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Max-Planck-Institut für ausländisches

öffentliches Recht und Völkerrecht

Beiträge zum ausländischen
öffentlichen Recht und Völkerrecht

Begründet von Viktor Bruns

Herausgegeben von
Armin von Bogdandy · Rüdiger Wolfrum

Band 221
Holger Hestermeyer · Nele Matz-Lü ck
Anja Seibert-Fohr · Silja Vö neky

Law of the Sea in Dialogue

ISSN 0172-4770
ISBN 978-3-642-15656-4 e-ISBN 978-3-642-15657-1
DOI 10.1007/978-3-642-15657-1
Springer Heidelberg Dordrecht London New York

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

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

Tackling the issue of global warming Christian Tomuschat explores if

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

tion discussing action against arms shipment on the seas in violation of

Security Council resolutions or otherwise threatening international
peace and security. Using as an example two recent cases, in which
German ships transporting arms were intercepted, the article analyzes
possible legal grounds for such interceptions ranging from Security
Council authorization to the Proliferation Security Initiative, specific
treaties authorizing boarding and the Protocol to the Convention for
the Suppression of Unlawful Acts against the Safety of Maritime Navi-
The editors would like to thank Marlitt Brandes for her editorial assis-
tance, Kate Elliot for performing the native speaker check and the pub-
lishing staff at the Max Planck Institute, in particular Dr. Christiane
Philipp, for their dedicated work.

Holger Hestermeyer, Nele Matz-Lück, Anja Seibert-Fohr, Silja Vöneky

Table of Contents

Global Warming

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

Exploitation and Use of the Global Commons

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

Law of the Sea and Security

Mahnoush H. Arsanjani/ W. Michael Reisman

East African Piracy and the Defense of World Public Order ....... 137
Thomas A. Mensah
Piracy at Sea – a New Approach to an Old Menace...................... 161
Jochen Abr. Frowein
The Security Council and the Security on the Seas ....................... 179
List of Contributors

Arsanjani, Mahnoush H.
Former Director, Codification Division of Office of Legal Affairs, Uni-
ted Nations; Associated Member of the Institut de Droit International

Bothe, Michael
Professor (em.) of Public Law, Public International Law and European
Law, Faculty of Law, J.W. Goethe University Frankfurt/Main

Brunnée, Jutta
Professor of Law and Metcalf Chair in Environmental Law, Faculty of
Law, University of Toronto

Frowein, Jochen Abr.

Professor (em.) of Constitutional and Public International Law, Faculty
of Law, Heidelberg University; Director (em.) Max Planck Institute for
Comparative Public Law and International Law; former Vice-President
of the European Commission of Human Rights; Member of the Institut
de Droit International

Hafner, Gerhard
Professor (em.) of Public International Law and European Law at the
Institute of International Law and International Relations, Faculty of
Law, University of Vienna; Member of the Institut de Droit Interna-

Mensah, Thomas A.
Former Judge and President of the International Tribunal for the Law
of the Sea; Member of the Institut de Droit International
XII List of Contributors

Morrison, Fred L.
Popham Haik Schnobrich/Lindquist and Vennum Professor of Law,
University of Minnesota

Reisman, W. Michael
Myres S. McDougal Professor of International Law, Yale Law School;
Member of the Institut de Droit International

Tomuschat, Christian
Professor (em.) of Public International Law, Faculty of Law, Humboldt
University Berlin; former member and president of the International
Law Commission; Member of the Institut de Droit International

Treves, Tullio
Professor of International Law, University of Milan; Judge of the Inter-
national Tribunal for the Law of the Sea; Member of the Institut de
Droit International
Global Warming
Global Warming and State Responsibility
Christian Tomuschat*

A. Introduction

Global warming has become an undeniable fact.1 It has the potential to

threaten life on this planet. Until a few years ago, even knowledgeable
authors called the results of the many negative forecasts by climate spe-
cialists into doubt. It seems that such objections have eventually re-
ceded in quantity as well as in quality.2 That climate change is to be
traced back to human activity must be accepted as a simple truth which
can no longer be talked away. The only remaining question seems to be
whether the planet earth finds itself at the same time in a natural cycle
that pursues its course independently of man-made causes. This lack of
definitive certainty places heavy obstacles into the path to coordinated
measures suited to combat deleterious and even disastrous develop-
ments. Only if the diagnosis is clear and irrebuttable will it be possible
for humankind to launch a comprehensive program designed to avert
the worst consequences of a phenomenon that is of unparalleled com-

