The world has a “once in a lifetime” chance to protect the high seas from exploitation, warned scientists and environmentalists, as negotiators meet at the UN headquarters in New York this week to hammer out a new treaty on the oceans.
Deep-sea mining in international waters is currently illegal, and environmental organizations, scientists, and many governments want to keep it that way. They argue that the practice could irreversibly harm one of the planet’s remotest ecosystems, one of the few places on Earth that has largely escaped human disruption.
An international group of marine scientists published an article in Science in which they outlined the desperate need for an international effort to regulate the ocean floor, in order to preserve the deep sea's unique and largely uncharted ecosystems. The article came in response to the growing threat to these ecosystems from commercial deep sea activities, particularly deep sea mining.
On Wednesday, the Center for Biological Diversity announced it has settled a federal court lawsuit against the National Oceanic and Atmospheric Administration and its parent agency, the U.S. Department of Commerce, in a move that will compel federal officials to conduct in-depth assessments of the risks to wildlife and underwater ecosystems before issuing permits for the exploration of the ocean floor for rare-earth metals and minerals.
Pew Environment advocates for a precautionary approach to the emerging deep seabed mining industry, arguing that "[l]arge, ecologically important areas of the seabed should be closed to mineral extraction, and precautionary standards must be adopted by the ISA to minimize environmental damage where mining does occur."
With land-based mineral sources in decline, the move to mine seabeds is pushing scientists, regulators, and mining companies to collaborate on frameworks and strategies for mining the seabed responsibly.
The era of deep seabed mining appears to be dawning, fueled by technological advances in robotics and dwindling land-based deposits. Rising demand for copper, cobalt, gold and the rare earth elements vital in manufacturing smartphones and other high-tech products is causing a prospecting rush to the dark seafloor deep beneath the waves.
It is true that Articles 194 and Part XV, section 5 require states to take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source” and “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from” the land and atmosphere under their jurisdiction. Convention provisions also call for states to reduce pollution by “the best practicable means at their disposal and in accordance with their capabilities” and to “endeavor to establish global and regional rules” to prevent and control pollution. The majority opinion holds that these provisions of the convention only bind the United States to act in accordance with its own laws or appropriately ratified international agreements and cannot be used as a “back door” to compel enforcement of international agreements the Senate has not ratified.
Another sovereignty-related issue that the Convention addresses is conservation and pollution on the seas, a pressing concern given the widespread exploitation of the sea and its resources.43 Part XII of the Convention, entitled Protection and Preservation of the Marine Environment, imposes upon states the “obligation to protect and preserve the marine environment.”44 The Convention also includes detailed provisions that explicitly require state parties to take measures to prevent, reduce and control pollution.45 States are required to cooperate with global and regional efforts in combating pollution by setting standards, rules, and recommended practices, many of these through appropriate international organizations.46 Furthermore, the Convention requires states to take the affirmative step of implementing systems for monitoring and reporting the risks and effects of pollution to their marine environments.47
Conservation and pollution provisions are included in the 1966 Convention on Fishing and Conservation of the Living Resources of the High Seas, to which the United States is also a party.48 As mentioned previously, this convention permits high seas fishing while also requiring states take steps to conserve the seas’ living resources.49
Fundamental differences on environmental policy have also been raised as objections to UNCLOS. Opponents see UNCLOS as a 'back door' for environmental activists to circumvent the U.S. Congress on international environmental law.70 Alternatively, accession might encourage foreign governments to bring action against the United States for environmental transgressions under the treaty‘s mandatory dispute resolution protocol.71
Use of the outlined dispute resolution process against the United States seems unlikely, though, since the United States already complies with or exceeds the environmental standards set out in UNCLOS.72 Further, provisions meant to protect the sustainability of the world‘s oceans are of global concern73 and benefit U.S. ocean-based industries.74 Even while it complies with the substance of the environmental provisions, the United States may be seen as a block to global environmental action until it actually ratifies UNCLOS.75
The proponents of this bill know full well that it will empower their special interests to gain massive power over the economic hopes of peoples throughout the world. Development is unlikely under the clumsy management of the UN bureaucracy. Moreover, the treaty by empowering environmental elites to raise significant new legal objections against agriculture, manufacturing, transportation and even technology will gain new abilities to stop or slow economic development. Ratifying LOST would be to open not one but a myriad of Pandora’s boxes – exacerbating the problems of an already overly litigious society, an America that already finds it difficult to site and build anything. We do not build a better future by empowering the forces of stasis. The NIMBY problems that America now faces may fade as LOST moves us toward NOPE policies.
