non-use value", "passive value", "inherent value" or "existence value" of natural resources. See Frank B. Cross, Natural Resource Damage Valuation, 42 Vand. L. Rev. 269 (1989). But many criticize CVM as producing wildly inaccurate estimates of value because individuals are asked to respond to hypothetical situations about which they have little information or experience. See Charles J. Di Bona (President of the American Petroleum Institute), 1992 Issues in Science and Technology SO.

The debate over CVM is unresolved, but no court seems to have accepted CVM as a measurement technique. In State of Ohio v. Department of the Interior, 880 F. 2d 432 (D.C. Cir. 1989), a case involving judicial review of the NRDA rules adopted under CERCLA, the court did not invalidate the regulations permitting the use of CVM and other hypothetical valuation techniques, but invalidated a rule requiring the trustees to choose between "the lesser of' restoration cost and diminution of use and non-use values, because this "lesser of' rule violated the intent of the Congress to prefer restoration. In General Electric Co. v. US Department of Commerce, 128 F. 3d 767 (D.C. Cir. 1997), the court largely rejected an industry attempt to invalidate the OPA CVM regulations, so both the OPA a n d CERCLA regulations as they now stand have survive d court challenges. However, several courts specifically confronted with. CVM have rejected CVM surveys as speculative and unreliable. For exam ple, in United States v. Montrose Chemical Corp., No. CV 90-3122-R (C.D. Cal . Apr. 17, 2000) ( No. 1914), the court excluded a CVM survey offered by the government to measure lost existence values with regard to two species of birds (bald eagles and peregrine falcons) and two species of fish (white croaker and kelp bass). See alsoIdaho v. Southern Refrigerated Transp., Inc., No. 88-1279, 1991 US Dist. Lexi s 1869 (D. Idaho 1991).

Thus the measurement of this statutorily mandated damage category is open to question.

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2. International law. The CLC and the Fund Convention liability regimes sharply restrict the recovery of natural resource damages. In 1980, the Funds' Assembly adopted Resolution 3 [ FUND/A/ES. 1/13], which states: "the assessment of compensation to be paid by the Fund is not to be made on the basis of an abstract quantification of damage calculated in accordance with theoretical models." This resolution was inspired by the fact that, following the grounding of the tanker Antonio Gramsci in the Baltic Sea, the Soviet government claimed environmental damages based on the formula-2 Russian rubles percubic meter of polluted waters. In addition, the 1992 CLC and Fund Conventions provide that "compensation for impairment of the environment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken." CLC Art. 1(6) and Fund Convention Art. 1(2).

Despite these limits, famous cases have found ways to grant more generous natural resource damages. In 1985, when the tanker Patmos sank off the coast of Calabria (Italy), and the IOPC rejected claims for natural resource damages, the Italian government brought suit in the Italian courts against the IOPC and the tanker's insurer, the UK P&I club. The court of first instance rejected the claim, but this decision was reversed by the Court of Appeal, which interpreted the CLC 1969 Art. 1(6) to allow equitable claims for damage to the environment which may be established by a panel of experts. Although the experts appointed by the court found damages to fishing activities in the amount of British Pounds Sterling (BPS) 465,000 (about $700,000), the court without explanation awarded a final judgment of BPS 827,000. Tribunal of Messina, Judgment of 24 June 1985 [1986] Dir. Mar. 439 and I OPC Annual Report 1990, p. 23-27. I n the case of the tanker Haven, which in 1991, caught fire and spilled some 10,000 tons of oil into the Gulf of Genoa (Italy), the IOPC also rejected natural resource damages, sparking a suit by Italian government. In the event, the Court of First Instance interpreted the CLC and Fund Conventions to perm it natural resource d a m ages and awarded 40 million lire in damages (about $20 million), a decision which the IOPC termed "absurd". [FUND/EXC48/4 (1996)]. See Tribunal of Genoa, Judgment of 29 May 1991 [1991 Dir. Mar. 793. On appeal the Italian government claimed that the damages should be increased to 883,435 million lire. In the end, the shipowner and the UK P&l Club, the insurer, made an ex gratia payment of 25 million lire in addition to the 40 million lire in damages to the Italian government to settle the case. See IOPC Annual Report 1999, para. 10.2.

3. Canadian law. Canada is a party to the 1992 CLC and Fund Conventions and, accordingly, Section 51(2) of the Canada Marine Liability Act (S.C. 2001, c. 6) provides that natural resource damages are limited to the "costs of reasonable measures of reinstatement actually undertaken or to be undertaken." However, in the Canfor case, British Columbia v. Canadian Forest Products, Ltd., 2004 SCC 38, (2004] 2 SCR 74, the Supreme Court of Canada ruled that in principle environmental damages may be recovered by the Canadian government for damage to publicly owned natural resources beyond the commercial value of the resources involved. The Canfor case was a non-maritime tort action for damages brought by the government of British Columbia seeking compensation from a company responsible for causing a forest fire that destroyed about 1,500 hectares of public forest lands. Although the claim for environmental damages was dismissed, the court did so for lack of evidence and stated that British Columbia could have obtained the damages sought had it provided proper pleading and evidence. The court did not provide any guidance on how natural resource damages should be measured.

In the case of Problem 7-8 would you advise the Canadian government to sue in tort under Canadian law to recover natural resource damages in excess of those permitted under international law?

Could the government of Canada use OPA 90 to recover a greater amount of natural resource damages than that permitted under international law? See OPA section 2707.

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SECTION VIII. MARINE FISHERIES

A. FISHERY RESOURCES

Exploitation of the world's marine fisheries has increased dramatically, from 16.8 million tons in 1950, to a peak of 86.5 million tons in 1996, then leveling off to a current rate of about 80 million tons per year at the present time. Virtually all of the world's stocks of the top ten species of fish, which account for about 30 percent of marine capture fish production, are fully exploited; some 29.9 percent of fishery stocks are overexploited, producing lower yields than their biological and ecological potential and therefore require strict management to restore their full potential . World trade in fish products has also grown exponentially, setting a record at U S $ 111.8 billion in 2010, and increasing at a rate of some 15 % per year. The total number of fishing vessels in the world is estimated at about 4.36 million, and fisheries and aquaculture provide employment for an estimated 54.8 million people engaged in the primary sector of fishing.36

Marine fisheries constitute a classic common resource. Fishery resources may be exploited by everyone so that individuals reap the benefit of the resource without regard to the cost of depletion of the resource until the resource is degraded for all. This is what is known as the "tragedy of the commons". See Garrett Hardin, The Tragedy of the Commons, 162 Science 143-48 (1968). In addition, fishing is commonly subsidized by many nations. Fisheries subsidies are estimated by the World Trade Organization to amount to between USD 14 to 20.5 per year, about 20 to 25 % of global fishing revenues.37 Subsidies obviously encourage overexploitation of fish stocks. The Doha Development Agenda, an international trade negotiation initiated in 2001 by the WTO seeks to reduce or eliminate fishing subsidies, but no agreement on this issue h a s been reached.

Global marine fishery production has reached or exceeded its maximum potential, and careful management of fish stocks is essential just to maintain the present rate of exploitation. It is essential to establish sustainable management of all fisheries and to eliminate the causes of unsustainable fisheries, such as illegal fishing, inadequate or ineffectively implemented conservation and management measures, disregard for the interdependency of marine living resources, and environmental degradation. Customary and treaty law have developed sophisticated legal regimes governing fisheries, which we cover in this sect ion.

The international law of fisheries management adopts a sectoral approach that specifies different management regimes for areas of national jurisdiction, the exclusive economic zones and archipelagic waters, on the one hand, and the high seas, on the other. In addition, regional fisheries management organizations (RFMOs) are now at the heart of the fight to achieve sustainable fisheries under international law.

B. UNCLOS PROVISIONS

The provisions of UNCLOS provide the framework for fisheries management under international law. UNCLOS contains provisions addressing fishing in national EEZs and on the High Seas; UNCLOS also

36 United Nations Food and Agriculture Organization, World Review of Fisheries and Aquaculture, 2012, pp. 3-10.

37 See http://www.wto.org/english/tratop_e/rulesneg_e/fish.

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addresses particular fishing stocks that range over both of these zones. Note especially the following provisions.

1) EEZ provisions:• Article 56 grants extensive rights over fishing to the coastal state within its EEZ. Extensive

enforcement powers are granted to the coastal state by Article 73.• Article 6 1 imposes duties of conservation on coastal states. What are the contours of these

duties?• Article 62 provides for coastal state "utilization" of living resources within its EEZ and states the

objective of "optimal utilization." Under this article the coastal state exercises extensive powers to limit foreign fishing within its EEZ. Can a coastal state exclude foreign fishing altogether?

• Articles 69-71 concern the rights of land-locked and geographically disadvantaged states to fish in the EEZs of coastal states.

2) Certain articles of U NCLOS address particular stocks of fish without regard to what maritime zone they are found:

• Article 64 concerns highly migratory species. Note that these species are defined in UNCLOS Annex I.

• Article 65 concerns marine mammals.• Article 66 deals with anadromous stocks.• Article 67 deals with catadromous stocks• Articles 68 and 77 concern sedentary species.

3) Certain UNCLOS provisions concern fishing on the High Seas:• Article 87 concerns freedom to fish on the High Seas.• Article 116 qualifies the freedom to fish on the High Seas. What are these qualifications?• Article 117 requires states to take measures requiring their nationals to conserve the living

resources of the High Seas.• Article 118 requires states to enter into cooperative arrangements for the conservation of the

living resources of the High Seas.• Article 119 states particular criteria for conservation of the living resources of the High Seas.

What are these criteria?• Article 120 states that Article 65 concerning marine mammals also applies to the

conservation and management of marine mammals on the High Seas.

4) One provision of UNCLOS applies specifically to so-called "straddling stocks” of fisheries—fisheries stocks that range over one or more EEZs or over EEZs and the High Seas.

C. NATIONAL FISHERIES MANAGEMENT SYSTEMS

Under UNCLOS the territorial sea and archipelagic waters are part of the territory of a coastal state. Foreign vessels exercising the right of innocent passage are not allowed to engage in fishing activities. Nevertheless, even in these national zones coastal states must take into account Article 193 of UNCLOS, which recognizes the sovereign right to exploit natural resources, but imposes a duty "to protect and preserve the marine environment."

The main international regime for exploitation, management and conservation of marine living resources under UNCLOS is the exclusive economic zone (EEZ). Within this 200 nautical mile zone the coastal state is recognized to have sovereign rights over all living resources without exception.

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International law standards under UNCLOS governing the coastal state's management of fishery resources in its EEZ are set out in Articles 6 1 and 62. Read these provisions carefully. Is the coastal state obliged to maximize the production of its coastal fisheries? Is there a contradiction between Article 61, which requires maximum sustainable yield, and Article 62, which requires optimum utilization? What limits are there on the coastal state's freedom to determine harvesting capacity? Is the coastal state required to provide access to its EEZ fisheries to fishing vessels from other states? To what extent does the coastal state have a duty to cooperate with other states in setting the harvesting capacity in its EEZ?What limits are there on the coastal state's ability to specify conservation measures and other restrictions on fishing? What are the duties of a flag state whose vessels operate in the exclusive economic zone of other states? See Article 58. Do coastal states have a duty to cooperate with other states with regard to fishing in their EEZs? See Article 63 (1) and Article 64.

The substance of each state's regulation of fisheries in its EEZ is up to national law. Fishery regulation in the United States is a cooperative effort under federal and state law. The states have jurisdiction over fisheries to the 3 nautical-mile limit (9 nautical miles offshore Texas and offshore Florida in the Gulf of Mexico). Federal regulation of fisheries in the remainder of the US EEZ is authorized under the Magnuson Fishery Conservation and Management Act, 16 USC sees. 1801 et seq. The Magnuson Act delegates fishery management to eight regional fishery councils: the North Pacific Council; the Pacific Council; the Western Pacific Council; the New England Council; the Mid-Atlantic Council; the South Atlantic Council; the Caribbean Council; and the Gulf of Mexico Council. Fisheriesregulation in the United States concentrates on regulations concerning particular species or groups of species of fish and setting seasonal limits, gear restrictions, size limits, catch limits, and designating marine protected areas closed to certain fishing. Federal fisheries laws are enforced by the United States Coast Guard. The regional fisheries councils are coordinated by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration of the US Department of Commerce. Each year the NMFS reports to Congress on the state of US fisheries. I n its 2011 report, Status of Stocks2011: Annual Report to Congress on the Status of US Fisheries, the NMFS concluded that 174 fishing stocks (79%) are not overfished, while 45 fishing stocks (21%) are overfished.

A quite different form of fishery regulation is exemplified by New Zealand fishery law.38 NewZealand's extensive EEZ is divided into 10 different regional zones. In each of these zones, New Zealand Law, the Fisheries Act of 1996, establishes a quota management system, which covers some 95% of commercially valuable species of fish (96 different species and 628 different stocks). The first step in this system is that biological studies of a particular fish stock establish the stock's maximum sustainable yield (MSY) for the year in question. Second, using MSY data, the Primary Industries Ministry establishes an annual total allowable catch (TAC) for each fish stock. Third, a portion of this TAC is allocated to recreational fishers and to native Maori groups under the Maori Fisheries Act 2004. The remainder of the quota after this allocation becomes the total allowable commercial catch (TACC). This TACC is then allocated to fishing individuals and companies as Individual Transferable Quotas (ITQs), which provide an annual catch entitlement (ACE) for each individual for each stock in question. This ACE, which is allocated on the basis of historical fishing factors, is freely transferable; transfers are recorded in a public registry. An ITQ holder can sell all or part of his ACE or purchase additional ACEs. Commercial and recreational fishers must obtain a fishing license to participate in this scheme. Fishing vessels must also be registered. The system is enforced through a "catch balancing regime" that requires fishers who catch more than their allocated ITQ to pay a civil penalty. Criminal penalties are provided for fishing 38 See OECD Country Note on National Fisheries Management Systems, New Zealand, available at http://www.oecd.org/newzealand.

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without a license or for using an unregistered vessel. The New Zealand fisheries authorities state that they use the same methods as developed in the United States to measure overfishing, and according to these methods, 15% of New Zealand stocks are overfished, a slightly better record than in the United States.

Do you think the New Zealand fisheries regulation scheme is superior to that of the United States? What method do you think is best?

Consider the following problem.

PROBLEM 7-9FISHERY MISMANAGEMENT IN THE EXCLUSIVE ECONOMIC ZONE

States A and B are both parties to UNCLOS and are geographically adjacent coastal states, sharing a large and productive coastal fishery that is continuous in each of their respective exclusive economic zones. In State B fishery management administration is dominated by commercial and sport fishing interests and these interests, have successfully resisted all efforts to manage fishing within the EEZ of State B that would have assured the survival of a commercially valuable stock of flounder, a groundfish that does not migrate long distances. Furthermore, since ratifying UNCLOS, State B has maintained that it has the capacity to exploit all of the fishing stocks in its EEZ, and State B grants fishing permits and licenses only to nationals of State B.

State A and State B have agreed on the delimitation of their lateral maritime boundary line. State B aggressively enforces this boundary line, and on two occasions, coast guard boats authorized by the

government of State B have fired on fishing vessels from State A that have inadvertently crossed over the maritime boundary line by a few meters. On the second occasion three fishermen from State A suffered serious injuries. On a third occasion, a fishing boat from State A was confiscated by authorities from State B, and the master of the vessel was convicted of violations of State B's criminal laws and sentenced to a term in prison.

State A manages the fishing stocks within its EEZ on the basis of maximum sustainable yield . State A strictly enforces Fisheries regulations, which include the licensing of fishing boats and fishing personnel, catch and seasonal limits, and the regulation of fishing methods and equipment. None of State A's fishing stocks are considered overexploited, and the flounder fishery in State A is still productive. However, State A has received information from experts that the flounder stock in State B is on the verge of collapse and that the collapse of this fishery in State B will have a negative impact on the founder fishery in State A, particularly in the maritime boundary region. State A is also concerned by the use of force by State B to defend its maritime boundary line. State A also believes that, if State Bproperly managed its flounder fishing stocks, it would have excess capacity, so that access by non-State B national s, including fishermen from State A, to exploit State B's flounder fishery would be feasible.

State A is contemplating bringing a n action for dispute settlement against State B. Both State A and State B have selected the arbitration proceedings of UNCLOS Article 287, para. 1(c), as the applicable forum for compulsory dispute settlement under UNCLOS.

1. Is compulsory arbitration in accordance with UNCLOS Annex VII the applicable dispute settlement forum? If not, what is the applicable forum, if any?

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2. What if States A and B desire this dispute to be decided by the International Tribunal for the Law of the Sea. Does ITLOS have jurisdiction?

3. What is the scope of the dispute forum's jurisdiction? Can the dispute forum decide only questions relating to UNCLOS, or can it also decide additional questions of the international use of force?

4. Before State A brings its action before a dispute settlement forum established by UNCLOS, must it exhaust domestic remedies that might be available under the domestic law of State B?

5. Should State A ask t h e dispute settlement forum for provisional measures under UNCLOS Article 290?

6. State A would like to introduce certain scientific evidence by its experts in order to prove violations of good fisheries practices by State B. Can scientific evidence be introduced and considered by the dispute settlement tribunal?

7. States C and D, also parties to UNCLOS may be interested in the outcome of this case. Can third party states intervene in this dispute settlement proceeding? Can private industry parties from State B intervene?

8. What are the criteria for enforcing access and the requirements of the coastal state in its EEZ? Did State B violate UNCLOS Article 73 or Article 292 in taking enforcement measures?

9. How should this case be decided on the merits? Can the Court compel State B to offer access to its flounder fishery to nationals from State A?

10. Is the obligation to cooperate in Article 63, para. 1 enforceable?

11. What remedies are available? State A would like to obtain injunctive relief as well as damages from State B.

D. HIGH SEAS FISHERIES

1. UNCLOS provision and Supplemental Fisheries Agreements

Beyond the exclusive economic zones lie the High Seas, which, even with the expansive EEZs of coastal states, cover about 70 percent of the world's ocean areas. In this section we take up the problem of fishing on the high seas.

Article 87 of UNCLOS provides that all states are free to fish on the High Seas, but Article 116 states that this freedom is not absolute, but is subject to important conditions and limitations:

1. The state's treaty obligations;2. The rights and duties of coastal states as provided in UNCLOS Articles 63, para. 2, and

Articles 64 to 67; and3. The provisions of Articles 117 to 120.