* Text of a presentation made on 4 December 2009, i.e. before the Copen-

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

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 3

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_1, © Springer-Verlag Berlin Heidelberg 2011
4 Tomuschat

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

Taken note of by GA Res. 56/83 of 12 December 2001.
Global Warming and State Responsibility 5

not be considered as an iron cage that lacks any kind of flexibility. In

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

ILC Draft Articles on the Responsibility of International Organizations,
adopted on first reading in 2009, Report of the ILC, UN Doc. A/64/10, 19
para. 50 (2009).
GA Res. 60/147 of 16 December 2005. For a commentary see C. To-
muschat, Reparation in Favour of Individual Victims of Gross Violations of
Human Rights and International Humanitarian Law, in: M. G. Kohen (ed.),
Promoting Justice, Human Rights and Conflict Resolution Through Interna-
tional Law. Liber Amicorum Lucius Caflisch, 569-590 (2007).
6 Tomuschat

such a regime, where the causation of damage would automatically trig-

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

G. Handl, Liability as an Obligation Established by a Primary Rule of In-
ternational Law, 16 Netherlands Yearbook of International Law 49, at 58
For an overview see A. Kiss/D. Shelton, Strict Liability in International
Environmental Law, in: T. M. Ndiaye/R. Wolfrum (eds.), Law of the Sea, Envi-
ronmental Law and Settlement of Disputes. Liber Amicorum Judge Thomas A.
Mensah, 1131, at 1135-1138 (2007).
ILC Report, UN Doc. A/58/10, at 111 para. 174 c) (5) (2003). This view is
also reflected in the General Commentary on the final outcome of the exercise,
the ILC Draft principles on the allocation of loss in the case of transboundary
harm arising out of hazardous activities, ILC Report, UN Doc. A/61/10, at 112
para. 67, para. 8 (2006).
See Resolution of the Institute of International Law on “Responsibility
and Liability under International Law for Environmental Damage”, 4 Septem-
ber 1997, Article 4, 37 ILM 1474 (1997); G. Handl, International Accountability
for Transboundary Environmental Harm Revisited: What Role for “State Li-
ability”?, 37 Environmental Policy and Law 116-125 (2007).
Global Warming and State Responsibility 7

B. Identification of Possible Legal Relationships

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

For a study of the tradition of bilateralism in the law of State responsibil-
ity see G. Nolte, From Dionisio Anzilotti to Roberto Ago: The Classical Inter-
national Law of State Responsibility and the Traditional Primacy of a Bilateral
Conception of Inter-state Relations, 13 European Journal of International Law
1083-1098 (2002).
Trail Smelter Arbitration (USA v. Canada), 3 UNRIAA 1905.
See also ITLOS, MOX Plant (Ireland v. UK), Order of 3 December 2001,
available at <>. For a general discussion see
P.-T. Stoll, Transboundary Pollution, in: F. L. Morrison/R. Wolfrum (eds.), In-
ternational, Regional and National Environmental Law 169-200 (2000).
Pulp Mills on the River Uruguay (Argentina v. Uruguay). On 13 July
2006, the ICJ refused to issue an injunction against Uruguay. The case is cur-
rently (November 2009) under deliberation for the final judgment on the mer-
8 Tomuschat

same time, albeit with different degrees of involvement (in order to

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

I. Responsible Authors

After having established a balance sheet of dangerous human activities,

the next step would consist of attributing a share of responsibility to
individual States. This amounts to an adventurous undertaking. It is
clear that the United States and Russia (the Soviet Union) have contrib-
uted much more to global warming than Luxemburg, notwithstanding
the glorious industrial past of this last country, or most of the countries
of the African continent. But this simple comparison does not really