Burdensome Environmental Regulations. If the United States joins UNCLOS, U.S. companies engaging in seabed exploration will be subject to a rigorous environmental regime administered by the Authority. The Authority has the power to adopt “rules, regulations and procedures” for the protection of the marine environment, with “particular attention being paid” to harm caused by drilling, dredging, and excavation.46 One regulation requires companies to apply a “precautionary approach” in regard to the marine environment “as reflected in principle 15 of the Rio Declaration.”47 This is notable, given that neither UNCLOS nor the 1994 Agreement even mentions the controversial “precautionary approach”—a principle that requires absolute scientific certainty that an action will not cause environmental harm.
U.S. companies would be required to establish an environmental “baseline” at the outset of their contracts and continually monitor and report the impact of their activities on the marine environment.48 To establish a baseline, U.S. companies would be required to collect data “on the sea- floor communities specifically relat- ing to megafauna, macrofauna, meiofauna, microfauna, nodule fauna and demersal scavengers” (bottom feed- ers) and “record sightings of marine mammals, identifying the relevant species and behavior.”49 before engaging even in preliminary testing activities, companies would have to submit a site-specific environmental impact statement to the Authority, as well as a contingency plan to respond to environmental incidents.50
One particularly noteworthy issue is how the Advice and Consent Resolution treats the domestic enforceability of the Seabed Dispute Chamber's rulings. The text of the Convention explicitly provides for the domestic enforceability of Chamber decisions. According to Article 39 of Annex VI of the Convention, "decisions ofthe Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought." Justice Stevens, who concurred with the majority in Medellin, cited Article 39 as an example of a treaty text that "necessarily incorporates international judgments into domestic law."85 Yet Article 39 is non-self-executing under the Senate's Advice and Consent Resolution, a position that is reinforced by another Resolution provision directed specifically at the decisions of this Chamber. This latter provision also calls for implementing legislation:
The United States declares, pursuant to [A]rticle 39 of Annex VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such decisions shall be subject to such legal and factual review as is constitutionally required 86 and without precedential effect in any court of the United States.
Were an effort made to enforce a decision of the Seabed Disputes Chamber in U.S. court prior to implementing legislation, would the "clear" text of Article 39, which Justice Stevens believed points to its self-executing status, prevail? Or would a court defer to the Advice and Consent Resolution's call for implementing legislation? What obstacles might be posed by the "constitutionally required" reviews of Chamber decisions, to which the Resolution refers? U.S. courts regularly enforce the decisions of commercial arbitral tribunals, but in theory any international tribunal proceeding might lead to a result that presented constitutional due process problems and that hence could not be enforced in U.S. court.87 Those who dislike the prospect of domestic enforcement of Convention provisions also may, in light of Medellin, seek to add language to the Advice and Consent Resolution specifying that Chamber decisions do not create U.S. private rights or private causes of action. Thus, even if the "clear" language of the Convention text were to lead a court to conclude that Article 39 of Annex VI of the Convention was self-executing, such additional language in the Resolution might present another bar to the enforcement of chamber decisions in U.S. courts.