These three categories of obligations require comment.

(i) Treaty obligations. In the last twenty-five years important treaties have been concluded with regard to fishing on the High Seas. These treaty obligations are intended to supplement and to reinforce the general provisions of UNCLOS.

• The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993, in force, 2003) (Compliance Agreement).

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The Compliance Agreement was adopted under the auspices of the Food and Agriculture Organization (FAO) as part of the FAO's work on a Code of Conduct for Responsible Fisheries. Unlike the Code, which is voluntary, the Compliance Agreement is a legally binding treaty. The Compliance Agreement, which is reprinted in the Documentary Supplement, defines with particularity the responsibility of flag states with respect to fishing vessels on the High Seas that fly their flag. Article III, the heart of the Agreement, obligates flag states to take "such measures as may be necessary'' to ensure that their fishing vessels do not undermine international fishery conservation and management measures. Article III (3) deals somewhat obliquely with the issue of reflagging, the practice of changing the national registration of a fishing vessel as a means of avoiding compliance with international conservation and management measures. This article provides that "No Party shall authorize any fishing vessel entitled to fly its flag to be used to fishing on the high seas unless the Party is satisfied that it i s able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel." This provision is intended to discourage states from accepting vessel reflagging. The Compliance Agreement also sets out obligations requiring monitoring and exchange of information; international cooperation; and dispute settlement. The Compliance Agreement is the first global agreement on flag state responsibility. Article IX on Settlement of Disputes does not entail mandatory dispute settlement, and this article seems to detract from the UNCLOS provisions on dispute settlement and contributes to the fragmentation of the legal regime governing fishing activities.

• 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 (1995, in force 2001). (Fish Stocks Agreement or Straddling Stocks Agreement). The Fish Stocks Agreement is intended to promote the enforcement of conservation and management measures with respect to fishing activities on the High Seas with respect to straddling stocks---fish stocks that range over zones of national jurisdiction and the High Seas as well as highly migratory fish stocks, which are listed in Annex I of UNCLOS. The Fish Stocks Agreement provides an elaborate list of obligations that the flag state must observe, and, consistently with the UNCLOS, confirms and strengthens the principle of exclusive flag state jurisdiction on the High Seas as set forth in UNCLOS Articles 91 and 94.

• The Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (2009, not in force) (Port State Measures Agreement).

The Port State Measures Agreement was formulated and adopted under the auspices of the FAO in order to bolster port state enforcement of illegal, unreported, and unregulated (IUU) fishing. This treaty retains enforcement authority in flag states but authorizes port inspection and port states may deny the use of their ports to offending vessels.

(ii) UNCLOS Article 63, para. 2 and Articles 64 to 67.

Note that coastal states are recognized as having special rights and duties with respect to straddling stocks (Art. 63, para. 2); highly migratory species (Art. 64); marine mammals (Art. 65); anadromous stocks (Art. 66); and catadromous stocks (Art. 67). To what extent does the Fish Stocks Agreement supplement these provisions?

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(iii) UNCLOS Articles 117 to 120.

These provisions require states to cooperate with respect to adopting conservation and management measures applicable to fishing on the High Seas, to cooperate with regional fisheries management organizations, to use best scientific information in formulating conservation and management measures, and to apply those measures to their nationals.

NOTE ON INTERNATIONAL AGREEMENTS GOVERNING DRIFTNET FISHING ON THE HIGH SEAS

Driftnets are a form of net that traps fish by their gills, a technology that goes back thousands of years. Until the 1950s the size of driftnets was limited by the weight of the natural fibres (hemp or cotton) from which they were made. Driftnets became much larger, however, with the advent of synthetic fibres and efficient winches. By the 1960s driftnets that were 10 to 60 kilometers in length were deployed in many areas of the world, permitting fishers to gather a large catch of fish, particularly in pelagic areas. Environmental concern over driftnets has centered on the size and scope of their take and on the fact that their catch is indiscriminate, including many non-target species, marine mammals, and seabirds, which are gathered up and simply discarded. Driftnets lost or abandoned at sea last indefinitely, causing environmental disruption. At its peak in the 1980s, over 1000 vessels from many countries were operating, each night setting some 30,500 kilometers of driftnets in the world's oceans.

In the late 1980s and early 1990s, the United Nations General Assembly passed a series of resolutions calling for the end of pelagic driftnets longer than 2.5 kilometers. In 1989, the UN General Assembly adopted Resolution 44/225, which called for a moratorium on the use of large-scale driftnets beyond the exclusive economic zone of any nation by June 30, 1992; and in 1992, the UN General Assembly adopted Resolution 46/215 (31 ILM 241), which is reprinted in the Documentary Supplement, calling for a global moratorium on all large-scale driftnet fishing on the High Seas of the world's oceans and seas by 31 December 1992. These UN resolutions were non-binding, but in 1989, fifteen South Pacific nations adopted the Convention for the Prohibition of Fishing with Long Drift Nets in the SouthPacific (Wellington Convention, 1989), which commits the parties to undertake measures to combat driftnet fishing, including prohibiting the landing or processing of driftnet catches within their territory, prohibiting the importation of driftnet caught fish products, and restricting port access to driftnet vessels. Protocol 1 of the Wellington Convention commits parties that fish in the South Pacific region to prevent their nationals and vessels from using driftnets in the Convention area; Protocol II obligates parties to prohibit the use of driftnets in all areas under their fishery jurisdiction.

The United States, which joined the Wellington Convention in 1992, enacted in 1990 amendments to the 1987 Driftnet Impact Monitoring, Assessment, and Control Act of 1987, that authorizes the US Secretary of State to seek to conclude international agreements that enforce a global ban on large-scale driftnet fishing. A key provision of such agreements is the right of the US Coast Guard to board and inspect vessels flying foreign flags on the High Seas that may be in violation of the global ban. See 16 USC sec. 1826. The global ban on large-scale driftnets is a major environmental success story. Virtually all states accepted the 1992 ban, and, as of 2012, large-scale driftnet fishing on the High Seas has been eliminated except for sporadic illegal activities. See 2011 Report of the Secretary of Commerce to the Congress of the United States Concerning U .S. Actions Taken on Foreign Large-Scale High Seas Driftnet Fishing (US Department of Commerce, 2011).

Questions:

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1. Critics have charged that the moratorium on driftnet fishing was enacted without proper scientific data. See, e.g., William Burke, Mark Freeberg, and Edward Miles, United Nations Resolution on Driftnet Fishing: An Unsustainable Precedent for High Seas a n d Coastal Fisheries Management, 25 Ocean Dev, & lnt'l L. 127, 128-34 (1994) ["the US position … was based primarily on emotion and hyperbole rather than scientific data and interpretations."]. Do you agree? Should such a global moratorium be enacted only after compiling adequate scientific data and cost and benefit studies? Is there a basis in the provisions of U NCLOS to justify the global ban? See Articles 116 to l19.

2. The definition of large-scale driftnets that are subject to the moratorium under international and US law are driftnets 2.5 km. in length or more. See 16 USC sec. 1802 (25). Is this distinction justified?

3. Within national EEZs, states are free to allow or to prohibit driftnet fishing. Many nations, but not all, have banned or restricted driftnet fishing within their EEZs. I n the US, driftnets must be limited to nets not longer than 100 yards (914 meters). Should driftnet fishing be banned in the world's EEZs?

2. Regional Fisheries Management Organizations

UNCLOS Article 117 to 119 requires states to cooperate regarding the conservation of High Seas fisheries. Regional Fisheries Management Organizations are international organizations dedicated to sustainable management of High Seas fisheries or highly migratory species of fish. Some 44 RFMOs cover all species of highly migratory species and geographically cover virtually all areas of the High Seas. Although a few RFMOs are purely advisory, most have management and even enforcement powers. RFMOs also engage in scientific research and fishery development. RFMOs play an increasingly important role in the conservation of highly migratory stocks and High Seas fisheries.

Regional Fisheries Management Organizations (RFMO), are now at the heart of international fisheries management. While some RFMOs are advisory, most have management powers and make three types of decisions: (1) establishing fishing limits---total allowable catches, maxim u m number of vessels, and the duration and location of fishing; (2) establishing technical measures---how fishing activities are to be carried out, permitted gear and the technical control of vessels and equipment; and (3) conducting control measures---monitoring and surveillance of fishing activities.

Many interesting and important problems arise in connection with the operation of RFMOs.Some of these are the following:

1. Investment. To achieve optimum utilization of a -fishery resource, positive investment may be necessary. The most obvious form of investment in a renewable resource is to ensure that the harvest rate is below the net natural growth rate. Such investment will build (or rebuild) the resource. Many of the world's fisheries now are overexploited a n d require such investment in order to produce optimum returns in the future.

2. Some Conditions for Effective Cooperation.

The game theory of cooperative games assumes that all players are coldly rational and that altruism has no role. Under these conditions, game theory holds that the difficulty of achieving a stable cooperative management regime will increase with the number of participants (p layers). Not only is cooperation more difficult to achieve with more players, within the players, coalitions will almost inevitably form. Stability and

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cooperation may be disrupted if an individual or sub-coalition has an incentive to compete against the rest. An essential aspect of avoiding disruptive com petition whether by an individual member or a membership coalition is to assure now and in the future that each individual participant's and each sub-coalition's economic return from cooperation is at least as great as it would receive by acting competitively. In addition, it is important that allocation issues be resolved satisfactorily and equitably.

In order to foster effective cooperation non-compliance---the willful violation of cooperative management arrangements---must be aggressively combated. If noncompliance is widespread, the cooperative ethic necessary to the regime will break apart.

Effective cooperation will require addressing "free rider11 problems. The burdens of the regime must be shared equally among all members and non-members must not be allowed to share the benefits. An obvious aspect of the " free rider” problem is the "new member” problem. Should a new member be admitted after much investment effort by charter members has created a valuable resource? When a new member joins an RFMO the temptation is to increase the existing allowable catch in order to accommodate the new member without decreasing the shares of existing members. This solves nothing and only masks the cost to existing members of admitting a new member. The best way of solving the "new member” problem is to require new members to pay a price of admission, for example, by purchasing quotas of existing members. See Recommended Best Practices for Regional Fisheries Management Organizations (Chatham House, 2007)/ p. 1 6-17.

• Effective cooperation requires that the RFMO be resilient over time so that it may survive the political, economic or environmental shocks that inevitably may arise. To the extent that the possibility of such change can be foreseen, it may be possible to build into an agreement automatic mechanisms of adjustment to changing conditions.

• Cooperative resource management requires productive bargaining among the participants. Bargaining can be facilitated by keeping the scope for bargaining as broad as possible. For example, in the fisheries context, negotiations over allocations among cooperating states should not be confined to shares of allowable catch; cooperation can be facilitated by supplementing such allocations with, inter alia, access arrangements and quota trading.

3. The Consequences of Ineffective Cooperation. Game theory tells us much about the consequences of non-cooperation with respect to a resource. When applied to fisheries, non-cooperation carries the risk of what is known as the "prisoners’ dilemma” outcome. This term comes from a story developed to illustrate the point that, under conditions of non-cooperation, the participants (players) will be driven to adopt strategies that they know will produce inferior results. For example, consider a transboundary stock of fish shared by two coastal states. If they do not engage in cooperative management each will inevitably deplete the resource, since neither party will have an incentive to "invest” in the resource, because the benefits of such investment would accrue to the other "free rider” state.

For a good overview of RFMOs, see http://www.fao.org/fishery/ri b/search.

E. STRADDLING FISH STOCKS

Straddling fish stocks are stocks covered by U N CLOS Article 63: a situation where the same stocks or stocks of associated species occur both within the exclusive economic zone and in areas beyond and adjacent to this zone. Many commercially valuable fish stocks are highly migratory or straddling stocks

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that range over the high seas a n d exclusive economic zones. In such cases a coastal state that adopts and enforces conservation measures within its own EEZ must stand by helplessly as foreign fishing vessels line up just beyond the EEZ and fish indiscriminately. What can or should the coastal state do in such a case? There may be overwhelming political and economic pressure on the coastal state to take unilateral action, such as a declaration of extension of its EEZ beyond 200 miles (a clear violation of UNCLOS Article 89) or seizure of offending foreign vessels on the High Seas.

UNCLOS deals only obliquely with the highly migratory stocks and the straddling stocks problems. The international furor over highly migratory and straddling stocks resulted in the new agreements detailed above, especially the Fish Stocks Agreement and the Compliance Agreement. Do these agreements solve all the problems? Let us consider three famous cases that were never decided on their merits: (1) the Case of the Estai and (2) the Swordfish Stocks dispute between Chile and the European Union; and (3) the Case of the Bering Sea Doughnut Hole.

PROBLEM 7-10

THE CASE OF THE ESTAI

The case of the Estai, a Spanish fishing vessel, arose during the so-called "turbot war", a dispute over fishing for turbot (Reinharditus hippoglossoides) in the Northwest Atlantic Ocean. At this time, the early 1990s, the European Union quota for the catch of turbot was about 5 times above the quota established by the Northwest Atlantic Fisheries Organization (NAFO), a RFMO established in 1978. Out of desperation, Canada seized the Estai on the High Seas just outside Canada's EEZ in 1995 under the authority of the Canadian Coastal Fisheries Protection Act (1994), which authorized Canadian authorities to take urgent action necessary to protect fishing stocks on the Grand Banks off Newfoundland. The seizure of the Estai caused a major international crisis. Spain and the EU charged Canada with violating international law. Canada pleaded necessity. After the arrest Spain commenced proceedings against Canada in the International Court of Justice. However, the I CJ, in an important decision on jurisdiction and admissibility, ruled that Canada's optional clause declaration39 excluded the ICJ's jurisdiction. Estai Case [1998] ICJ Rep. 431 [87]. Although the Estai Case was never decided on the merits, the case was an important catalyst that led to adoption of the Fish Stocks Agreement later in 1995.

1 Why was this dispute not handled under the compulsory procedures established by Part XV of the UNCLOS? (Canada ratified U NC LOS in 2003).

2 If the ICJ or an international tribunal had had jurisdiction, how would the Case of the Estai have been decided on the merits? Consider UNCLOS Articles 63 para. 2, 64, 87, 89, 90,116,117,118,119.

3 Suppose it were proved that the Estai, just before the seizure, was fishing illegally just inside

Canada's EEZ; would Canada have a right to seize the vessel? See U NCLOS Article 111.

4 Suppose the Fish Stocks Agreement had been in force when the turbot war and the Estai incident arose; how would the matter likely have been handled under the Fish Stocks Agreement?

39 At the time, Canada’s Declaration under Art. 36(2) of the Statute of the International Court of Justice excluded from the Court’s jurisdiction “disputes arising out of or concerning conservation and management measures taken by Canada with respect to fishing vessels in the NAFO regulatory area, as defined in the Convention … and the enforcement of such measures.”

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PROBLEM 7-11

THE SWORDFISH DISPUTE

EUROPEAN UNION (EU) v. CHILE

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

DISPUTE NO. 7

During the 1990s, the EU and Chile were engaged in a dispute over what Chile considered as overexploitation of swordfish on the High Seas just outside Chile's EEZ in the southern Pacific Ocean. After many years of fruitless discussions, Chile barred EU vessels from unloading swordfish in its ports. Swordfish (Xiphias gladius), a highly prized commercial fish species, migrate freely through the vast waters of the Pacific Ocean. The EU vessels fishing for swordfish seek to land the fish in Chilean ports so that they can be exported to international markets, mainly to the United States. This unilateral measure sparked two legal actions:

1. The EU filed a complaint against Chile at the World Trade Organization charging that Chile's action was a violation of Articles V and XI of the Genera l Agreement on Tariffs and Trade (GATT). We defer this matter to Chapter 10 of this book since it concerns environment and trade.

2. Chile brought a n action against the EU in the International Tribunal for the Law of the Sea (ITLOS), charging the EU with violations of UNCLOS Articles 64 (requiring cooperation to assure the conservation of highly migratory fish species), 116-119 (conservation of living resources of the High Seas), and 300 (calling for good faith and no abuse of right). The EU countered with charging Chile with violating UNCLOS Articles 87 (freedom of the High Seas) and 89 (prohibiting any state from subjecting any part of the High Seas to its sovereignty).

In 2001, the EU and Chile reached a preliminary agreement to settle their dispute, and the ITLOS suspended the proceedings in the dispute. In 2010, Chile and the EU concluded a final agreement ending the dispute. See Understanding Concerning the Conservation of Swordfish Stocks in the South Eastern Pacific Ocean, Official Journal of the European Union, L 155/3 (22 June 2010). This Understanding opens Chilean ports to fishing vessels from the EU, but obligates both parties to enforce strict conservation and management measures relating to swordfish. The Understanding establishes an EU/Chile Bilateral Scientific and Technical Committee, requires full exchanges of information, and requires the parties to manage catch levels of swordfish at or near maximum sustainable yield levels with the objective of maintaining the sustainability of the resources and safeguarding the marine ecosystem . The parties committed to applying a precautionary approach to fishing and to take steps to develop a multilateral conservation forum for the South Pacific. On 16 December 2009, at the request of the parties, the ITLOS removed the case from the ITLOS list of cases. See Order 2009/1, International Tribunal for the law of the Sea, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Union), 16 December 2009.

Question: if the ITLOS proceeding had not been settled, how would the ITLOS have decided the case?

PROBLEM 7-12

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THE CASE OF THE BERING SEA DOUGHNUT HOLE

In the Aleutian Basin of the Bering Sea is the so-called "doughnut hole", an area of ocean that is High Seas surrounded by the EEZs of Russia and the United States (Alaska ). Because of a combination of natural factors, this area of the Bering Sea is one of the most productive fisheries in the world. The doughnut hole com p rises about 10 percent of the Bering Sea, and was treated as a "global commons" by factory fishing ships from Japan, Taiwan, Russia, Poland, Korea, and the US until the early 1990s. As a result of unregulated fishing, the fish stocks---principally Walleye pollock (Theragra chalcogramma)—crashed in 1992 to just 10 percent of their historic levels. Pollock, which at one time constituted over 50 percent of the seafood consumed i n the US, are classic straddling stocks, most of which breed in the US EEZ. In 1992, the principal fishing nations concerned declared a two year moratorium on fishing in the doughnut hole to allow fish stocks to recover.