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

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

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

utable to them if they have failed to discharge their controlling func-

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

II. Victims

The next issue to be considered is the identification of victims. Here,

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

See US Supreme Court, Massachusetts v. EPA, 549 U.S. 497 (2007).
According to the official UN language, climate change “is a common con-
cern of humankind”, GA Res. 43/53 of 6 December 1988, para. 1; United Na-
tions Framework Convention on Climate Change, 9 May 1992, Preamble para.
1, 1771 UNTS 107.
For a description of the impact global warming has on the most vulner-
able countries see, for instance, S. C. Aminzadeh, A Moral Imperative: The
Human Rights Implications of Climate Change, 30 Hastings International and
Comparative Law Review 231-265, at 241 et seq. (2007).
Global Warming and State Responsibility 11

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

See the study by E. A. Laws, Climate Change, Oceans, and Human
Health, 21 Ocean Yearbook 129-175 (2007).
An account of the situation of Tuvalu is given by Culley (note 2), at 91-
125. However, according to other reports the sea level has remained stable in
those regions over the last decade, see T. Aung/A. Singh, Preliminary Results of
the South Pacific Sea Level and Climate Monitoring Project and Its Capacity
Building Program, 21 Ocean Yearbook 69-89 (2007).
The beaches of the east coast of the United States seem also to be under
threat, see D. A. Grossman, Warming up to a Not-So-Radical Idea: Tort-Based
Climate Change Litigation, 28 Columbia Journal of Environmental Law 1, at
12 (2003).
12 Tomuschat

III. The Role of the International Community

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

For the latest discussion of this topic see B. Fassbender, The United Na-
tions Charter as the Constitution of the International Community, at 52 et seq.
Global Warming and State Responsibility 13

every individual member is necessary. It does not enjoy the power to

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

See the debate held by the Security Council on 17 April 2007, S/PV.5663,
where some countries challenged the competence of the Council to engage in
environmental matters. In particular, the representative of Pakistan said that
(p. 24) the “ever-increasing encroachment by the Security Council on the roles
and responsibilities of other principal organs of the United Nations represents a
distortion of the principles and purposes of the Charter.”
The commentary on Article 33(1) ARS confines itself to citing the words
of the provision, see J. Crawford, The International Law Commission’s Articles
on State Responsibility. Introduction, Text and Commentaries, at 209, para. 2
14 Tomuschat

“owed to the international community as a whole”.25 The commentary

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

The commentary on UNCLOS by M. H. Nordquist/S. Rosenne/A.
Yankov (eds.), UN Convention on the Law of the Sea, Vol. IV, at 35-43 (on Ar-
ticle 192) and 50-68 (on Article 194) (1991) retraces essentially the drafting his-
tory and does not answer the questions which currently require elucidation.
Barcelona Traction, Light and Power Company (Belgium v. Spain), Sec-
ond Phase, ICJ Reports 1970, 3, at 32, para. 33.
Crawford (note 24), at 278, para. 8.
A. Boyle, Codification of International Environmental Law and the In-
ternational Law Commission: Injurious Consequences Revisited, in: A. Boyle/
D. Freestone, International Law and Sustainable Development: Past Achieve-
ments and Future Challenges, 61, at 76 (2001); scepticism is also expressed by
Ni Kuei-Jung, Third State Countermeasures for Enforcing International Com-
mon Environmental Interests: The Implication and Inspiration of the ILC’s Ar-
ticles on State Responsibility, 22 Chinese Yearbook of International Law and
Affairs 1, at 36-47 (2004). But see R. Verheyen, Climate Change Damage and
International Law. Prevention Duties and State Responsibility, at 267 (2005).
Global Warming and State Responsibility 15

More or less the same rule on obligations owed to the international

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

C. Wrongful Conduct

The centrepiece of international responsibility is the breach of an inter-

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

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

On reflection, it becomes clear that ambitious aims like zero emissions

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

I. Polluter Pays Principle

Among the principles of international environmental law the polluter

pays principle is constantly mentioned. It might be attractive to resort
to this principle in allocating the costs of global warming. However, the
scope and meaning of this principle are far from being neatly defined.
The emission of GHGs produces deleterious warming effects only
Global Warming and State Responsibility 17