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Noyes, John. "The United States and the Law of the Sea Convention: U.S. Views on the Settlement of International Law Disputes in International Tribunals and U.S. Courts." The Publicist. Vol. 1. (2009): 27-52. [ More (9 quotes) ]
Nations have already attempted to use the Law of the Sea Treaty's environmental provisions to affect the environmental policies of others. In 1999, Australia and New Zealand appealed to the International Tribunal of the Law of the Sea (ITLOS) to shut down Japan's experimental southern blue fin tuna fishing program, citing Articles 64 and 116-119. Although the Tribunal ultimately decided that it lacked jurisdiction in the case, Australia and New Zealand did gain a temporary injunction on the program.36 More recently, Ireland sought ITLOS's help in forcing the United Kingdom to abandon its planned opening of the Sellafield MOX plant, a nuclear fuel reprocessing plant in northern eastern England, arguing that it would contribute to pollution of the North Sea. Although ITLOS did not rule in Ireland's favor, it ordered both Ireland and the United Kingdom to enter into consultations.37
But some, like Sen. James Risch (R-ID), have posited that ratification would compromise our sovereignty by forcing the United States to abide by other treaties and impose overly restrictive environmental regulations. Insinuating that ratification of Law of the Sea could force the United States to join other international agreements on climate change or other environmental protections, Sen. Risch told Secretary of State Hillary Clinton at a Foreign Relations Committee hearing last month that the Law of the Sea treaty had “Kyoto written all over it,” a reference to the Kyoto Protocol, the international agreement linked to the U.N. Framework Convention on Climate Change. In response, Secretary Clinton cited the State Department legal team, saying, “there is nothing in the [Law of the Sea Convention] that commits the United States to implement any commitments on greenhouse gases under any regime, and it contains no obligation to implement any particular climate change policies.” While Sen. Risch and his allies would likely disagree with such claims, they cannot deny that diplomats such as Secretary Clinton are the very people who would establish the U.S. position. So whose opinion should carry more weight: protectionist fear mongers or actual diplomats and policymakers?
Although generally the United States exercises jurisdiction in accordance with UNCLOS provisions, the Oil Pollution Act of 1990 (OPA) is one example of the U.S. exercising extraterritorial jurisdiction and exceeding the standards in UNCLOS.6 OPA requires all ships operating in U.S. waters to be constructed with a double-hulled design.7 Additionally foreign vessels lightering in the U.S. EEZ, including “those not intending to enter United States waters,” must maintain certificates of financial responsibility if some of the oil is destined for the United States. OPA also imposes a series of additional requirements for vessels transferring oil or hazardous materials in the marine environment. Passed in response to the devastating Exxon Valdez oil spill off the coast of Prince William Sound in Alaska, OPA is a clear example of the need to protect the United States’ ability to act in the absence of adequately protective international standards.
The Senate must therefore ensure in its advice and consent that the provisions in UNCLOS do not overly limit the current authority of the United States to regulate pollution from vessels by clarifying the phrase “generally accepted international standards.” The Senate should also specify that the U.S. believes it is free to act where necessary to protect its waters where the regulated activity is not addressed by a specific international rule or standard to prevent, reduce or control its pollution.
UNCLOS, however, fails to clearly address the problem of invasive species. If the treaty were interpreted such that invasive species were intended to be covered by the broad definition of “pollution” as defined in Article 1.1.3, then coastal states would be potentially constrained in their ability to prevent the spread of these invasive species from ships operating outside of the territorial sea. As the IMO has failed to prescribe international standards for the treatment of ballast water, more stringent measures by the U.S. could be interpreted as being “beyond generally accepted international rules or standards.”9 This would leave the United States reliant upon the remaining authority granted in 211 to require treatment and practices as a condition of entry into port.
We urge instead the better interpretation that alien species are not intended to be addressed by the definition of “pollution” by UNCLOS. This interpretation is supported by the fact that invasive species are addressed by Article 196, and not in Article 194, which addresses the regulation of various types of marine pollution generally. Moreover Article 196 distinguishes invasive species from pollution within the provision. We recommend that the Senate include an interpretive statement on this issue as part of its advice and consent to be included with the instrument of accession specifying that the United States does not view invasive species as “pollution” for purposes of UNCLOS.
By ratifying UNCLOS, the United States would be submitting itself to a much wider range of international controls than it has in the past and would give more power and legitimacy to misguided efforts to establish a supra-national government at the United Nations.
Opponents argue that UNCLOS's provisions calling for states to reduce pollution through "best practicable means" could be used as a "backdoor" to force environmental treaties on the U.S. However, legal scholars and State Department officials have concluded that the convention only binds the United States to act in accordance with its own laws or appropriately ratified international agreements and cannot be used as a “back door” to compel enforcement of international agreements the Senate has not ratified.