1. What are the obligations of the fishing nations with respect to the doughnut hole under international law? Consider UNCLOS Article 116 (b): do high seas fishing nations have obligations toward coastal states? How would you define the scope of the obligations under this article?

2. How can UNCLOS Article 116 (b) be made effective? Consider UNCLOS Articles 117 to 119.3. Consider UNCLOS Article 119 para. 2, which suggests the creation of a competent international

organization.4. In 1994, the Convention on the Conservation and Management of Pollock Resources in the Central

Bering Sea was concluded [reprinted in the Documentary Supplement and in 34 ILM 67 (199S)].The parties to this Convention are: Canada, China, Japan, Korea, Poland, Russia, and the United States. Read carefully the provisions of the Convention, which seeks to maintain catches of pollock at optimum levels that do not exceed the maximum sustainable yield, requires exchanges of data and information, and provides a forum for the establishment of necessary conservation and management measures. Does this Convention solve the problem of the dough nut hole? As of this writing, the fishing resources of the doughnut hole have not fully recovered. See Kevin M. Bailey, An Empty Donut Hole: The Col lapse of a Great North American Fishery (2011), available at http://www.ecologyandsociety.org, accessed 3 December 2012.

5.NOTE ON THE IMPACT OF THE 1995 FISH STOCKS AGREEMENT

ON THE MANAGEMENT OF STRADDLING STOCKS

A major accomplishment in dealing with the problems associated with straddling stocks was the adoption of the Fish Stocks Agreement of 1995. The Fish Stocks Agreement is reprinted in the Documentary Supplement. Read this Agreement and answer the following questions:

1. Note that the Fish Stocks Agreement is designed to implement, not to replace, the provisions of UNCLOS, most importantly Article 63(2) of UNCLOS, which only requires parties to "seek to agree" on measures to conserve straddling stocks. The Fish Stocks Agreement also implements UNCLOS Article 64 on highly migratory fish stocks.

2. What is the objective of the Fish Stocks Agreement? See Article 2.3. Note the management principles in Articles 5 and 6.4. Note how the management of straddling stocks and highly migratory stocks is stated

differently in the compatibility Article 7.5. Articles 8 to 16 are designed to reform and strengthen the role of RFMOs.

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6. How is the problem of fishing by non-parties to RFMOs handled? See Article 8(4). See also Article 17 and 33. How can the Fish Stocks Agreement create obligations for non-party states?

7. Articles 18 and 19 place obligations on flag states in order to strengthen flag state enforcement.

8. Article 20 calls for cooperation in enforcement between flag states, coastal states and regional and subregional organizations.

9. Articles 21 and 22 create a new kind of enforcement by "inspecting states". What is the authority of an "inspecting state"? What is the limit of this authority?

10. Article 23 concerns the role of port states.11. Articles 24 to 26 is designed to strengthen the role of developing countries.12. Articles 27 to 32 deal with settlement of disputes.

PROBLEM 7-13

MANAGING THE DOUGHNUT HOLE AGREEMENT

Under the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, (1994) (Bering Sea Convention), Canada, China, Japan, Korea, Poland, Russia, and the United States have agreed to manage pollock and other fish stocks in the doughnut hole area of the Bering Sea according to a scheme that allocates the Allowable Harvest Level (AHL) among the parties to the Convention. Each year an Annual Conference of the Parties to the Bering Sea Convention establishes an AHL for fish stocks in the doughnut hole as well as Individual National Quotas (INQ) for each of the parties. (See Bering Sea Convention, Article VIII).

A South Korean corporation operates a vessel, the Daemon Ho, that has fished in the doughnut hole on numerous occasions. The South Korean company has recently established a wholly-owned Panamanian subsidiary company and has transferred the Daemon Ho to hat company. In addition, the home port and registration of the Daemon Ho was changed to Panama. The Daemon Ho now flies the flag of Panama, although its captain and several crewmembers are Korean. Fish captured by the Daemon Ho are usually offloaded in Korean ports. Once a year, the Daemon Ho puts into port in Panama for routine inspection and repairs.

The Daemon Ho recently returned to the doughnut hole to fish for Pol lock under a new flag (Panama) and under a new name, the Panamanian Estralla. The parties to the Bering Sea Convention have invited Panama to join the Convention and to negotiate a quota allocation for pol lock and other fish, but Panama has refused, stating that, under the law of the sea, the doughnut hole is part of the High Seas, and that vessels flying its flag have the right to fish the resources of the High Seas without limitation. The parties to the Bering Sea Convention have issued a joint statement demanding that the Panamanian Estralla cease to fish in the doughnut hole. Panama, however, rejected this statement. Recently, the US Coast Guard, after finding the Panamanian Estralla fishing illegally in the doughnut hole, confiscated its catch and forced it to leave the area.

Panama has protested this action as a violation of its rights under international law. Panama argues that as a non-party to the Bering Sea Convention, it is not bound by its provisions and its vessels are free to fish on the High Seas. Panama has also refused to become a party to the Fishing Stocks Agreement in order to be able to fully assert its rights as a party to the UNCLOS, which it has accepted.

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Panama and the United States have recently concluded an agreement to submit the dispute over the rights of its vessels to fish in the Doughnut Hole to the International Court of Justice.

How should the ICJ rule on the following questions:

1. What rights, if any, does the Panamanian Estralla have to fish in the Doughnut Hole under UNCLOS? Consider UNCLOS Articles 116, 1 17, 118, and 119.

2. Even though Panama is not a party to the Fish Stocks Agreement, is this Agreement relevant to resolving the p resent dispute? Consider Part IV of the Fish Stocks Agreement.

3. Did the U S Coast Guard have the right to stop the vessel from fishing in the area, to confiscate its catch, and to force it to leave? Consider Article 21 of the Fish Stocks Agreement and Article XII of the Bering Sea Convention.

4. Is the United States required to consider the Panamanian Estralla a Panamanian flag vessel? Consider UNCLOS Article 91. Consider also Article II of the Compliance Convention, which Panama has accepted as a State Party. Does South Korea have any duties under international law with respect to the reflagging of the Panamanian Estralla? See the Bering Sea Convention, Article XII, para. 4.

5. How can non-parties be accommodated and allowed to fish under the Bering Sea Convention? Is there any mechanism in the Convention for non-party fishing? See Article XII.

F. Highly Migratory Species of Fish.

Although most of the problems associated with the international law of highly migratory species are also true with respect to straddling stocks, and we have already considered one case of a highly migratory species, the Swordfish Case, the importance of one case, the Southern Bluefin Tuna Case, and one particular class of highly migratory species, the eight species of tuna, demand fuller treatment.

Perhaps the most important and prized fish in the world is the regal Southern Blue Fin Tuna, one specimen of which reportedly sold in January 2012, for US$ 736,000 at the Tsukiji fish market in Japan. As a result of relentless fishing pressures on the Blue Fin tuna stock and, indeed, on all tuna stocks, the eight species of tuna are becoming very uncommon and, according to experts, five of the eight are in danger of extinction. See More than half of tuna species at risk of extinction, The Guardian, July 7, 2011; available at http://www.guardian.co.uk/environment/2011/jul/07tuna. Yet state parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) have rejected all attempts to list species of tuna as Appendix I endangered species, which would end their exploitation.

SOUTHERN BLUE FIN TUNA CASES

NEW ZEALAND v. JAPAN

AUSTRALIA v. JAPAN

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

CASES 3 and 4

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Requests for Provisional Measures

ORDER

27 August 1999

[The Southern Blue Fin Tuna Cases arose because of a breakdown in cooperation among the founding members of the 1993 Convention for the Conservation of Southern Blue Fin Tuna (CCSBT), which was concluded to "ensure, through appropriate management, the conservation and optimum utilization of Southern Blue Fin Tuna" (Art. 3). The CCSBT establishes the Commission for the Conservation of Southern Blue Fin Tuna (C-CCSBT) to manage catches by member states by setting, by consensus, the total allowable catch (TAC) for Southern Blue Fin Tuna (Thunnus maccayii) as well as individual national allocations. The parties to the CCSBT disagreed as to the current state of the fishery and the future prospects for recovery of stocks. Sothern Blue Fin Tuna are a highly migratory species at the top of the marine food chain. They are pelagic fish that spawn in the waters south of Indonesia and range over the High Seas and EEZs of many states. These stocks are long-lived and late breeders, and are mainly fished on the High Seas. In 1989, New Zealand, Australia and Japan had agreed on a TAC of 11,750 tonnes. From 1994 onward, Japan insisted on increasing this TAC, but the other two states disagreed. Japan then took unilateral action to establish its own fishing program for Southern Blue Fin Tuna. New Zealand and Australia, on July 15, 1999, requested the establishment of an arbitral tribunal under Annex V II of the UNCLOS to hear the merits of t h e dispute between the parties. Both New Zealand and Australia maintain that Japan, by unilaterally designing and implementing its own experimental fishing program, was in violation of several provisions of the UNCLOS, including Articles 64, 117, 118, and 119. Pending the establishment of the Annex VII Tribunal, New Zealand and Australia sought provisional measures at the ITLOS in order to h alt Japan's unilateral program. In August 1999, the ITLOS unanimously found that the Annex VII Tribunal to be established would have jurisdiction over the dispute. ITLOS went on to order, by 18 votes to 4, that catches of tuna be maintained at 11,750 tonnes, and by 20 votes to 2, ordered that none of the parties engage in an experimental fishing program].

40. Considering that. before prescribing provisional measures under article 290, paragraph 5. of the Convention the Tribunal must satisfy itself that prima facie the arbitral tribunal would have jurisdiction;

41. Considering that Australia and New Zealand have invoked as the basis of jurisdiction of the arbitral tribunal article 288 , paragraph l , of the Convention which re ads as follows:

A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part;

42. Considering that Japan maintains that the disputes are scientific rather than legal;43. Considering that, in the view of the Tribunal, the differences between the parties also concern

points of law; 44. Considering that, in the view of the Tribunal, a dispute is a "disagreement on a point of law or fact, a

conflict of legal views or of interests" (Mavrommatis Palestine Concessions. Judgment No. 2. 1924, P. C.J.J., Series A. No. 2. p. 11), and " [i]t must be shown that the claim of one party is positively opposed by the other" (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p.328);

45. Considering that Australia and New Zealand allege that Japan, by unilaterally designing and undertaking an experimental fishing programme, has failed to comply with obligations under articles

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64 and 116 to 119 of the Convention on the Law of the Sea, with provisions of the Convention for the Conservation of Southern Bluefin Tuna of 1993 (hereinafter " the Convention of 1993") and with rules of customary international law:

46. Considering that Japan maintains that the dispute concerns the interpretation or implementation of the Convention of 1993 and does not concern the interpretation or application of the Convention on the Law of the Sea;

47. Considering that Japan denies that it has failed to comply with any of the provisions of the Convention on the Law of the Sea referred to by Australia and New Zealand;

48. Considering that, under article 64, read together with articles 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species;

49. Considering that the list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunus maccoyii;

50. Considering that the conduct of the parties within the Commission for the Conservation of Southern Bluefin Tuna established in accordance with the Convention of 199 3 , and in their relations with non-parties to that Convention is relevant to an evaluation of the extent to which the parties are in compliance with their obligations under the Convention on the Law of the Sea;

51. Considering that the fact that the Convention of 1993 applies between the parties does not exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and management of southern bluefin tuna;

52. Considering that, in the view of the Tribunal, the provisions of the Convention on the Law of the Sea invoked by Australia and New Zealand appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded;

53. Considering that Japan argues that recourse to the arbitral tribunal is excluded because the Convention of 1993 provides for a dispute settlement procedure;

54. Considering that Australia and New Zealand maintain that they are not precluded from having recourse to the arbitral tribunal since the Convention of 1993 does not provide for a compulsory dispute settlement procedure entailing a binding decision as required under article 282 of the Convention on the Law of the Sea;

55. Considering that, in the view of the Tribunal , the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, section 2, of the Convention on the Law of the Sea;

56. Considering that Japan contends that Australia and New Zealand have not exhausted the procedures for amicable dispute settlement under Part XV, section 1 , of the Convention, in particular article 281 , through negotiations or other agreed peaceful means, before submitting the disputes to a procedure under Part XV, section 2, of the Convention;

57. Considering that negotiations and consultations have taken place between the parties and that the records show that these negotiations were considered by Australia and New Zealand as being under the Convention of 1993 and also under the Convention on the Law of the Sea;

58. Considering that Australia and New Zealand have invoked the provisions of the Convention in diplomatic notes addressed to Japan in respect of those negotiations;

59. Considering that Australia and New Zealand have stated that the negotiations had terminated; 60. Considering that, in the view of the Tribunal, a State Party is not obliged to pursue procedures under

Part XV, section 1 , of the Convention when it concludes that the possibilities of settlement have been exhausted;

61. Considering that, in the view of the Tribunal, the requirements for invoking the procedures under Part XV, section 2. of the Convention have been fulfilled;

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62. Considering that, for the above reasons, the Tribunal finds that the arbitral tribunal would prima facie have jurisdiction over the disputes;

63. Considering that, according to article 290, paragraph 5, of the Convention, provisional measures may be prescribed pending the constitution of the arbitral tribunal if the Tribunal considers that the urgency of the situation so requires;

64. Considering, therefore, that the Tribunal must decide whether provisional measures are required pending the constitution of the arbitral tribunal;

65. Considering that, in accordance with article 290, paragraph 5, of the Convention, the arbitral tribunal. Once constituted, may modify, revoke or affirm any provisional measures prescribed by the Tribunal;

66. Considering that Japan contends that there is no urgency for the prescription of provisional measures in the circumstances of this case;

67. Considering that, in accordance with article 290 of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment;

68. Considering that Australia and New Zealand contend that by unilaterally implementing an experimental fishing programme Japan has violated the rights of Australia and New Zealand under articles 64 and 116 to 119 of the Convention;

69. Considering that Australia and New Zealand contend that further catches of southern bluefin tuna, pending the of the matter by an arbitral tribunal, would cause immediate harm to their rights;

70. Considering that the conservation of the living resources of the sea is an element in the protection preservation of the marine environment;

71. Considering that there is no disagreement between the parties that the stock of southern bluefin tuna is serve depleted and is at its historically lowest levels and that this is a cause for serious biological concern;

72. Considering that Australia and New Zealand contend that, by unilaterally implementing an experimental programme, Japan has failed to comply with its obligations under articles 64 and 118 of the Convention; which the parties to cooperate in the conservation and management of the southern bluefin tuna stock, and that the act of Japan have resulted in a threat to the stock;

73. Considering that Japan contends that the scientific evidence available shows that the implementation experimental fishing programme will cause no further threat to the southern bluefin tuna stock and that experimental fishing programme remains necessary to reach a more reliable assessment of the potential of the stock to recover;

74. Considering that Australia and New Zealand maintain that the scientific evidence available shows that the southern bluefin tuna taken under the experimental fishing programme could endanger the existence of the stock

75. Considering that the Tribunal has been informed by the parties that commercial fishing for southern bluefin is expected to continue throughout the remainder of 1999 and beyond;

76. Considering that the catches of non-parties to the Convention of 1 993 have increased considerably since 1991

77. Considering that, in the view of the Tribunal, the parties should in the circumstances act with prudence caution to ensure that effective conservation measures are taken to prevent serious harm to the stock the bluefin tuna;

78. Considering that the parties should intensify their efforts to cooperate with other participants in the fishery southern bluefin tuna with a view to ensuring conservation and promoting the objective of optimum utilization of the stock;

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79. Considering that there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there is no agreement among the parties as to whether the conservation measures taken have led to the improvement in the stock of southern bluefin tuna;

80. Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to a further deterioration of the southern bluefin tuna stock;

81. Considering that, in the view of the Tribunal, catches taken within the framework of any experimental fish programme should not result in total catches which exceed the levels last set by the parties for each of them, under agreed criteria;

82. Considering that, following the pilot programme which took place in 199 8 , Japan's experimental fishing currently designed consists of three annual programmes in 1999, 2000 and 2001;

83. Considering that the Tribunal has taken note that, by the statement of its Agent before the Tribunal on 20 August 1999, Japan made a " clear commitment that the 1999 experimental fishing programme will end by 31 August ";

84. Considering, however, that Japan has made no commitment regarding any experimental fishing programme 1999

85. Considering that, for above reasons in the view of the Tribunal, provisional measures are appropriate under the circumstances;

86. Considering that, in accordance with article 89, paragraph 5, of the Rules, the Tribunal may prescribe measures different in whole or in part from those requested;

87. Considering the binding force of the measures prescribed and the requirement under article 290, paragraph 6, of the Convention that compliance with such measures be prompt;

88. Considering that, pursuant to article 95, paragraph 1 , of the Rules, each party is required to submit to the Tribunal a report and information on compliance with any provisional measures prescribed;

89. Considering chat it may be necessary for the Tribunal to request further information from the parties on the implementation of provisional measures and that it is appropriate that the President be authorized to request such information in accordance with article 95, paragraph 2, of the Rules;

I. For these reasons,THE TRIBUNAL.

1. Prescribes, pending a decision of the arbitral tribunal. the following measures:

B y 20 votes to 2.

a) Australia, Japan and New Zealand shall each ensure that no action is taken which might aggravate or extend the disputes submitted to the arbitral tribunal;

IN FAVOUR: President MENSAH: Vice-President WOLFRUM; Judges ZHAO. CAMINOS, MAROITA RANGEL. YANKOV, YAMAMOTO. KOLODKIN, PARK. BAMELA ENGO, NELSON, CHANDRA SEKHARA RAO, A KL. ANDERSON, WARIOBA, LAING, TREVES, MARSIT, NDIAYE; Judge ad hoc SHEARER;

AGAINST: Judges VUKAS, EIRIKSSON.

By 18 votes to 4

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(c) Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that their annual catches do not exceed the annual national allocations at the levels last agreed by the parties of 5,265 tonnes. 6,065 tonnes and 420 tonnes. respectively; in calculating the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal account shall be taken of the catch during 1999 as part of an experimental fishing programme:

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges CAMINOS, MASTRANGEL, YANKOV, KOLODKIN, PARK, BAMELA ENGO, NELSONCHANDRASEKHARA RAO, AKL. ANDERSON, LAING,. TREVES, MARS,EIRIKSSON, NDIA YE; Judge ad hoc SHEARER;

AGAINST: Judges ZHAO, YAMAMOTO, YUKA.S, W ARIOBA.