through a complex process, involving many chemical and physical fac-

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

US Supreme Court, Massachusetts v. EPA, 549 U.S. 497 (2007).
Emphasis added.
V. P. Nanda, Agriculture and the Polluter Pays Principle, 54 American
Journal of Comparative Law 317-339 (2006).
See P. Birnie/A. Boyle, International Law & the Environment, at 92-95
(2 ed. 2002); N. de Sadeleer, Environmental Principles. From Political Slogans
to Legal Rules, at 7 (2002); P. Sands, Principles of International Environmental
Law, at 280 (2nd ed., 2003); ILC, Commentary on Principle 3 of the “Draft prin-
ciples on the allocation of loss in the case of transboundary harm arising out of
transboundary activities”, ILC Report, UN Doc. A/61/10, at 145-147, paras.
13-15 (2006).
18 Tomuschat

should be put on the unlawfulness of the causal act or on the injurious

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

II. Duties of Prevention?

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

“National authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost of pollution,
with due regard to the public interest and without distorting international trade
and investment.”
Y. Matsui, The Principle of ‘Common but Differentiated Responsibili-
ties’, in: N. Schrijver/F. Weiss, International Law and Sustainable Development.
Principles and Practice, 73, at 79 (2004).
Verheyen (note 28), at 55-67; id., The Climate Change Regime after
Montreal: Article 2 of the UN Framework Convention on Climate Change, 7
Yearbook of European Environmental Law 234, at 236-251 (2007).
Global Warming and State Responsibility 19

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

Verheyen (note 28), at 79 et seq., 135; C. Voigt, State Responsibility for
Climate Change Damages, 77 Nordic Journal of International Law 1-22 (2008).
Verheyen (note 28), at 82; Voigt (note 37), at 6-7.
See, for instance, C. G. Burns, Potential Causes of Action for Climate
Change Damages in International Fora: The Law of the Sea Convention, 27
McGill International Journal of Sustainable Development and Policy 27, at 47
(2006); S. Vanderheiden, Atmospheric Justice. A Political Theory of Climate
Change, at 56 (2008).
20 Tomuschat

garded only as a point of departure, to be particularized through later

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

See above at section B. I. and II.
M. Jaén, Protecting the Oceans from Climate Change: An Analysis of the
Role of Selected International Instruments on Resources and Environmental
Protection in the Context of UNCLOS, 21 Ocean Yearbook 91, at 119 (2007).
Island of Palmas case (Netherlands v. U.S.), 4 April 1928, 2 RIAA 829, at
Rio Declaration on Environment and Development, 31 ILM 876 (1992).
Global Warming and State Responsibility 21

law relating to the environment”.44 In the Gabčíkovo-Nagymaros

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

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Reports 1996, 236, at 242, para. 29.
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997,
7, at 41, para. 53.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Order of 13
July 2006, para. 72.
See also Kiss/Shelton (note 7), at 1132 et seq.
See Aminzadeh (note 18), 231-265; S. F. Leroy, Can the Human Rights
Bodies be Used to Produce Interim Measures to Protect Environment-Related
Human Rights?, 15 Review of European Community & International Envi-
ronmental Law 66-81 (2006).
22 Tomuschat

suffice: it cannot be denied that human beings whose territory is threat-

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

ECHR, López Ostra v. Spain, Judgment of 9 December 1994, Appl. No.
ECHR, Hatton v. UK, Judgment of 8 July 2003, Appl. No. 36022/97
(Grand Chamber).
From the more recent jurisprudence see ECHR, Leon and Agnieszka
Kania v. Poland, Judgment of 21 July 2009, Appl. No. 12605/03, para. 98.
This is the avenue recommended by E. A. Posner, Climate Change and
International Human Rights Litigation: A Critical Appraisal, 155 University of
Pennsylvania Law Review 1925-1945 (2007). For a study of possible causes of
action under U.S. law see Grossman (note 21), 1-61.
N. P. Sagués, Desafíos de la jurisdicción constitucional en América Latina,
Revista electrónica Foro Constitucional Iberoamericano, at 6, available at
Global Warming and State Responsibility 23

be considered unlawful because it was incompatible with human life:

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

D. Liability for Injurious Consequences Arising out of Acts

Not Prohibited by International Law

It is instructive in this connection to turn to the project on injurious

consequences caused by acts not prohibited by international law. For
more than two decades the ILC struggled with that topic which it had
put on its agenda on the assumption that liability does not arise solely
from wrongful acts, but may also be entailed by activities that are car-
ried out in consonance with the established rule that every State is free
to use its territory as it sees fit. In fact, it seems quite plausible that li-
ability may have as its origin other legal principles, in particular princi-
ples of fairness, equity, and equality. During that long period when dif-
ferent special rapporteurs submitted sophisticated reports56 it was de-

See Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, at 178, para.
106; Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), 19 December 2005, para. 216.
See J. H. Knox, Climate Change and Human Rights Law, 50 Virginia
Journal of International Law 163, at 165 (2009).
Quentin-Baxter, Barboza, Rao.
24 Tomuschat

bated time and again whether the legal characterization of unlawfulness

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

See C. Tomuschat, International Liability for Injurious Consequences
Arising out of Acts not Prohibited by International Law – The Work of the In-
ternational Law Commission, in: T. Scovazzi/F. Francioni (eds.), International
Responsibility for Environmental Harm, at 37-72 (1991).
See ILC Report, UN Doc. A/56/10, at 144, para. 82 (2001).
Id., at 146.
ILC Report, UN Doc. A/61/10, at 106, para. 66 (2006). For a critical
comment on the earlier 2004 draft see C. Foster, The ILC Draft Principles on
the Allocation of Loss in the Case of Transboundary Harm Arising out of Haz-
ardous Activities: Privatizing Risk?, 14 Review of European Community & In-
ternational Environmental Law 265-282 (2005).
General commentary, ILC Report, UN Doc. A/61/10, at 113, para. 11.
Global Warming and State Responsibility 25

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

E. Causation

The traditional rules on State responsibility furthermore presuppose a

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

Id., at 112, para. 7.
For a critical assessment see Kiss/Shelton (note 7), at 1140.
GA Res. 62/68 of 6 December 2007.
See Handl (note 9), at 121.
Crawford (note 24), at 204. See also B. Bollecker-Stern, Le préjudice dans
la théorie de la responsabilité internationale, at 182 et seq. (1973).
26 Tomuschat

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

F. Change of Perspective in Light of New Scientific


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

The term is used here in a sense different from the connotation it has in
the work of J. Rawls, A Theory of Justice, at 136 (1971).
Global Warming and State Responsibility 27

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


G. A Different Approach

The lesson of the preceding considerations is simple. The problems

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

The author agrees with B. Baker Röben, Civil Liability as a Control
Mechanism for Environmental Protection at the International Level, in: F. L.
Morrison/R. Wolfrum (eds.), International Regional and National Environ-
mental Law, 821, at 822 et seq. (2000) (addressing environmental damage in gen-
In that respect, the author agrees with E. Neumayer, In Defence of His-
torical Accountability for Greenhouse Gas Emissions, 33 Ecological Economics
185, at 186 (2000).
28 Tomuschat

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

A whole book on the parameters to be followed in shaping such a regime
has been written by S. Vanderheiden, Atmospheric Justice. A Political Theory
of Climate Change (2008). See also N. B. Bekkhus, Kyoto and Beyond, Interna-
tional Burden-Sharing in the Fight Against Climate Change, 61 Studia Diplo-
matica 177 et seq. (2008); S. Cane, Cosmopolitan Justice, Responsibility, and
Global Climate Change, 18 Leiden Journal of International Law 747-775
(2005); Matsui (note 35), at 79.
See L. Boisson de Chazournes, Precaution in International Law, in: Law
of the Sea, Environmental Law and Settlement of Disputes (note 7), 21-34;
Knox (note 55), at 168, 212-218; R. Wolfrum/J. Friedrich (eds.), The Frame-
work Convention on Climate Change and the Kyoto Protocol, in: U. Beyer-
lin/P.-T. Stoll/ R. Wolfrum (eds.), Ensuring Compliance with Multilateral Envi-
ronmental Agreements, 53, at 54 (2006).
Global Warming and State Responsibility 29

and must accept them. Copenhagen cannot be avoided.72 To resort to

the rules on State responsibility seems like a lawyer’s trick, a shortcut to
the desired goal; lacking support at the grassroots level, it cannot be

Obviously, the Copenhagen Accord of 18 December 2009, decision
-/CP.15, cannot be hailed as a great success. But it leaves the door open for fur-
ther negotiations.
Measures to Fight Climate Change – A Role for
the Law of the Sea?
Michael Bothe

1. Introduction

The excessive man-made greenhouse effect that is generally supposed to

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

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 31

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_2, © Springer-Verlag Berlin Heidelberg 2011
32 Bothe