By 20 votes to 2,(d) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except with the agreement of the other parties unless the experimental catch is counted against its annual national allocation as prescribed in subparagraph (c);

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO, CAMINOS, MAROTT, RANGEL, YANKOV, KOLODKIN, PARK, BAMELA ENGO, NELSONCHANDRASEKHARA RAO, AKL, ANDERSON. WARIOBA, LAING, TREVEMARSIT, EIRIKSSON, NDIAYE; Judge ad hoc S HEARER

AGAINST: Judges YAMAMOTO, VUKAS

By 21 votes to 1.

(e) Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna;

IN FAVOUR: President MENSAH; Vice- President WOLFRUM; Judges ZHAO, CAMINOS, MAROTT RANGEL, YANKOV , YAMAMOTO, KOLODKlN, PARK BAMELA ENGO, NELSON CHANDRASEKHARA RAO, AKL, ANDERSON, WARIOBA, LAING, TREVES MARSIT, EIRKSSON, NDIAYE; Judge ad hoc SHEARER;

AGAINST: Judge VUKAS.

By 20 votes to 2

(f) Australia, Japan and New Zealand should make further efforts to reach agreement with other States and fishing entities en gaged in fishing for southern bluefin tuna, with a view to ensuring conservation and promoting the objective of optimum utilization of the stock;

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IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO, CAMINOS, MAROTTA RANGEL, YANKOV, YAMAMOTO. KOLODKIN, PARK, BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL, ANDERSON, LAING, TREVES, MARSIT, EIRIKSSON, NDIAYE; Judge ad hoc SHEARER;

AGAINST: Judges VUK.AS, WARIOBA

SOUTHERN BLUE FIN TUNA CASES

NEW ZEALAND v. JAPAN

AUSTRALIA v. JAPAN

ARBITRAL PANEL ESTABLISHED UNDER ANNEX VII OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

AWARD ON JURISDICTION AND ADMISSIBILITY

DECISION OF 4 AUGUST 2OOO

UNITED NATIONS REPORTS OF INTERNATIONAL ARBITRATION AWARDS

VOL. XXIII, pp. 1-57

Background to the Current Proceedings

21. Southern Bluefin Tuna (Thunnus maccoyi, hereafter sometimes designated SBT") is a

migratory species of pelagic fish that is included in the list of highly migratory species set out in Annex I

of the United Nations Convention on the Law of the Sea. Southern Bluefin Tuna range widely through

the oceans of the Southern Hemisphere, principally the high seas, but they also traverse the exclusive

economic zones and territorial waters of some States, notably Australia, New Zealand and South Africa.

They spawn in the waters south of Indonesia. The main market for the sale of Southern Blue fin Tuna is

in Japan, where the fish is prized as a delicacy for sashimi.

22. It is common ground between the Parties that commercial harvest of Southern Bluefin Tuna

began in the' early 1950s and that, in 1961, the global catch peaked a t 81,000 metric tons ('mt"). By the

early 1980s, the SBT stock had been severely overfished; it was estimated that the parental stock had

declined to 23-30% of its 1960 level. In 1982, Australia, New Zealand and Japan began informally to

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manage the catching of SBT. Japan joined with Australia and New Zealand in 1985 to introduce a global

total allowable catch (hereafter, ''TAC") for SBT, initially set at 38,650 mt. In 1989, a TAC of 11,750 tons

was agreed, with national allocations of 6,065 tons to Japan, 5,265 tons to Australia and 420 tons to

New Zealand; Japan, as the largest harvester of SBT, sustained the greatest cut. But the SBT stock

continued to decline. In 1997, it was estimated to be in the order 'of 7- 15% of its 1960 level.

Recruitment of SBT stock - the entry of new fish into the fishery - was estimated in 1998 to be about one

third of the 1960 level. The institution of total allowable catch restrictions by Japan, Australia and New

Zealand to some extent has been offset by the entry into the SBT fishery of fishermen from the Republic

of Korea, Taiwan and Indonesia, and some flag-of-convenience States. Whether, in response to TAC

restrictions, the stock has in fact begun to recover is at the core of the dispute between Australia and

New Zealand, on the one hand, and Japan, on the other. They differ over the current state and recovery

prospects of SBT stock and the means by which scientific uncertainty in respect of those matters can

best be reduced.

49. From the record placed before the Tribunal by both Parties, it is clear that the most acute

elements of the dispute between the Parties turn on their inability to agree on a revised total allowable

catch and the related conduct by Japan of unilateral experimental fishing in 1998 and 1999, as well as

Japan's announced plans for such fishing thereafter. Those elements of the dispute were clearly within

the mandate of the Commission for the Conservation of Southern Bluefin Tuna. It was there that the

Parties failed to agree on a TAC. It was there that Japan announced in 1998 that it would launch a

unilateral experimental fishing program; it was there that that announcement was protested by

Australia and New Zealand; and the higher level protests and the diplomatic exchanges that followed

refer to the Convention for the Conservation of Southern Bluefin Tuna and to the proceedings in the

Commission. The Applicants requested urgent consultations with Japan pursuant to Article 16(1) of the

Convention, which provides that, "if any dispute arises between two or more of the Parties concerning

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the interpretation or implementation of this Convention, those Parties shall consult among themselves

with a view to having the dispute resolved ... " Those consultations took place in 1998, and they were

pursued in 1999 in the Commission in an effort to reach agreement on a joint EFP. It was in the

Commission in 1999 that a proposal by Japan to limit its catch to 1800 mt. under the 1999 EFP was

made, and it was in the Commission that Australia indicated that it was prepared to accept a limit of

1500 mt. It was in the Commission that Japan stated, on May 26 and 28, 1999 that, unless Australia and

New Zealand accepted its proposals for a joint EFP, it would launch a unilateral program on June 1.

Proposals for mediation and arbitration made by Japan were made in pursuance of provisions of Article

16 of the CCSBT. In short, it is plain that all the main elements of the dispute between the Parties had

been addressed within the Commission for the Conservation of Southern Bluefin Tuna and that the

contentions of the Parties in respect of that dispute related to the implementation of their obligations

under the 1993 Convention. They related particularly to Article 8 (3) of the Convention, which provides

that, "For the conservation, management and optimum utilization of southern bluefin tuna: (a) the

Commission shall decide upon a total allowable catch and its allocation among the Parties ... " and to the

powers of a Party in a circumstance where the Commission found itself unable so to decide.

50. There is in fact no disagreement between the Parties over whether the dispute falls within

the provisions of the 1993 Convention. The issue rather is, does it also fall within the provisions of

UNCLOS? The Applicants maintain that Japan has failed to conserve and to cooperate in the

conservation of the SBT stock, particularly by its unilateral experimental fishing for SBT in 1998 and

1999. They find a certain tension between cooperation and unilateralism. They contend that Japan's

unilateral EFP has placed it in breach of its obligations under Articles 64, 116, 117, 118 and 119 of

UNCLOS, for the specific reasons indicated earlier in this Award (in paragraphs 33 and 41). Those

provisions, they maintain, lay down applicable norms by which the lawfulness of Japan's conduct can be

evaluated. They point out that, once the dispute had ripened, their diplomatic notes and other

162

demarches to Japan made repeated reference to Japan's obligations not only under the 1993

Convention but also under UNCLOS and customary international law.

51. Japan for its part maintains that such references were belated and were made for the

purpose of permitting a request to ITLOS for provisional measures. It contends that the invoked articles

of UNCLOS are general and do not govern the particular dispute between the Parties. More than that,

Japan argues that UNCLOS is a framework or umbrella convention that looks to implementing

conventions to give it effect; that Article 64 provides for cooperation "through appropriate international

organizations" of which the Commission is an exemplar; that any relevant principles and provisions of

UNCLOS have been implemented by the establishment of the Commission and the Parties' participation

in its work; and that the lex specialis of the 1993 Convention and its institutional expression have

subsumed, discharged and eclipsed any provisions of UNCLOS that bear on the conservation and

optimum utilization of Southern Bluefin Tuna. Thus Japan argues that the dispute falls solely within the

provisions of the 1993 Convention and in no measure also within the reach of UNCLOS.

52. The Tribunal does not accept this central contention of Japan. It recognizes that there is

support in international law and in the legal systems of States for the application of a lex specialis that

governs general provisions of an antecedent treaty or statute. But the Tribunal recognizes as well that it

is a commonplace of international law and State practice for more than one treaty to bear upon a

particular dispute. There is no reason why a given act of a State may not violate its obligations under

more than one treaty. There is frequently a parallelism of treaties, both in their substantive content and

in their provisions for settlement of disputes arising thereunder. The current range of international

legal obligations benefits from a process of accretion and cumulation; in the practice of States, the

conclusion of an implementing convention does not necessarily vacate the obligations imposed by the

framework convention upon the parties to the implementing convention. The broad provisions for the

promotion of universal respect for and observance of human rights, and the international obligation to

163

co-operate for the achievement of those purposes, found in Articles 1, 55 and 56 of the Charter of the

United Nations, have not been discharged for States Parties by their ratification of the Human

Rights Covenants and other human rights treaties. Moreover, if the 1993 Convention were to

be regarded as having fulfilled and eclipsed the obligations of UNCLOS that bear on the

conservation of SBT, would those obligations revive for a Party to the CCSBT that exercises its

right under Article 20 to withdraw from the Convention on twelve months notice? Can it really

be the case that the obligations of UNCLOS in respect of a migratory species of fish do not run

between the Parties to the 1993 Convention but do run to third States that are Parties to

UNCLOS but not to the 1993 Convention? Nor is it clear that the particular provisions of the

1993 Convention exhaust the extent of the relevant obligations of UNCLOS. In some respects,

UNCLOS may be viewed as extending beyond the reach of the CCSBT. UNCLOS imposes

obligations on each State to take action in relation to its own nationals: "All States have the

duty to take ... such measures for their respective nationals as may be necessary for the

conservation of the living resources of the high seas" (Article 117). It debars discrimination "in

form or fact against the fishermen of any State" (Article 119). These provisions are not found in

the CCSBT; they are operative even where no TAC has been agreed in the CCSBT and where co-

operation in the Commission has broken down. Article 5 (1) of the CCSBT provides that, "Each

Party shall take all action necessary to ensure the enforcement of this Convention and

compliance with measures which become binding . . ."But UNCLOS obligations may be viewed

not only as going beyond this general obligation in the foregoing respects but as in force even

where "measures'' being considered under the 1993 Convention have not become binding

thereunder. Moreover, a dispute concerning the interpretation and implementation of the

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CCSBT will not be completely alien to the interpretation and application of UNCLOS for the very

reason that the CCSBT was designed to implement broad principles set out in UNCLOS. For all

these reasons, the Tribunal concludes that the dispute between Australia and New Zealand, on

the one hand, and Japan on the other, over Japan's role in the management of SBT stocks and

particularly its unilateral experimental fishing program, while centered in the 1993 Convention,

also arises under the United Nations Convention on the Law of the Sea. In its view, this

conclusion is consistent with the terms of UNCLOS Article 311(2) and (5), and with the law of

treaties, in particular Article 30(3) of the Vienna Convention on the Law of Treaties.40

53. This holding, however, while critical to the case of the Applicants, is not dispositive

of this case. It is necessary to examine a number of articles of Part XV of NCLOS. Article 286

introduces section 2 of Part XV, a section entitled, "Compulsory Procedures Entailing Binding

Decisions". Article 286 provides that, "Subject to section 3, any dispute concerning the

interpretation or application of this Convention shall, where no settlement has been reached by

recourse to section 1, be submitted at the request of any party to the dispute to the court or

tribunal having jurisdiction under this section". Article 286 must be read in context, and that

qualifying context includes Article 281(1) as well as Articles 279 and 280. Under Article 281(1) ,

if the States which are parties to a dispute concerning the interpretation or application of

UNCLOS (and the Tribunal has just held that this is such a dispute) have agreed to seek

settlement of the dispute "by a peaceful means of their own choice", the procedures provided

for in · Part XV of UNCLOS apply only (a) where no settlement has been reached by recourse to

40 Article 30(3) of the Vienna Convention on the Law of Treaties provides: When all the parties to an earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

165

such means and (b) the agreement between the parties "does not exclude any further

procedure".

54. The Tribunal accepts Article 16 of the 1993 Convention as an agreement by the

Parties to seek settlement of the instant dispute by peaceful means of their own choice. It so

concludes even though it has held that this dispute, while centered in the 1993 convention, also

implicates obligations under UNCLOS. It does so because the Parties to this dispute - the real

terms of which have been defined above - are the same Parties grappling not with two separate

disputes but with what in fact is a single dispute arising under both Conventions. To find that, in

this case, there is a dispute actually arising under UNCLOS which is distinct from the dispute

that arose under the CCSBT would b e artificial.

55. Article 16 is not "a" peaceful means; it provides a list of various named procedures

of peaceful settlement, adding "or other peaceful means of their own choice." No particular

procedure in this list has thus far been chosen by the Parties for settlement of the instant

dispute. Nevertheless - bearing in mind the reasoning of the preceding paragraph - the Tribunal

is of the view that Article 16 falls within the terms and intent of Article 281(1), as well as Article

280. That being so, the Tribunal is satisfied about fulfillment of condition (a) of Article 281(1).

The Parties have had recourse to means set out in Article 16 of the CCSBT. Negotiations have

been prolonged, intense and serious. since in the course of those negotiations, the Applicants

invoked UNCLOS and relied upon provisions of it, while Japan denied the relevance of UNCLOS

and its provisions, those negotiations may also be regarded as fulfilling another condition of

UNCLOS, that of Article 283, which requires that, when a dispute arises between States Parties

concerning UNCLOS' interpretation or application, the parties to the dispute shall proceed

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expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful

means. Manifestly, no settlement has been reached by recourse to such negotiations, at any

rate, as yet. It is true that every means listed in Article 16 has not been tried; indeed, the

Applicants have not accepted proposals of Japan for mediation and for arbitration under the

CCSBT, essentially, it seems, because Japan was unwilling to suspend pursuance of its unilateral

EFP during the pendency of such recourse. It is also true that Article 16(2) provides that failure

to reach agreement on reference of a dispute to the International Court of Justice or to

arbitration "shall not absolve parties to the dispute from the responsibility of continuing to seek

to resolve it by any of the various peaceful means referred to in paragraph 1 above". But in the

view of the Tribunal, this provision does not require the Parties to negotiate indefinitely while

denying a Party the option of concluding, for purposes of both Articles 281(1) and 283, that no

settlement has been reached. To read Article 16 otherwise would not be reasonable.

56. The Tribunal now turns to the second requirement of Article 281(1): that the

agreement between the parties "does not exclude any further procedure". This is a

requirement, it should be recalled, for applicability of "the procedures provided for in this Part,"

that is to say, the "compulsory procedures entailing binding decisions" dealt with in section 2 of

UNCLOS Part XV. The terms of Article 16 of the 1993 Convention do not expressly and in so

many words exclude the applicability of any procedure, including the procedures of section 2 of

Part XV of UNCLOS.

57. Nevertheless, in the view of the Tribunal, the absence of an express exclusion of any

procedure in Article 16 is not decisive. Article 16(1) requires the parties to "consult among

themselves with a view to having the dispute resolved by negotiation, inquiry, mediation,

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conciliation, arbitration, judicial settlement or other peaceful means of their own choice."

Article 16(2), in its first clause, directs the referral of a dispute not resolved by any of the above-

listed means of the parties' "own choice" for settlement "to the International Court of Justice or

to arbitration" but ''with the consent in each case of all parties to the dispute". The ordinary

meaning of these terms of Article 16 makes it clear that the dispute is not referable to

adjudication by the International Court of Justice (or, for that matter, ITLOS), or to arbitration,

"at the request of any party to the dispute" (in the words of UNCLOS Article 286 ) . The consent

in each case of all parties to the dispute is required. Moreover, the second clause of Article

16(2) provides that "failure to reach agreement on reference to the International Court of

Justice or to arbitration shall not absolve the parties to the dispute from the responsibility of

continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1

above". The effect of this express obligation to continue to seek resolution of the dispute by the

listed means of Article 16(1) is not only to stress the consensual nature of any reference of a

dispute to either judicial settlement or arbitration. That express obligation equally imports, in

the Tribunal's view, that the intent of Article 16 is to remove proceedings under that Article

from the reach of the compulsory procedures of section 2 of Part XV of UNCLOS, that is, to

exclude the application to a specific dispute of any procedure of dispute resolution that is not

accepted by all parties to the dispute. Article 16(3) reinforces that intent by specifying that, in

cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as

provided for in an annex to the 1993 Convention, which is to say that arbitration contemplated

by Article 16 is not compulsory arbitration under section 2 of Part XV of UNCLOS but rather

autonomous and consensual arbitration provided for in that CCSBT annex.

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59. For all these reasons, the Tribunal concludes that Article 16 of the 1993 Convention

"exclude[s] any further procedure" within the contemplation of Article 281(1) of UNCLOS.

65. It follows from the foregoing analysis that this Tribunal lacks jurisdiction to entertain

the merits of the dispute brought by Australia and New Zealand against Japan. Having reached

this conclusion, the Tribunal does not find it necessary to pass upon questions of the

admissibility of the dispute, although it may be observed that its analysis of provisions of

UNCLOS that bring the dispute within the substantive reach of UNCLOS suggests that the

dispute is not one that is confined to matters of scientific judgment only. It may be added that

this Tribunal does not find the proceedings brought before ITLOS and before this Tribunal to be

an abuse of process; on the contrary, as explained below, the proceedings have been

constructive.

66. In view of this Tribunal's conclusion that it lacks jurisdiction to deal with the merits

of the dispute, and in view of the terms of Article 290(5) of UNCLOS providing that, "Once

constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm

those provisional measures ... ", the Order of the International Tribunal for the Law of the Sea

of August 27, 1999, prescribing provisional measures, shall cease to have effect as of the date of

the signing of this Award.

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NOTES AND QUESTIONS

1. l. Do you agree with the narrow approach taken by the arbitral panel (4 votes to1) to jurisdiction and dispute settlement under Part XV of U NCLOS? Do you agree with the arbitral tribunal's interpretation of U N CLOS Article 281? Would not the tribunal's broad reading of Article 281 catch all dispute resolution procedures in parallel international instruments rather than being limited to specific agreements to seek a settlement of an UNCLOS dispute outside the framework of Part XV? In relation to the second requirement of Article 281, the tribunal ruled that Article 16 of the CCSBT "exclude [d] any further procedure" and therefore rendered Part XV of UNCLOS inoperable. Do you agree? Consider the full text of Article 16:

1. I f any dispute arises between two or more o f the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2. Any dispute of this character not so resolved shall, with the consent in each case o f all parties t o the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement shall not a solve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided i n the Annex to this Convention. The Annex forms and integral part of this Convention.

2. The Southern Blue Fin Tuna Case was the very first arbitration under Annex VII of the UNCLOS. What are the implications of the case for the dispute settlement provisions of U NCLOS? Are not the dispute settlement provisions of U NCLOS, which were intended to be compulsory, in fact highly vulnerable to displacement?

3. The Southern Blue Fin Tuna Award casts doubt on the correctness of the adjudications of the ITLOS and the acumen and expertise of the ITLOS judges. Should the arbitration panel have given more deference to the decision of the ITLOS? Did the ITLOS make a mistake in formulating the findings in its Order in conclusory fashion without any accompanying legal analysis?

4. Tim Stephens of the University of Sydney, in his book, International Courts and Environmental Protection (Cambridge: Cambridge University Press, 2009), p. 228, states that "The practical effect of the Southern Bluefin Tuna A ward is to al low unsustainable high seas fishing to continue while precluding direct enforcement of the duty of all states to conserve and manage living [marine] resources." Do you agree?

5. Is the result in these cases indicative of the fragmentation in the governance of international environmental disputes? International environmental disputes are subject to a jurisdictional patchwork that is without any systematic organization. How can this problem be overcome? Should there be a supreme international environmental appeals court of some kind?

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SECTION IX WHALES AND MARINE MAMMALS

UNCLOS Article 65 requires states to "cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study. '' The conservation of many marine mammals, such as seals, sea lions and polar bears is left to national laws; some nations, such as the United States41 and New Zealand42, have passed Marine Mammal Protection Acts, granting these animals total protection within their nation al territories. Whales are covered by an important international instrument, the International Convention for the Regulation of Whaling (1945), which is reprinted in the Documentary Supplement. Eighty-nine state parties have accepted the Whaling Convention, whose principal body is the International Whaling Commission (IWC), which meets at least once each year. The IWC's work includes the regulation of whaling and the promotion of conservation initiatives. The only quotas presently set by the Commission concern Aboriginal Subsistence Whaling. The IWC is also responsible for setting quotas for commercial whaling, but since 1985, those quotas have been set at zero. On the Commission, each member of the Convention has one vote. Decisions of the Commission are taken by majority vote, except that a three-fourths majority of those members voting is required for action relating to Article V of the Convention: conservation and utilization of whale resources, protected species, open and closed seasons, open and closed waters, sanctuary areas, size limits, time, method and intensity of whaling, types and specification of equipment and gear, methods of measurement, and catch returns and other statistical records. Even in the case of the adoption of a regulation concerning one of these matters, any party can utilize an objection procedure in Article V para. 3 so that it will not be bound by a decision of the Commission. Article VIII permits a party to the Convention to grant to any of its nationals a special permit to kill, take and treat whales for purposes of scientific research, "subject to ... conditions as the Contracting Government t h inks fit."

In 1982 the IWC adopted a commercial whaling moratorium effective from the 1985/86 season that is in effect today. However, Norway and Iceland take whales commercially, having invoked the objection procedure against the moratorium. The IWC has established two whale sanctuaries: the Indian Ocean Sanctuary and the waters of the Southern Ocean around Antarctica. Japan for many years has authorized the taking of whales under the Research Perm it Article VIII of the Convention. South Korea has announced that it will resume whaling under this article as well. In 2005, Japan announced its intention to take a maximum of 850 minke whales and 10 fin whales per year under its JARPA II whale research program.

41 Marine Mammal Protection Act, 16 USC sec. 1461 et seq.

42 Marine Mammals Protection Act, NZ Public Law No. 80 (1978).

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NOTE ON THE INTERNATIONAL WHALING CONVENTION (1946)

The International Whaling Convention (IWC) (1946) is reprinted in the Documentary Supplement. 89 nations are parties to this Convention. Read the provisions of this Convention and consider the following questions:

1. What is the coverage of the IWC? Does it concern all cetaceans (some 80 species) or just 13 species of "great" whales? Does it concern especially endangered species?

2. What is the objective of the IWC? Is the objective preservation of cetaceans or to ensure their future economic exploitation?

3. How are decisions taken by the International Whaling Commission? See Article III. 4. Can state-parties be bound by decisions of the Commission against their will? See Article V.5. Article VIII concerns "research" whaling. Is research whaling defined? What is research whaling?6. How are disputes relating to whaling settled under the Convention?7. Two states engage in commercial whaling within their EEZs: Norway and Iceland. Only Japan carries out

extensive "research" whaling under Article VIII. Why do you think Japan characterizes its whaling as "research" whaling? Whale products are commonly sold commercially in Japan.

8. The United States and many other nations have singled out Japan for criticism over its whaling activities. Under the US Marine Mammal Protection Act43, the United States prohibits not only the taking of whales within its EEZ, but also prohibits the importation of marine mammals and marine mammal products into the United States. Under the US Endangered Species Act, the United States prohibits imports of products derived from whales that are on the endangered species list.44 The United States has also announced that it will not enter into any Governing International Fishing Agreement (GIFA) with Japan. Since a GIFA is a prerequisite for fishing in the US EEZ, this action effectively bars Japanese vessels from fishing in US waters. However, Japan has already been barred from fishing in US waters by the action of US fisheries councils and has not sought to fish in US waters since 1988.45 Under the Pelly Amendment of 1971, 22 USC sec. 1978, if the Secretary of Commerce certifies to the President that nationals of a foreign state are diminishing the effectiveness of an international fishery conservation program, the President has discretion to ban the importation of fishery products from that state. The Pelly Amendment was invoked against Japan by the Department of Commerce in 2000, but President Clinton declined to invoke trade sanctions.46

9. Japan's whaling activities in the southern ocean have generated particular controversy as is evident in the following case:

43 16 USC sec. 1361 et seq.

44 16 USC sec. 1538(a)(1)(A).

45 See, Note, US Sanctions against Japan for Whaling, 95 Am. J. Int’l L. 149 (2001).

46 Ibid.

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INSTITUTE OF CETACEAN RESEARCH v. SEA SHEPHERD CONSERVATION SOCIETY

United States Court of Appeals for the Ninth Circuit, 2013___ F.3d ____

KOZINSK, Chief Judge:

You don't need a peg leg o r an eye patch. When you ram ships; hurl glass containers of

acid; drag meta l-reinforced ropes in the water to damage propellers and rudders; launch

smoke bombs and flares with hooks; and point high –powered lasers at other ships, you are,

without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Plaintiffs - Appellants (collectively, "Cetacean") are Japanese researchers who hunt

whales in the Southern Ocean. The United States, Japan and many other nations are signatories

to the International Convention for the Regulation of Whaling art. VIII, Dec, 2, 1946, 62 Stat.

1716, 161 U.N.T.S. 74, which authorizes whale hunting when conducted in compliance with a

research perm it issued by a signatory. Cetacean has such a permit from Japan. Nonetheless, it

has been hounded on the high seas for years by a group calling itself Sea Shepherd

Conservation Society and its eccentric founder, Paul Watson (collectively "Sea Shepherd"). Sea

Shepherd's tactics include all of those listed in the previous paragraph.

Cetacean sued under the Alien Tort Statute, 2 8 U. S.C. § 1350, for injunctive and

declaratory relief. The statute provides a cause of action for "a tort . . . committed in violation

of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Cetacean argues that

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Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct

on the high seas. The district court denied Cetacean's request for a preliminary injunction and

dismissed its piracy claims. We have jurisdiction over the order denying the injunction pursuant

to 28 U. S.C. § 1292 (a). We also have jurisdiction to review the dismissal of the piracy claims

because the district court's reasoning for dismissing them is "inextricably intertwined with" its

reasons for denying the preliminary injunction. Smith v. Arthur Andersen LLP, 421 F.3d 989, 998

(9th Cir. 2005) (internal quotation marks omitted).

I. DISMISSAL OF THE PIRACY CLAIMS

We review the district court's dismissal of Cetacean's piracy claims de novo.

"[The definition of piracy under the law of nations . . . [is] spelled out in the UNCLOS, as well as

the High Seas Convention," which provide almost identical definitions. United States v. Dire,

680 F. 3d 446, 469 (4th Cir. 2012) ; see United Nations Convention on the Law of the Sea

("UNCLOS") , art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397; Convention on the High Seas, art. 15,

Apr. 29, 1958 , 13 U S.T. 2312 , 450 U. N.T.S. 82. The UNCLOS defines "piracy" as ''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 . . . and directed . . . on the high seas, against another ship . . . or

against persons or property on board such ship." UNCLOS art. 101 emphasis added); see also

Convention on the High Seas art. 15.

The district court's analysis turns on an erroneous interpretation o f "private ends" and

"violence." The district court construed "private ends" as limited to those pursued for "financial

enrichment." But the common understanding of "private" is far broader. The term is normally

used as an antonym to "public" (e. g . , private attorney general) and often refers to matters of a

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personal nature that are not necessarily connected to finance (e . g . , private property, private

entrance, private understanding and invasion of privacy). See Webster' s New Int' l Dictionary

1969 (2 d . ed. 1939) (defining "private" to mean "[b]elonging to , or concerning, an individual

person , company, or interest").

We give words their ordinary meaning unless the context requires otherwise. The

context here is provided by the rich history of piracy law, which defines acts taken for private

ends as those not taken on behalf of a state. See Douglas Guilfoyle, Piracy Off Somalia : UN

Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts , 57 Int'l & Comp .

L.Q. 690, 693 (2008) (discussing the High Seas Convention); Michael Bahar, Attaining Optimal

Deterrence at Sea: A Legal and Strategic Theory for Naval Anti- Piracy Operations, 40 V and J.

Transnat'l L. 1, ,32 (2007); see also Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844)

("The law looks to [piracy] as an act of hostility . . . being committed by a vessel not

commissioned and engaged in lawful warfare.") . Belgian courts, perhaps the only ones to have

previously considered the issue, have held that environmental activism qualifies as a private

end. See Cour de Cassation [Cass.] [Court of Cassation] Castle John v. N V Mabeco, Dec. 19 ,

1986 , 77 I. L .R . 537 (Belg.). This interpretation is "entitled to considerable weigh t." Abbott v.

Abbott, 130 S. Ct. 1983, 1993 (2010) ( internal quotation marks omitted) . We conclude that

"private ends" include those pursued on personal, moral or philosophical grounds, such as Sea

Shepherd's professed environmental goals. That the perpetrators believe themselves to be

serving the public good does not render their ends public. The district court's interpretation of

"violence" was equally off-base. Citing no precedent, it held that Sea Shepherd's conduct is not

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violent because it targets ships and equipment rather than people. This runs a foul of the

UNCLOS itself, which prohibits "violence . . . against another ship" and "violence . . . against

persons or property. "UNCLOS art. 101. Reading "violence" as extending to malicious acts

against inanimate objects also comports with the commonsense understanding of the term, see

Webster's New Int’ l Dictionary 2846, as when a man violently pounds a table with his fist.

Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as

violent activities, even if they could somehow be directed only at inanimate objects.

Regardless, Sea Shepherd's acts fit even the district court's constricted definition. The

projectiles directly endanger Cetacean's crew, as the district court itself recognized. And

damaging Cetacean's ships could cause them to sink or become stranded in glacier- filled,

Antarctic waters, jeopardizing the safety of the crew.

The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of

violent acts for private ends, the very embodiment of piracy. The district court erred in

dismissing Cetacean's piracy claims.

II. PRELIMINARY INJUNCTION

"A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

[3] that the balance of equities tips in his favor, and [4] that an injunction is in the public

interest." Winter v. Natural Res. D ef. Council Inc ., 555 U.S. 7, 20 (2 008). We review the district

court's denial of the preliminary injunction for abuse of discretion. Harris v. Bd. of Supervisors,

L.A. Cnty., 366 F. 3d 754, 760 (9th Cir. 2004). "A district court would necessarily abuse its

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discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous

assessment o f the evidence."

A. Likelihood of Success

Cetacean sought its injunction pursuant to three international agreements: the

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation ("S

UA Convention"), art. 3, Mar. 10,1988, S. Treaty Doc. No. 101 - 1 , 1678 U.N.T.S. 222, the

UNCLOS and the Convention on the International Regulations for Preventing Collisions at Sea

("COLREGS"), Oct. 20, 1972, 28 U.S.T. 3459, 1050 U.N.T.S. 18.

1. The SUA Convention

The SUA Convention prohibits acts that endanger, or attempt to endanger, the safe

navigation of a ship. SUA Convention art. 3. Cetacean presented uncontradicted evidence that

Sea Shepherd's tactics could seriously impair its ability to navigate. The district court

nonetheless concluded that, since Sea Shepherd has not yet disabled any of Cetacean's ships,

it's unlikely it would succeed in the future. This was clear error. The district court overlooked

the actual language of the Convention, which prohibits 'endanger[ing]" safe navigation. Id. This

requires only that Sea Shepherd create dangerous conditions, regardless of whether the

harmful consequences ever come about. As to whether Sea Shepherd's tactics actually are

dangerous, the record disc loses that it has rammed and sunk several other whaling vessels in

the past.

The district court also erred by failing to recognize that Sea Shepherd, at the very least,

attempted to endanger the navigation of Cetacean's ships. An attempt is sufficient to invoke the

SUA Convention, even if unsuccessful. Sea Shepherd's repeated claims that its efforts are

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merely "symbolic" and "employed so as to ensure maximum safety" are disingenuous. How else

can it explain that it has switched to metal-reinforced prop- fouling ropes? Reinforced ropes

carry the same symbolic meaning as normal ropes, but they are far more destructive. Nor does

symbolism require Sea Shepherd to bring its ships dangerously close to Cetacean's. The district

court's conclusion that Cetacean wasn't likely to succeed on its SUA Convention claims rested

on an implausible determination of the facts and an erroneous application of law; it was an

abuse of discretion.

2. The UNCLOS

F or the reasons explained above, Part I, supra, the district court erred in its assessment

of Cetacean's UNC LO S piracy claims, and consequently abused its discretion in assessing the

likelihood of success on these claims.

3. The COLREGS

The district court did find that Cetacean is likely to succeed on the merits of its claims

under the COLREGS. The COLREGS state obligatory and universal norms for navigating ships so

as to avoid collision. Crowley Marine Services, Inc. v. Maritrans, Inc., 530 F. 3d 1169, 1172-73

( 9th Cir. 2008). Sea Shepherd deliberately navigates its ships dangerously close to Cetacean's

ships. The district court's finding that this is likely a violation of the COLREGS is adequately

supported by the record.

B. LIKELIHOOD OF IRREPARABLE HARM

The district court determined that injury is possible, but not likely," even though it found

that the projectiles Sea Shepherd launches at Cetacean's ships "are an obvious hazard to

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anyone who [sic] they might hit" and that Sea Shepherd navigates its ships ''in such a way that a

collision is highly likely. "Sea Shepherd itself adorns the hulls of its ships with the names and

national flags of the numerous whaling vessels it has rammed and sunk. See Appendix. The

district court's observation that Cetacean hasn't yet suffered these injuries is beside the point.

Cetacean's uncontradicted evidence is that Sea Shepherd's tactics could immobilize Cetacean's

ships in treacherous Antarctic waters, and this is confirmed by common sense: A dangerous act,

if committed often enough, will inevitably lead to harm, which could easily be irreparable.

C. BALANC E OF EQUITIES

The district court correctly found that the balance of equities favors Cetacean. As it

noted, "[a]bsent an injunction, the whalers will continue to be the victims of Sea Shepherd's

harassment," but "Sea Shepherd . . . points to no hardship that it will suffer if the court imposes

an injunction ."

D. PUBLIC INTEREST

"The public interest inquiry primarily addresses impact on non-parties rather than

parties. "Bernhardt v. L.A. Cnty., 339 F. 3d 920, 931(9th Cir. 2003) ( internal quotation marks

omitted). This is particularly the case where "the impact of an injunction reaches beyond the

parties, carrying with it a potential for public consequences." Stormans, Inc. v. Selecky, 586 F.3d

1109, 1139 (9th Cir. 2009). The primary public interests at issue here are the health of the

marine ecosystem, Winter, 555 U.S. at 25-2 6; see also Earth Island Inst. v. U.S. Forest Serv., 442

F.3d 1147, 1177 (9th Cir. 2006 ) , and the safety of international waterways.

Where a valid law speaks to the proper level o f deference to a particular public

interest, it controls. Our laws defining the public interest in regards to whaling are the Whaling

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Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant

to scientific permits issued under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c.

Cetacean's activities are covered by such a permit and thus are consistent with congressional

policy as to the marine ecosystem.

Our laws also reflect a strong public interest in safe navigation on the high seas. As

already discussed, Sea Shepherd's activities clearly violate the UNCLOS, the SUA Convention

and the COLREGS ; as such , they are at loggerheads with the public interest of the United

States and all other seafaring nations in safe navigation of the high seas.

The district court also considered the interest in keeping U.S. courts out of the

international political controversy surrounding whaling. But enjoining piracy sends no message

about whaling; it sends the message that we will not tolerate piracy. This is hardly a

controversial view, as evidenced by a joint statement from the United States, Australia, the

Netherlands and New Zealand condemning dangerous activities in the Southern Ocean. Joint

Statement on Whaling and Safety at Sea from the Governments of Australia, the Netherlands,

New Zealand, and the United States: Call for Responsible Behavior in the Southern Ocean

Whale Sanctuary (Dec. 13, 2011), available at

http://www.state.gov/r/pa/prs/ps/2 011/1 2/ 178704. htm. Refusing the injunction sends the

far more troublesome message that we condone violent vigilantism by U.S. nationals in

international waters.

The district court also rejected Cetacean's claims on international comity grounds. While

there is a public interest in maintaining harmonious international relations, it's not a factor

here. An Australian court has entered default judgment against Cetacean, purporting to enjoin

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it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The district

court's deference to Australia's judgment in that case was an abuse o f discretion. To begin, the

district court misunderstood the Australian judgment, which addressed the legality of

Cetacean's activities, not Sea Shepherd's. Whatever the status of Cetacean's whaling under

Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea

Shepherd, to police Australia's court orders.

Additionally, comity applies only if the foreign court has competent jurisdiction. But the

United States doesn't recognize Australia's claims of sovereignty over Antarctic waters. See

Note from U.S. Deputy Representative to the United Nations, to Secretary-General of the

United Nations (Dec. 3, 2004); Note from Embassy of the United States, to Australian

Department of Foreign Affairs and Trade (Mar. 31, 1995). By according comity to Australia's

judgment, we would implicitly recognize Australia's jurisdiction, in contravention of the stated

position of our government. The conduct of foreign affairs is within the exclusive province of

the Executive, and we must defer to its views, see Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.)

415, 420 (1839); cf. Mingtai Fire Ins. Co. v. United Parcel Serv., 177 F. 3d 1142 1147(9th Cir.

1999).

E. UNCLEAN HANDS

An injunction is an equitable remedy. Winter, 555 U.S. at 32. While the Winter factors

"are pertinent in assessing the propriety of any injunctive relief," id., traditional equitable

considerations such as laches, duress and unclean hands may militate against issuing an

injunction that otherwise meets Winter's requirements. Here, however, the district court

abused its discretion in denying the injunction based on unclean hands.

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The district court held that Cetacean's hands are unclean because, " [i] n flouting the

Australian injunction, the whalers demonstrate their disrespect for a judgment of a domestic

court." Because neither the United States nor Japan recognizes Australia's jurisdiction over any

portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Moreover,

the unclean hands doctrine requires that the plaintiff have "dirtied [his hands] in acquiring the

right he now asserts, or that the manner of dirtying renders inequitable the assertion of such

rights against the defendant." Republic Molding Corp. v. B. W. Photo Utils., 319 F. 2d 347, 349

(9th Cir. I963) . Cetacean has done nothing to acquire the rights to safe navigation and

protection from pirate attacks; they flow automatically from customary international law and

treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without

interference from pirates.

* * *

The district court's orders denying Cetacean’s preliminary injunction and dismissing its

piracy claims are REVERSED. The preliminary injunction we issued on December 17, 2012, Inst.

of Cetacean Research v. Sea Shepherd Conservation Soc'y, 702 F.3d 573 (9th Cir. 2012), will

remain in effect until further order of this court. The district judge's numerous, serious and

obvious errors identified in our opinion raise doubts as to whether he will be perceived as

impartial in presiding over this high-profile case. The appearance of justice would be served if

the case were transferred to another district judge, drawn at random, and we so order in

accordance with the standing orders of the Western District of Washington. The panel retains

jurisdiction over any further appeals or writs involving this case.

NOTE

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What impact will an injunction issued by a US court have on the Sea Shepherd? On March 20, 2013, three Sea Shepherd vessels, the Steve Irwin, the Bob Barker, and the Sam Simon, returned to port in Australia claiming "victory" over Japan in the whaling wars. The group announced that the Japanese whaling vessel, Nissin Maru, had only captured about 75 whales, far fewer than its announced intentions.

Paul Watson, the founder of Sea Shepherd, was at an undisclosed location reportedly a board the vessel Brigitte Bardot, seeking a guarantee that he may come into Australia without being arrested. Watson is under indictment in Japan and was arrested by Costa Rica in 2002 on charges relating to a confrontation with a shark-finning operation. Watson skipped bail after being arrested in Germany in 2012, and is wanted under an Interpol Red Notice. On March 22, 2013, Sea Shepherd filed suit in the Netherlands against Japan, charging piracy and attempted manslaughter in connection with various confrontations at sea in early 2013.

DISPUTE CONCERNING JAPAN'S JARPA II PROGRAM OF "SCIENTIFIC WHALING"

AUSTRALIA v. JAPAN

INTERNATIONAL COURT OF J USTICE

AUSTRALIA'S APPLICATION INSTITUTING PROCEEDINGS

31 MAY 2010

[Australia's Application formally instituting suit against Japan in the International Court of Justice brings to a head the longstanding dispute between Australia and Japan concerning Japan's annual whale hunt in the Southern Pacific Ocean. In 2012, New Zealand formally intervened in the Case on the side of Australia. In its pleading, New Zealand stated that "As a member of the International Whaling Commission, New Zealand has an interest in ensuring that the IWC works effectively and that the International Whaling Convention is properly interpreted and applied. New Zealand has worked hard with Japan to try and find a permanent solution to whaling in the Southern Ocean. The government will use all avenues possible to bring to a halt Japanese whaling in the Southern Ocean."].

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To the Registrar, International Court of Justice.

The undersigned being July authorized by the Government of Australia:

Introduction

1. On behalf of the Government of Australia and pursuant to Article 36, paragraphs 1 and 2 and Article 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honour to submit to the Court the present Application instituting proceedings against the Government of Japan .

2. The present Application concerns Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic ("JARPA II"), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling ("ICRW"), as well as its other international obligations for the preservation of marine mammals and the marine environment.

3. Australia has consistently opposed Japan's JARPA II program, both through individual protests and demarches and through relevant international forums, including the International Whaling Commission ("IWC").

THE COURT'S JURISDICTION

4. The Court has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 2 of its Statute, by virtue of the operation of the declarations of acceptance made respectively by Australia, dated 22 March 2002 and by Japan, dated 9 July 2007.

CONTENT OF THE DISPUTE

Japan's obligations under the ICRW

5. In 1982 the IWC adopted under At1icle V (1)(e) of the ICRW a "moratorium" on whaling for commercial purposes fixing the maximum catch of whales to be taken in any one season at zero. This was brought into effect by the addition of paragraph 10 (e) to the Schedule to the ICRW which provides that:

"catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985-1986 pelagic seasons and thereafter shall be zero. This provision will be kept under review based upon the best scientific advice..."

Japan objected to paragraph 10 (e) within the prescribed period but subsequently withdrew its objection.

6. In 1994 the IWC adopted under Article V (1)(c) of the ICRW the Southern Ocean Sanctuary. This was brought into effect by the addition of paragraph 7 (b) of the Schedule to the ICRW which provides that:

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"commercial whaling. whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W: thence due east to 20 degrees E: thence due south to 55 degrees S: thence due east to 130 degrees E; thence due north to 40 degrees S: thence due east to 130 degrees W; thence due south to 60 degrees S: thence due east to 50 degrees W: thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Commission. . ."

Japan objected to paragraph 7 (h) within the prescribed period in relation to Antarctic minke whale stocks and has not subsequently withdrawn its objection.

7. Under the Schedule to the ICRW, Japan is therefore obliged:(a) by paragraph 10 (e), to refrain from killing all whale stocks for commercial purposes: and(b) by paragraph 7 (b), to refrain from commercial whaling in the Southern Ocean Sanctuary for all

whale stocks other than minke whale stocks.

8. In accordance with Article 26 of the Vienna Convention on the Law of Treaties and with customary international law, Japan is obliged to perform those obligations in good faith.

Conduct of Japan

9. Following the introduction of the moratorium, Japan ostensibly ceased whaling for commercial purposes. But at virtually the same time Japan launched the "Japanese Whale Research Program under Special Permit in the Antarctic" ("JARPA I")47 which it purported to justify by reference to Article VIII of the [ICRW, under which a Contracting Government may issue special permits to its nationals authorizing that national to "kill, take and treat whales for the purposes of scientific research . . ." (emphasis added).

10. JARPA I commenced in the 1987-1988 season and continued until the 2004-2005 season. The focus of JARPA I was the killing and taking of Antarctic minke whales (Balaenoptera honuerensis) within the Southern Ocean Sanctuary. Approximately 6,800 Antarctic minke whales were killed in Antarctic waters under JARPA I. This compares with a total of 840 whales killed globally by Japan for scientific research in the 31-year period prior to the moratorium. Whale meat caught during JARPA I was taken to Japan where it was placed on commercial sale.

11. JARPA II commenced in the 2005-2006 season with a two-year feasibility study. The full-scale JARPA II then commenced in the 2007-2008 season. Although Japan has purported to justify JARPA II by reference to the special permit provision in Article VIII of the ICRW, the scale of killing, taking and

47 The whaling program is conducted pursuant to permits granted by the Japanese Government to the Institute of Cetacean Research, an organization established under Japanese law.

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treating carried out under this program greatly outweighs any previous practice undertaken on the basis of scientific permits in the history of the IWC.

12. The focus of JARPA II is on the killing and taking not only of Antarctic minke whales but also of fin whales (Balaenoptera physalus), humpback whales (Megaptera novaeangliae) and possibly other species within the Southern Ocean Sanctuary. During the feasibility stage of JARPA II (2005-2006/2006-2007). 1364 Antarctic minke whales and 13 fin whales were killed; 551 Antarctic minke whales were killed during the 2007-2008 season; and 680 Antarctic minke whales and one fin whale were killed during the 2008-2009 season. Media reports suggest 506 Antarctic minke whales and one fin whale were killed in the 2009-2010 season, but these data have yet to be formally reported to the IWC. Whale meat caught during JARPA II has been taken to Japan where it has been placed on commercial sale. Japan maintains an annual quota for future seasons of JARPA II of 850 ± 10 % Antarctic minke whales. 50 fin whales and 50 humpback whales. Despite this annual quota, Japan has refrained from killing humpback whales as part of the JARPA II program.

13. In brief, the status of the whale stocks which are the principal focus of JARPA II is as follows:

14. Minke whales. There appears to have been a substantial decrease in the abundance estimates of Antarctic minke whales. This is evident from the data collected by the two, decadal long, circumpolar surveys conducted between 1985-1986 and 2003-2004 (CPII and CPIII). The several methods that have been presented to the Scientific Committee of the IWC all suggest a substantial decrease in the abundance estimates of Antarctic minke whales during the period of the surveys. The population structure of the Antarctic minke whales remains unknown, so there is a risk of depletion of small stocks.

15. Fin whales. Virtually nothing is known about the abundance or recovery of fin whales in the Southern Hemisphere and there is no assessment of these stocks underway by the Scientific Committee of the IWC. Following massive takings (750,000 between 1904 and 1979 in the Southern Hemisphere alone), fin whales were classified in the 1970s as protected stocks under the ICRW and have also been classified as "endangered" (at a very high risk of extinction) by the International Union for the Conservation of Nature (IUCN). Of the three species targeted by JARPA II, this is the one about which the least is known, but it is probable that they are still severely depleted relative to the pre-1904 population. There are limited indications of some recovery in population numbers in the Southern Hemisphere but no agreed population estimate exists. Also, the population structure of the Southern Hemisphere fin whales remains unknown. Accordingly, there is a risk of the depletion of small stocks.

16. Humpback whales. There are indications of recovery in some breeding stocks of humpback whales, including some stocks known to feed in Antarctic Areas IV and V (the regions of the JARPA II catches). However, ongoing research in Oceania indicates that some areas that had reasonably high numbers of whales (e.g. new Zealand, New Caledonia and Fiji), today have very few whales. Some of these depleted populations show little sign of recovery, and whales from these areas migrate into the JARPA II whaling

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grounds. Due to the mixing of highly depleted and less depleted breeding stocks on the feeding grounds, it is impossible to target only whales from less depleted breeding stocks in the Antarctic region. Whilst the JARPA II program has not yet killed any humpback whales, they remain listed on the description of the plan.

Refusal of Japan to Accept Recommendations of the IWC

17. Under Article VI of the ICRW the IWC may from time to time make recommendations to any or all parties on any matters which relate to whales or whaling and to the objectives and purposes of the ICRW which include, first and foremost, "safeguarding for future generations the great natural resources represented by the whale stocks".

18. The IWC has made numerous recommendations to Japan that it not proceed with JARPA II. It has done so against the background of earlier recommendations that special permit whaling must meet critically important research needs (1987): that it be conducted in a manner consistent with the Commission's conservation policy and ensure that the recovery of populations is not impeded (1987); that it only be permitted in exceptional circumstances (1995, 1998, 1999); that it be conducted using non-lethal techniques (1995-1999); and that it ensure the conservation of whales in sanctuaries (1995-1998).

19. In 2003 the IWC called on Japan to halt the JARPA program, or to revise it so that it is limited to non-lethal research methodologies. It recommended that no additional JARPA programs be considered until the Scientific Committee of the IWC had, amongst other things, completed an in-depth review of the results of sixteen years of JARPA, and further recommended that any such programs be limited to non-lethal research.

20. In 2005 the IWC:

"STRONGLY URGED the Government of Japan to withdraw its JARPA II proposal or to revise it so that any information needed to meet the stated objectives of the proposal is obtained using non-lethal means."

21. In 2007 the IWC:

"CALLED UPON the Government of Japan to suspend indefinitely the lethal aspects of JARPA II conducted within the Southern Ocean Whale Sanctuary."

22. Japan has refused to comply with any of these recommendations.

IWC Negotiations

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23. In 2008 the IWC established a Small Working Group on the Future of the IWC, comprising 33 countries (including Australia and Japan), whose mandate included consideration of the issue of special research permits. In 2009, the IWC noted that the Small Working Group had not been able to reach its goal of agreeing a package or packages on the future of the IWC by IWC61 (2009). The IWC agreed "to intensify its efforts to conclude a package or packages by IWC62 (2010) at the latest", reconstituted the Small Working Group for a further year and formed a core Support group of 12 key countries (including Australia and Japan) to assist the Chair of the IWC in discussions on the Future of the IWC and to prepare material for submission to the Small Working Group, on the firm understanding that "nothing is agreed until everything is agreed".

24. The first product of Support Group negotiations, the draft "Consensus Decision to Improve the Conservation of Whales", was presented as an incomplete draft to the meeting of the Small Working Group in March 2010 under cover of the Chair's Report to the Small Working Group on the Future of the IWC.

25. The draft Consensus Decision addressed the taking of whales allegedly pursuant to Article VIII in the following terms:

"The Commission will continue to address the different views that exist amongst the members on key issues regarding whales and whaling; including research by special permit...Proposals will be developed to address these issues for consideration during the initial five years of the arrangement."

26. In March 2010, Australia tabled a proposal in the small Working Group which, in addressing its concerns with the draft Consensus Decision, identified as one of its four major priorities that:

"Australia needs to see an immediate end to unilateral so-called "scientific" whaling purportedly conducted under Article VIII of the ICRW. From the outset, Australia has been clear that we consider any new approach must include an agreement to bring an immediate end to this form of whaling and must put in place a mechanism and timetable to address the reform of Article VIII of the ICRW to permanently end this practice."

27. The Support Group was unable to reach consensus on the draft Consensus Decision. On 22 April 2010 the IWC Chair and Vice-Chair produced a "compromise text" for consideration by member Governments at IWC62 in June 2010, emphasizing that the proposed "Consensus Decision" it contained "does not represent an agreed approach of the Support Group or the SWG".

28. Under that proposal, whaling by special permit would be suspended for ten years and a Working Group would be established to continue to examine a number of issues, including research conducted by special permit. It would report omits progress to the Commission by 2013.

29. While Japan indicated a willingness to negotiate on the numbers and species targeted by its programs in the context of a negotiated package, it continued to reiterate the "scientific" justification for JARPA II and it purported legality under international law. It has become clear that current and

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proposed IWC processes cannot resolve the key legal issue that is the subject of the dispute between Australia and Japan, namely the legality of large-scale "special permit" whaling under JARPA II.

Refusal of Japan to Comply with other Bilateral and Multilateral Requests

30. Australia has consistently raised, both within and outside the IWC, its concerns over the JARPA II program, asking Japan on several occasions to withdraw or substantially revise it.

31. On 21 December 2007, Australia together with 29 other countries and the European commission sent an Aide Memoire to the Government of Japan to inform Japan of its "strong objection to the resumption of the second Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II)..." The Aide Memoire (reproduced at Annex 1) concluded by urging "Japan to join the international community and cease all its lethal scientific research on whales and assure the immediate return of the vessels which are implementing JARPA II".

32. Japan responded that it was fully aware of the strong reaction of the international community to its scientific whaling program and in particular it’s proposed take of humpback whales. Japan states that the purpose of the program was to undertake research on the appropriate means of managing whaling and was in line with the relevant international conventions. Japan indicated that, while it would not change its research program, it would postpone its plans to hunt humpback whales as long as the process of "normalization" in the IWC proceeded.

33. Australia has appointed a Special Envoy on Whale conservation whose role is to engage with Japan, as well as other important IWWC partners, with a view to progressing Australia's position on Japan's special permit whaling programs. Discussions held by the Special Envoy with the Government of Japan have not resulted in any substantial modification or termination of the whaling program. Indeed Japan continues to reiterate the "scientific" justification for the JARPA II and its legitimacy under international law.

34. The focus of the present dispute is the conduct of Japan in proposing and implementing the JARPA II "scientific whaling" program in the Southern Ocean as described above. But it is relevant to note that Japan is also conducting, since 2000, a similar northern hemisphere program ("JARPN II"), which presents analogous issues. Australia considers that the JARPN II also breaches Japan's international obligations.

Obligations Breached by Japan

35. In proposing and implementing JARPA II, Japan has breached and is continuing to breach its international obligations.

36. In particular, Japan has breached and is continuing to breach the following obligations under the ICRW:

(a) the obligation under paragraph 10 (e) of the Schedule to the ICRW to observe in good faith the zero catch limit in relation to the killing of whales for commercial purposes; and

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(b) the obligation under paragraph 7 (b) of the Schedule to the ICRW to act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary.

37. Moreover, having regard to the scale of the JARPA II program, to the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the JARPA II program cannot be justified under Article VIII of the ICRW.

38. Further, Japan has breached and is continuing to breach, inter alia, the following obligations:

(a) under the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES")48, the Fundamental Principles contained in Article II in relation to "introduction from the sea" of an Annex I listed specimen other than in "exceptional circumstances", and the conditions in Article III (5) in relation to the proposed taking of humpback whales under JARPA II; and

(b) under the Convention on Biological Diversity, the obligations 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 (Article 3), to co-operate with other Contracting Parties, whether directly or through a competent international organization (Article 5), and to adopt measures to avoid or minimize adverse impacts on biological diversity (Article 10 (h)).

39. These provisions are to be interpreted and applied in the light of each other, and of Japan's obligations under customary international law.

Remedies Sought By Australia

40. For these reasons, and reserving the right to supplement, amplify or amend the present Application, Australia requests the Court to adjudge and declare that Japan is in breach of its international obligations in implementing the JARPA II program in the Southern Ocean.

41. In addition, Australia requests the Court to order that Japan:

(a) cease implementation of JARPA II;

(b) revoke any authorizations, permits or licenses allowing the activities which are the subject of this application to be undertaken; and

(c) provide assurances and guarantees that it will not take any further action under the JARPA II or any similar program until such program has been brought into conformity with its obligations under international law.

NOTES AND QUESTIONS

48 While all three whale species targeted by JARPA II are listed in Annex I of CITES, Japan has entered reservations as to minke and fin whales. Ed. Note: Annex I of CITES includes “all species threatened with extinction which are or may be affected by trade.”

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Consider the allegations in Australia's Application to the ICJ. What result? For analysis, see Donald K. Anton, Dispute Concerning Japan's JARPA II Program of "Scientific Whaling" (Australia v. Japan) ASIL Insight, July 3, 2010, Volume 14, Issue 20, available at http://www.asil.org/insight.

(i) Jurisdictional Issues

1. Does the ICJ have jurisdiction over this dispute? Both Australia and Japan have accepted the "compulsory" jurisdiction of the ICJ under the "optional clause" of the Statute of the International Court of Justice, Art. 36 (2).

AUSTRALIA

22 March 2002The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately.

This declaration does not apply to:

(a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement;

(b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation;

(c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court.

DONE at Canberra this 21st day of March, two thousand and two.

(Signed) Alexander John Gosse Downer,

Minister for Foreign Affairs of Australia

JAPAN

9 July 2007

"I have the honour, by direction of the Minister for Foreign Affairs, to declare on behalf of the Government of Japan that, in conformity with paragraph 2 of Article 36 of the Statute of the International Court of Justice, Japan recognizes as compulsory ipso facto and without special agreement,

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in relation to any other State accepting the same obligation and on condition of reciprocity, the jurisdiction of the International Court of Justice, over all disputes arising on and after 15 September 1958 with regard to situations or facts subsequent to the same date and being not settled by other means of peaceful settlement.

This declaration does not apply to disputes which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or Judicial settlement.

This declaration does not apply to any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.

This declaration shall remain in force for a period of five years and thereafter until it may be terminated by a written notice."

New York, 9 July 2007

(Signed) Kenzo Oshima

Permanent Representative of Japan to the United Nations

Note that, although Australia has proclaimed an EEZ around its claimed territory in Antarctica49, Australia's Application to the ICJ does not allege that Japan has violated its national fishing or conservation regulations. Australia's claim to an Antarctic EEZ is very controversial and is disputed by many countries. Under the Antarctic Treaty of 1959, the continent of Antarctica is open to all for observation and scientific research (Article VII). Article IV (1) of the Antarctic Treaty provides, however, that "Nothing [in this] treaty shall be interpreted as ... a renunciation ... of ... a claim to sovereignty'' over any portion of Antarctica. However, Article IV(2) of this treaty forbids any enlargement of an existing claim. Thus, the Antarctic Treaty is ambiguous about the existence of an EEZ. The concept of a 200 mile EEZ was not accepted in international law in 1959, so it can be argued that Australia's claim is an enlargement of its sovereignty claim. Australia's entitlement to an Antarctic EEZ is accepted in Australian domestic law, and Australia's declaration of a whale sanctuary within its claimed EEZ in implementation of the IWC's Proclamation of a Southern Ocean Whale Sanctuary is accepted by Australian courts. In 2008, the Federal Court of Australia issued declaratory relief and an injunction against Kyodo Senpaku Kaisha Ltd, a Japanese whaling company operating in the Southern Ocean within the claimed Australian EEZ. See Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd., [2008] FCA 3 (15 Jan. 2008). The result in this case is both praised and criticized. Compare Donald K. Anton, False Sanctuary: the Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica, Cornell

49 Seas and Submerged Lands Act of 1973 Proclamation, Commonwealth of Australia Gazette (Special), No. S290, 29 July 1994. (1994).

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Law School Berger International Speaker Papers (9-19-2008); and Chris McGrath, Australia can lawfully stop whaling within its Antarctic EEZ, EDO NSW Seminar, Sydney, 21 February 2008.

Australia did not invoke the Antarctic Treaty for dispute settlement since the relevant provision, Article XI does not provide for compulsory jurisdiction. And of course the International Whaling Convention itself does not have any provision for dispute settlement.

Why did Australia not invoke dispute settlement under UNCLOS? See Article 297(3).

(ii) Merits Issues

2. Read carefully the provisions of the International Convention on the Regulation of Whaling (ICRW), which is reprinted in the Documentary Supplement. Now read the allegations contained in paragraphs 5, 6, 7 and 8 of Australia's Application. Are these allegations common ground, or will Japan dispute these allegations? Consider Australia's use of the terms "ostensibly" and "purported" in these allegations.

3. The Conduct of Japan. The allegations in paragraphs 9 to 16 are primarily factual assertions. Under the ICJ's Rules of Court (1978), parties may attach to their pleadings certified copies of documents in support of their allegations. (Art. SO). Parties may also introduce evidence through witnesses and experts. (Art. 57). The Court may ask the parties to provide additional evidence or explanations. (Arts. 62 and 67). The Court may also request information from any "public international organization." (Art . 69). The ICJ may want to ask the IWC or outside experts for information dealing with paragraphs 14, 15, and 16 of the Application.

4. The JWC recommendations and negotiations with Japan. Paragraphs 17 to 34 detail the history of recommendations and negotiations with Japan.

5. Breaches of obligations by Japan. Australia alleges two breaches of specific obligations contained in the Schedule to the ICRW. The crux of the dispute between Australia and Japan is that Japan is conducting commercial whaling under the guise of research whaling. Why did Australia not allege a violation of ICRW Article VIII? Australia alleges only that the JARPA II program "cannot be justified under Article VIII." In light of the importance of this allegation, should Australia have provided more details as to why Article VIII is insufficient to justify Japan's conduct.

6. Abuse of rights. UNCLOS Article 300 prohibits "abuse of rights" and requires good faith. Why did Australia not allege an abuse of rights? The prohibition against abuse of rights is also a norm under customary international law. See Michael Byers, Abuse of Rights: An Old Principle, A New Age, 47 McGill L. J. 389, 427-429 (2002); Gillian Triggs, Japanese Scientific Whaling: An Abuse of Right or Optimum Utilization? 5 Asian-Pacific J. Envt'l L. 33 (2002). How will this issue be decided? Will the outcome of the case turn on the evidence adduced by the parties as to the nature of scientific research with respect to whales? Is the matter of scientific research to be judged by objective criteria or is this matter up to the subjective determination of each individual party to the ICRW?

7. Convention on International Trade in Endangered Species {CITES). Minke, Fin and Humpback whales are listed in Appendix I of CITES. Article 11(1) of CITES states that trade in an Appendix I

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endangered species "must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances." Article III(5) of CITES states that the "introduction from the sea" of an Appendix I species may only be done with a Certificate from an appropriate scientific authority that certifies that three conditions have been met: (1) the action will not be detrimental to the survival of the species; (2) the recipient of the specimen is equipped to house and care for the specimen; and (3) the specimen will not be used for commercial purposes. Are these provisions applicable to the JARPA II program?

8. The Convention on Biological Diversity. Both of the obligations cited in the Australia Application are qualified by the phrase: "as far as possible and appropriate". Are these soft law obligations enforceable?

(iii) Remedies

9. Remedies. How do you evaluate the remedies asked by Australia? If the suit is successful, will whaling be ended in the Southern Ocean?

10. Amendment of the ICRW. How do you evaluate the ICRW as a legal instrument? What amendments would you suggest? A dispute resolution procedure? A compliance procedure? Should enforcement of the Convention be left to the individual parties or be within the remit of the IWC?

SECTION IX. MARINE ECOSYSTEMS, BIODIVERSITY, AND MARINE PROTECTED AREAS

The marine ecosystems of the world are rich and varied. The United Nations Environment Programme50 has identified 64 Large Marine Ecosystems (LME) adjacent to continental areas that are rich in biological productivity and biodiversity. These ecosystems produce about 95% of the world's annual marine fisheries catch and contribute an estimated $12.6 trillion in goods and services annually to the world's economy. LMEs have distinct bottom topography, oceanographic features such as currents or water circulation, biological productivity, and biodiversity, and are usually areas encompassing 200 000 square kilometers or more. Within each of these large ecosystems are hundreds of diverse types of additional ecosystems, each with its own distinctive hydrography, oceanography, and trophic relationships. All of these ecosystems are vulnerable to degradation through human activities, such as fishing down food webs, pollution, offshore resource exploitation, and shipping activities. In recent years there is a growing movement to take concrete steps to preserve sensitive marine ecosystems from degradation.

Many policy instruments call for ecosystem-based action to protect marine areas from degradation.

UNCLOS Article 194, para. 5 provides that measure to protect the marine environment” shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life."

50 The UNEP Large Marine Ecosystems Report: UNEP Regional Seas Programme Report and Studies No. 182 ( UNEP, 2008).

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Agenda 21, the Action Programme adopted in Rio de Janeiro by the United Nations Conference on Environment and Development in 1992, provides that "States should identify marine ecosystems exhibiting high levels of biodiversity and productivity and other critical habitat areas and provide necessary limitations on use in these areas, through ... the designation of protected areas." (para. 17.86).

The Plan of Implementation of the World Summit on Sustainable Development (Johannesburg, 2002) confirmed the need for "the establishment of marine protected areas consistent with international law." (para. 32, c).

The UN Food and Agriculture Organization International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2008) call for conservation management measures to achieve long-term conservation and sustainable use of deep-sea fish stocks that ensure adequate protection for marine ecosystems. (para. 70).

The 2010 Conference of the Parties to the United Nations Convention on Biological Diversity adopted a recommendation that encourages parties to establish marine protected areas for conservation and management of biodiversity. (Decision X/31).

Fig.1. Large Marine Ecosystems are areas of the ocean characterized by distinct bathymetry, hydrography, productivity, and trophic interactions. They annually produce 95 percent of the world's fish catch. They are national and regional focal areas of a global effort to reduce the degradation of

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linked watersheds, marine resources, and coastal environments from pollution, habitat loss, and over-fishing.

The United Nations General Assembly adopted in 2010 Resolution 65/37 on "Oceans and the Law of the Sea" stressing the need for states to "intensify their effort" to conserve vulnerable marine ecosystems.

PROBLEM 7-14

Designating Marine Protected Areas

State A, an island state with a large territorial sea and exclusive economic zone, is active in assuring the protection of marine ecosystems within its jurisdiction. The legislature of State A has passed a Marine Sanctuaries Act under which defined areas of the ocean located in its territorial sea or EEZ may be formally designated as qualifying to be one of the following categories:

A Marine Managed Area (MMA). A MMA is a named, discrete geographic marine or estuarine area designated by law and intended to protect, conserve, or otherwise manage a variety of resources and their uses.

A Marine Reserve (MR). A MR is a discrete marine or estuarine area that is designated so the managing agency can achieve one or more of the following:1. Protect or restore rare, threatened, or endangered native plants, animals or habitats in

marine areas;2. Protect or restore outstanding, representative, or imperiled marine species, communities,

habitats and ecosystems;3. Protect or restore diverse gene pools; or4. Contribute to the understanding and management or marine resources and ecosystems by

providing the opportunity for scientific research in outstanding marine habitats or ecosystems.

A Marine Park (MP). A MP is a designated marine or estuarine area that possesses unique or distinctive characteristics and opportunities for spiritual, scientific, educational and recreational opportunities.

A Marine Protected Area (MP). An MP is a designated marine or estuarine area that contains cultural objects of historical, archaeological and scientific interest or outstanding geological features.

State A has designated areas within its territorial sea and EEZ in all four of these categories together with management regulations for each area and is enforcing these under its national law.

Questions:

1. State A would like to gain international recognition for the areas it has designated under its national law. What avenues are open under international law to preserve and protect marine areas of these types?

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2. State A is concerned about marine areas beyond national jurisdiction. State A is in the forefront of adopting restrictions prohibiting its own nationals from exploiting or disrupting areas beyond national jurisdiction that have unique gene pools, ecosystems, or geological or cultural characteristics. Is there any mechanism under international la w to protect areas of the seas beyond national jurisdiction?

Consider the following Document:

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ASSEMBLY OF THE INTERNATIONAL MARITIME ORGANIZATION

RESOLUTION A.982(24)

REVISED GUIDELINES FOR THE IDENTIFICATION AND DESIGNATION OF

PARTICULARLY SENSITIVE SEA AREAS

ADOPTED ON 1 DECEMBER 2005

1 INTRODUCTION

1.1 The Marine Environment Protection Committee (MEPC) of the International Maritime Organization (lMO) began its study of the question of Particularly Sensitive Sea Areas (PSSAs) in response to a resolution of the International Conference on Tanker Safety and Pollution Prevention of 1978. The discussions of this concept from 1986 to 1991 culminated in the adoption of Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas by Assembly resolution A. 720(17) in 1991. In a continuing effort to provide a clearer understanding of the concepts set forth in the Guidelines, the Assembly adopted resolutions A.885(21) and A.927(22). This document is intended to clarify and, where appropriate, strengthen certain aspects and procedures for the identification and designation of PSSAs and the adoption of associated protective measures. It sets forth revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (the Guidelines or PSSA Guidelines).

1.2 A PSSA is an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities. At the time of designation of a PSSA, an associated protective measure' , which meets the requirements of the appropriate legal instrument establishing such measure, must have been approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability. Information on each of the PSSAs that has been designated by IMO is available at www.imo.org.

1.3 Many international and regional instruments encourage the protection of areas important for the conservation of biological diversity as well as other areas with high ecological, cultural, historical/archaeological, socio-economic or scientific significance. These instruments further call upon their Parties to protect such vulnerable areas from damage or degradation, including from shipping activities.

1.4 The purpose of these Guidelines is to:

1. provide guidance to IMO Member Governments m the formulation and submission of applications for designation of PSSAs;

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2. ensure that in the process all interests - those of the coastal State, flag State, and the environmental and shipping communities - are thoroughly considered on the basis of relevant scientific, technical, economic, and environmental information regarding the area at risk of damage from international shipping activities and the associated protective measures to prevent, reduce, or eliminate that risk; and

3. provide for the assessment of such applications by IMO.

1.5 Identification and designation of any PSSA and the adoption of associated protective measures require consideration of three integral components: the particular attributes of the proposed area, the vulnerability of such an area to damage by international shipping activities, and the availability of associated protective measures within the competence of IMO to prevent, reduce, or eliminate risks from these shipping activities.

3 PROCESS FOR THE DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS

3.1 The IMO is the only international body responsible for designating areas as Particularly Sensitive Sea Areas and adopting associated protective measures. An application to IMO for designation of a PSSA and the adoption of associated protective measures, or an amendment thereto, may be submitted only by a Member Government. Where two or more Governments have a common interest in a particular area, they should formulate a coordinated proposal. The proposal should contain integrated measures and procedures for co-operation between the jurisdictions of the proposing Member Governments.

3.2 Member Governments wishing to have IMO designate a PSSA should submit an application to MEPC based on the criteria outlined in section 4, provide information pertaining to the vulnerability of this area to damage from international shipping activities as called for in section 5, and include the proposed associated protective measures as outlined in section 6 to prevent, reduce or eliminate the identified vulnerability. Applications should be submitted in accordance with the procedures set forth in section 7 and the rules adopted by IMO for submission of documents.

3.3 lf, in preparing its submission for a PSSA proposal, a Member Government requires technical assistance, that Government is encouraged to request such assistance from IMO.

4 ECOLOGICAL, SOCIO-ECONOMIC, OR SCIENTIFIC CRITERIA FOR THE IDENTIFICATION OF A PARTICULARLY SENSITIVE SEA AREA

4.1 The following criteria apply to the identification of PSSAs only with respect to the adoption of measures to protect such areas against damage, or the identified threat of damage, from international shipping activities.

4.2 These criteria do not, therefore, apply to the identification of such areas for the purpose of establishing whether they should be protected from dumping activities, since that is implicitly covered by the London Convention 1972 (the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972) and the 1996 Protocol to that Convention.

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4.3 The criteria relate to PSSAs within and beyond the limits of the territorial sea. They can be used by IMO to designate PSSAs beyond the territorial sea with a view to the adoption of international protective measures regarding pollution and other damage caused by ships. They may also be used by national administrations to identify areas within their territorial seas that may have certain attributes reflected in the criteria and be vulnerable to damage by shipping activities.

4.4 In order to be identified as a PSSA, the area should meet at least one of the criteria listed below and information and supporting documentation should be provided to establish that at least one of the criteria exists throughout the entire proposed area, though t he same criterion need not be present throughout the entire area. These criteria can be divided into three categories: ecological criteria; social, cultural, and economic criteria; and scientific and educational criteria.

Ecological criteria

4.4.1 Uniqueness or rarity - An area or ecosystem is unique if it is "the only one of its kind". Habitats of rare, threatened, or endangered species that occur only in one area are an example. An area or ecosystem is rare if it only occurs in a few locations or has been seriously depleted across its range. An ecosystem may extend beyond country borders, assuming regional or international significance. Nurseries or certain feeding, breeding, or spawning areas may also be rare or unique.

4.4.2 Critical habitat - A sea area that may be essential for the survival, function, or recovery of fish stocks or rare or endangered marine species, or for the support of large marine ecosystems.

4.4.3 Dependency - An area where ecological processes are highly dependent on biotically structured systems (e.g. coral reefs, kelp forests, mangrove forests, seagrass beds). Such ecosystems often have high diversity, which is dependent on the structuring organisms. Dependency also embraces the migratory routes of fish, reptiles; birds, mammals, and invertebrates.

4.4.4 Representativeness - An area that is an outstanding and illustrative example of specific biodiversity, ecosystems, ecological or physiographic processes, or community or habitat types or other natural characteristics.

4.4.5 Diversity - An area that may have an exceptional variety of species or genetic diversity or includes highly varied ecosystems, habitats, and communities.

4.4.6 Productivity - An area that has a particularly high rate of natural biological production. Such productivity is the net result o f biological and physical processes which result in an increase in biomass in areas such as oceanic fronts, upwelling areas and some gyres.

4.4.7 Spawning or breeding grounds - An area that may be a critical spawning or breeding ground or nursery area for marine species which may spend the rest of their life-cycle elsewhere, or is recognized as migratory routes for fish, reptiles, birds, mammals, or invertebrates.

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4.4.8 Naturalness - An area that has experienced a relative lack of human-induced disturbance or degradation.

4.4.9 Integrity - An area that is a biologically functional unit, an effective, self-sustaining ecological entity.

4.4.10 Fragility - An area that is highly susceptible to degradation by natural events or by the activities of people. Biotic communities associated with coastal habitats may have a low tolerance to changes in environmental conditions, or they may exist close to the limits of their tolerance (e.g., water temperature, salinity, turbidity or depth). Such communities may suffer natural stresses such as storms or other natural conditions (e.g., circulation patterns) that concentrate harmful substances in water or sediments, low flushing rates, and/or oxygen depletion. Additional stress may be caused by human int1uences such as pollution and changes in salinity. Thus, an area already subject to stress from natural and/or human factors may be in need of special protection from further stress, including that arising from international shipping activities.

4.4.11 Bio-geographic importance - An area that either contains rare bio-geographic qualities or is representative of a bio-geographic "type" or types, or contains unique or unusual biological, chemical, physical, or geological features.

Social, cultural and economic criteria

4.4.12 Social or economic dependency - An area where the environmental quality and the use of living marine resources are of particular social or economic importance, including fishing, recreation, tourism, and the livelihoods of people who depend on access to the area.

4.4.13 Human dependency - An area that is of particular importance for the support of traditional subsistence or food production activities or for the protection of the cultural resources of the local human populations.

4.4.14 Cultural heritage - An area that is of particular importance because of the presence of significant historical and archaeological sites.

Scientific and educational criteria

4.4.15 Research - An area that has high scientific interest.

4.4.16 Baseline for monitoring studies - An area that provides suitable baseline conditions with regard to biota or environmental characteristics, because it has not had substantial perturbations or has been in such a state for a long period of time such that it is considered to be in a natural or near-natural condition.

4.4.17 Education - An area that otters an exceptional opportunity to demonstrate particular natural phenomena.

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4.5 In some cases a PSSA may be identified within a Special Area and vice versa. It should be noted that the criteria with respect to the identification of PSSAs and the criteria for the designation of Special Areas are not mutually exclusive.

5.2 In proposing an area as a PSSA and in considering the associated protective measures to prevent, reduce, or eliminate the identified vulnerability, other information that might be helpful includes the following:

1. any evidence that international shipping activities are causing or may cause damage to the attributes of the proposed area, including the significance or risk of the potential damage, the degree of harm that may be expected to cause damage, and whether such damage is reasonably foreseeable, as well as whether damage is of a recurring or cumulative nature;

2. any history of groundings, collisions, or spills in the area and any consequences of such incidents;

3. any adverse impacts to the environment outside the proposed PSSA expected to be caused by changes to international shipping activities as a result of PSSA designation;

4. stresses from other environmental sources; and5. any measures already in effect and their actual or anticipated beneficial impact.

6 ASSOCIATED PROTECTIVE MEASURES

6.1 In the context of these Guidelines, associated protective measures for PSSAs are limited to actions that are to be, or have been, approved or adopted by lMO and include the following options:

6.1.1 designation of an area as a Special Area under MARPOL Annexes I , II or V , or a SO3 emission control area under MARPOL Annex VI, or application of special discharge restrictions to vessels operating in a PSSA. Procedures and criteria for the designation of Special Areas are contained in the Guidelines for the Designation of Special Areas set forth in annex I of Assembly resolution A.927(22). Criteria and procedures for the designation of SO3 emission control areas are found in Appendix 3 to MARPOL Annex VI;

6.1.2 adoption of ships' routing and reporting systems near or in the area, under the International Convention for the Safety of Life at Sea (SOLAS) and in accordance with the General Provisions on Ships' Routeing and the Guidelines and Criteria for Ship Reporting Systems. For example, a PSSA may be designated as an area to be avoided or it may be protected by other ships' routing or reporting systems; and

6.1.3 development and adoption of other measures aimed at protecting specific sea areas against environmental damage from ships, provided that they have an identified legal basis.

6.2 Consideration should also be given to the potential for the area to be listed on the World Heritage List, declared a Biosphere Reserve, or included on a list of areas of international, regional, or national importance, or if the area is already the subject of such international, regional, or national conservation action or agreements.

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6.3 In some circumstances, a proposed PSSA may include within its boundaries a buffer zone, in other words, an area contiguous to the site-specific feature (core area) for which specific protection from shipping is sought. However, the need for such a buffer zone should be justified in terms of how it would directly contribute to the adequate protection of the core area.

7 PROCEDURE FOR THE DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS AND THE ADOPTION OF ASSOCIATED PROTECTIVE MEASURES

7.1 An application for PSSA designation should contain a proposal for an associated protective measure that the proposing Member Government intends to submit to the appropriate IMO body. If the measure is not already available under an IMO instrument, the proposal should set forth the steps that the proposing Member Government has taken or will take to have the measure approved or adopted by IMO pursuant to an identified legal basis (see paragraph 7.5.2.3).

7.2 Alternatively, if no new associated protective measure is being proposed because IMO measures are already associated with the area to protect it, then the application should identify the threat of damage or damage being caused to the area by international shipping activities and show how the area is already being protected from such identified vulnerability by the associated protective measures. Amendments to existing measures may be introduced to address identified vulnerabilities.

7.3 In the future, additional associated protective measures may also be introduced to address identified vulnerabilities.

7.4 The application should first clearly set forth a summary of the objectives of the proposed PSSA designation, the location of the area, the need for protection, the associated protective measures, and demonstrate how the identified vulnerability will be addressed by existing or proposed associated protective measures. The summary should include the reasons why the associated protective measures are the preferred method for providing protection for the area to be identified as a PSSA.

7.5 Each application should then consist of two parts.

7.5.1 Part I - Description, significance of the area and vulnerability

1. Description - a detailed description of the location of the proposed area, along with a nautical chart on which the location of the area and any associated protective measures are clearly marked, should be submitted with the application.

2. Significance of the area - the application should state the significance of the area on the basis of recognized ecological, socio-economic, or scientific attributes and should explicitly refer to the criteria listed above in section 4.

3. Vulnerability of the area to damage by international shipping activities – the application should provide an explanation of the nature and extent of the risks that international shipping activities pose to the environment of the proposed area, noting the factors listed in section 5. The application should describe the particular current or future international shipping activities that are causing or may be expected to cause damage to the proposed area, including the

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significance of the damage and degree of harm that may result from such activities, either from such activity alone or in combination with other threats.

7.5.2 Part II - Appropriate associated protective measures and IMO's competence to approve or adopt such measures

1. The application should identify the existing and/or proposed associated protective measures and describe how they provide the needed protection from the threats of damage posed by international maritime activities occurring in and around the area. The application should specifically describe how the associated protective measures protect the area from the identified vulnerability.

2. If the application identities a new associated protective measure, then the proposing Member Government must append a draft of the proposal which is intended to be submitted to the appropriate Sub-Committee or Committee or, if the measures are not already available in an IMO instrument, information must be provided with regard to its legal basis and/or the steps that the proposing Member Government has taken or will take to establish the legal basis.

3. The application should identify the legal basis for each measure. The legal bases for such measures are:(I) any measure that is already available under an existing IMO instrument; or(II) any measure that does not yet exist but could become available through amendment of an

IMO instrument or adoption of a new lMO instrument. The legal basis for any such measure would only be available after the IMO instrument was amended or adopted, as appropriate; or

(III) any measure proposed for adoption in the territorial sea., or pursuant to Article 211(6) of the United Nations Convention on the Law of the Sea where existing measures or a generally applicable measure (as set forth in subparagraph (ii) above) would not adequately address the particularized need of the proposed area.

4. These measures may include ships' routing measures; reporting requirements discharge restrictions; operational criteria; and prohibited activities, and should be specifically tailored to meet the need of the area to prevent, reduce, or eliminate the identified vulnerability of the area from international shipping activities.

5. The application should clearly specify the category or categories o f ships to which the proposed associated protective measures would apply, consistent with the provisions of the United Nations Convention on the Law of the Sea, including those related to vessels entitled to sovereign immunity, and other pertinent instruments.

7.6 The application should indicate the possible impact of any proposed measures on the safety and efficiency of navigation, taking into account the area of the ocean in which the proposed measures are to be implemented. The application should set forth such information as:

1. consistency with the legal instrument under which the associated protective measure is being proposed;

2. implications for vessel safety; and

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3. impact on vessel operations, such as existing traffic patterns or usage of the proposed area.

7.7 An application for PSSA designation should address all relevant considerations and criteria in these Guidelines, and should include relevant supporting information for each such item.

7.8 The application should contain a summary of steps taken, if any, by the proposing Member Government to date to protect the proposed area.

7.9 The proposing Member Government should also include in the application the details of action to be taken pursuant to domestic law for the failure of a ship t o comply with the requirements of the associated protective measures. Any action taken should be consistent with international law as reflected in the United Nations Convention on the Law of the Sea.

7.10 The proposing Member Government should submit a separate proposal to the appropriate Sub-Committee or Committee to obtain the approval of any new associated protective measure. Such a proposal must comply with the requirements of the legal instrument relied upon to establish the measure.

8 CRITERIA FOR ASSESSMENT OF APPLICATIONS FOR DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS AND THE ADOPTION OF ASSOCIATED PROTECTIVE MEASURES

8.1 IMO should consider each application, or amendment thereto, submitted to it by a proposing Member Government on a case-by-case basis to determine whether the area fulfills at least one of the criteria set forth in section 4, the attributes of the area meeting section 4 criteria are vulnerable to damage by international shipping activities as set forth in section 5, and associated protective measures exist or are proposed to prevent, reduce, or eliminate the identified vulnerability.

8.2 In assessing each proposal, IMO should in particular consider:

1. the full range of protective measures available and determine whether the proposed or existing associated protective measures are appropriate to prevent, reduce, or eliminate the identified vulnerability of the area from international shipping activities;

2. whether such measures might result in an increased potential for significant adverse effects by international shipping activities on the environment outside the proposed PSSA; and

3. the linkage between the recognized attributes, the identified vulnerability, the associated protective measure to prevent, reduce, or eliminate that vulnerability, and the overall size of the area, including whether the size is commensurate with that necessary to address the identified need.

8.3 The procedure for considering a PSSA application b y lMO is as follows:

1. the MEPC should bear primary responsibility within lMO for considering PSSA applications and all applications should first be submitted to the MEPC :

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1. the Committee should assess the elements of the proposal against the Guidelines and, as appropriate, should establish a technical group, comprising representatives with appropriate environmental, scientific, maritime, and legal expertise;

2. the proposing Member Government is encouraged to make a presentation of the proposal, along with nautical charts and other supporting information on the required elements for PSSA designation;

3. any technical group formed should prepare a brief report to the Committee summarizing their findings and the outcome of its assessment; and

4. the outcome of the assessment of a PSSA application should be duly reflected in the report of the MEPC;

2. if appropriate following its assessment, the MEPC should designate the area "in principle" and inform the appropriate Sub-Committee, Committee (which could be the MEPC itself), or the Assembly that is responsible for addressing the particular associated protective measures proposed for the area of the outcome of this assessment;

3. the appropriate Sub-Committee or Committee which has received a submission by a proposing Member Government for an associated protective measure should review the proposal to determine whether it meets the procedures, criteria, and other requirements of the legal instrument under which the measure is proposed. The Sub-Committee may seek the advice of the MEPC on issues pertinent to the application;

4. the MEPC should not designate a PSSA until after the associated protective measures are considered and approved by the pertinent Sub-Committee, Committee, or Assembly. If the associated protective measures are not approved by the pertinent IMO body, then the MEPC may reject the PSSA application entirely or request that the proposing Member Government submit new proposals for associated protective measures. A proper record of the proceedings should be included in the report of the MEPC;

5. for measures that require approval by the Maritime Safety Committee (MSC), the Sub-Committee should forward its recommendation for approval of the associated protective measures to the MSC or, if the Sub-Committee rejects the measures, it should inform the MSC and MEPC and provide a statement of reasons for its decision. The MSC should consider any such recommendations and, if the measures are to be adopted, it should notify the MEPC of its decision;

6. if the application is rejected, the MEPC shall notify the proposing Member Government, provide a statement of reasons for its decision and, if appropriate, request the Member Government to submit additional information; and

7. after approval by the appropriate Sub-Committee, Committee, or. where necessary, the Assembly of the associated protective measures, the MEPC may designate the area as a PSSA.

8.4 IMO should provide a forum for the review and re-evaluation of any associated protective measure adopted, as necessary, taking into account pertinent comments, reports, and observations of the associated protective measures. Member Governments which have ships operating in the area of the designated PSSA are encouraged to bring any concerns with the associated protective measures to IMO so that any necessary adjustments may be made. Member Governments that originally submitted

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the application for designation with the associated protective measures, should also bring any concerns and proposals for additional measures or modifications to any associated protective measure or the PSSA itself to IMO.

8.5 After the designation of a PSSA and its associated protective measures, IMO should ensure that the effective date of implementation is as soon as possible based on the rules of IMO and consistent with international law.

8.6 IMO should, in assessing applications for designation of PSSAs and their associated protective measures, take into account the technical and financial resources available to developing Member Governments and those with economies in transition.

9 IMPLEMENTATION OF DESIGNATED PSSAs AND THE ASSOCIATED PROTECTIVE MEASURES

9.1 When a PSSA receives final designation, all associated protective measures should be identified on charts in accordance with the symbols and methods of the international Hydrographic Organization (IHO).

9.2 A proposing Member Government should ensure that any associated protective measure is implemented in accordance with international law as reflected in the United Nations Convention on the Law of the Sea.

9.3 Member Governments should take all appropriate steps to ensure that ships flying their flag comply with the associated protective measures adopted to protect the designated PSSA. Those Member Governments which have received information of an alleged violation of an associated protective measure by a ship t1ying their flag should provide the Government which has reported the offence with the details of any appropriate action taken.

NOTES AND QUESTIONS

1. Designated PSSAs. The following PSSAs have been designated under the IMO procedure:

The Great Barrier Reef, Australia; this designation was extended in 2005 to include the Torres Strait (Australia and Papua New Guinea)

The Sabana-Cam aguey Archipelago in Cuba Malpelo Island Columbia The sea around the Florida Keys, USA The Wadden Sea, Denmark, Germany and Netherlands Paracas National Reserve, Peru Western European Waters Canary Islands, Spain The Galapagos Archipelago, Ecuador The Baltic Sea Area, Denmark, Estonia, Finland, Germany, Lithuania, Poland, and Sweden The Papahanaumokuakea Marine National Monument, USA The Strait of Bonifacio, France and Italy

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2. Is the IMO procedure too limited and cumbersome? IMO protects PSSAs primarily through ship routing measures. If State A wishes to enforce stringent and detailed management measures in its PSSAs, does it risk violating the provisions of UNCLOS applicable to EEZs and its territorial sea?

3. 3. An ecosystems approach to the management of marine areas requires an understanding of the physical and biological characteristics of the particular area and the interconnections among living and non-living systems as well as human and economic and social systems that impact these resources. The ecosystem approach contrasts with a more narrowly focused management strategy that focuses on single species or short-term, sectoral, thematic approaches to management. From a fisheries perspective, the ecosystem approach requires sustaining the ecosystems that produce the fish. Is an ecosystem approach to management of marine areas compatible with UNCLOS?

4. Suppose one of the areas in its EEZ State A wishes to protect consists of an underwater shipwreck that is the remains of a ship that sank during an eighteenth century war. State A wishes to protect this site from international salvors who might dive on the wreck to extract valuable cultural objects. Can this site be protected under international law? See also the UNESCO Convention on Protection of the Underwater Cultural Heritage (2001).

5. United States law. The United States has enacted the Marine Sanctuaries Act, 16 USC sees. 1431 et seq., under which the Secretary of Commerce may designate certain areas of its territorial sea or EEZ as National Marine Sanctuaries. At present the National Marine Sanctuary Program includes 13 marine sanctuaries and one marine national monument.

Channel islands (Cal.) Cordell Bank (Cal.) Fagatele Bay (Alaska) Florida Keys (Fl.) Flower Garden Banks (Tx.) Gray's Reef (Ga.)' Gulf of the Farallones (Cal.) Hawaiian Islands Humpback Whale Sanctuary (Hawaii) Monitor (Civil War ship) Marine Sanctuary Monterrey Bay (Cal.) Olympic Coast (Wash.) Papahanaumokuakea Marine National Monument (Hawaii) Stellwagen Bank (Ma.) Thunder Bay (Mich.)

6. Developing countries. Beginning in the 1990s, developing countries approached the Global Environment Facility (GEF) for funding and technical assistance to improve the management of Large Marine Ecosystems, including those shared with neighboring nations. The GEF is supporting several hundred marine projects in 156 developing countries. See Alfred M. Duda and Kenneth Sherman, A New Imperative for Improving the Management of Large Marine Ecosystems, Ocean & Coastal Management 45 (2002) 797-833.

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7. Marine protected areas and biodiversity beyond national jurisdiction. What legal framework exists to conserve marine ecosystems and marine biodiversity on the High Seas and other marine areas beyond national jurisdictions? Consider UNCLOS Articles 86 and 87; is there any authority for marine protected areas? Consider also the provisions of UNCLOS dealing with the "Area", especially Article 136, which states that the Area and its resources are the common heritage of mankind. This concept constitutes a "third way" that is neither sovereignty nor complete freedom of action. Does this concept provide a basis for marine protected areas or for protecting the genetic resources of areas beyond national jurisdictions from indiscriminate exploitation? Note that Article 133 of UNCLOS defines the resources of the area to include only non-living resources. UNCLOS does not provide any specific regime for either the preservation or the exploitation of marine genetic resources. Professor Tullio Scovazzi has stated that the fact that there is no specific UNCLOS regime for biological resources in areas beyond national jurisdictions constitutes a legal "gap" in UNCLOS. He recommends filling this legal gap by approving a third Implementation Agreement (to go along with the 1994 Part XI Agreement on Seabed Mining and the 1995 Fish Stocks Agreement) that would create a new regime to cover this issue, which was not foreseen at the time of the conclusion of UNCLOS. See Tullio Scovazzi, The Conservation and Sustainable Use of Marine Biodiversity, including Genetic Resources, in Areas beyond National Jurisdiction: A Legal Perspective (2012), available at http://www.un.org/Oepts/los/consultative_process/ICP12_Presentation.pdf. See also Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations (World Parks Congress, Durban South Africa, 2003); and IUCN, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, Marine Series No. 4 (2012).

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