− What are the specific chains of causation we have to address con-

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

See S. N. Krohn, Twenty Thousand Leagues Under the Sea: On the Legal
Admissibility of Strategies to Mitigate Climate Change by Ocean Sequestration,
in: M. Bothe/E. Rehbinder (eds.), Climate Change Policy, 183-216, at 185 et
seq. (2005); R. Rayfuse/M. G. Lawrence/K. M. Gjerde, Ocean Fertilisation and
Climate Change: The Need to Regulate Emerging High Sea Uses, 23 Interna-
tional Journal of Marine and Coastal Law 297-326 (2008).
Krohn (note 1), at 185.
Measures to Fight Climate Change − A Role for the Law of the Sea? 33

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

2. The Oceans as Carbon Sink – Protection of Their


The absorption of carbon dioxide by the sea is due to two different

processes, called solubility pump and biological pump.8 As to the for-
mer, there is a rapid transfer of carbon dioxide from the atmosphere
into the water through wave action which is effective down to a depth
of approximately 100m. This solubility of CO2 increases with decreas-
ing water temperature and vice versa. This means that the rise of tem-
peratures due to climate change negatively affects the function of the
sea as a carbon sink. This is a kind of self-acceleration of the greenhouse

GA Res. 63/111 of 5 December 2008.
United Nations Environment Program.
UNESCO, IMO (International Maritime Organisation).
Examples are the Conferences of the Parties to relevant treaties, such as
the London Dumping Convention and the Convention on Biological Diversity
(CBD), see below.
A central role is played by the IPCC (Intergovernmental Panel on Cli-
mate Change). As to relevant aspects of marine science, there is GESAMP
(Joint Group of Experts on the Scientific Aspects of Marine Environmental
Krohn (note 1), at 186.
34 Bothe

The latter effect, the biological pump, is due to phytoplankton activity

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

3. The Oceans as Carbon Sink – Enhancing Their Function

The negative developments just described obviously raise the question

how the function of the oceans as carbon sink could be preserved or
even enhanced. A measure under discussion in this respect is to push
the biological pump by seeding iron particles as inorganic nutrient into
the sea (ocean fertilization). This would then increase phytoplankton
activity, which leads to more CO2 being absorbed.11 The overall envi-
ronmental effects of such a procedure are, to say the least, highly con-
troversial.12 Some scientists doubt whether the intended result could be

Science Daily, available at <
/02/09216092937.htm>, last visited 16 November 2009.
Science Daily, id.
Krohn (note 1), 188 et seq.; Rayfuse/Lawrence/Gjerde (note 1), at 302 et
Wikipedia, Iron fertilization, available at <
Measures to Fight Climate Change − A Role for the Law of the Sea? 35

achieved at all at a price which is commercially feasible,13 so the positive

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

Will Ocean Fertilization to Remove Carbon Dioxide from Atmosphere
Work?, Science Daily, 10 April 2003, available at <http://www.sciencedaily.
com/releases/2003/04/030410073330.htm>; Ocean Fertilization ‘Fix’ for Global
Warming Discredited by New Research, Science Daily, 30 November 2007,
available at
C. E. Pirtle, Military Uses of Ocean Space and the Law of the Sea in the
New Millenium, 31 Ocean Development & International Law 7-45, at 15
Art. 3 (3) Kyoto Protocol (KP).
36 Bothe

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

London Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter, 29 December 1972, 1046 UNTS 120, 11 ILM 1294
Protocol to the Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter, 7 November 1996, 36 ILM 1 (1997).
See Rayfuse/Lawrence/Gjerde (note 1), at 313.
Cf. Rayfuse/Lawrence/Gjerde (note 1), at 316.
Res. LC-LP.1 (2008) of 31 October 2008; against this exception de lege
lata Rayfuse/Lawrence/Gjerde (note 1), at 316 et seq., but for a regulated ex-
ception in the same sense de lege ferenda at 320 et seq.
Measures to Fight Climate Change − A Role for the Law of the Sea? 37

(The Meeting)

Noting that knowledge on the effectiveness and potential environ-
mental impacts of ocean fertilization is currently insufficient to jus-
tify activities other than legitimate scientific research;

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

R. Wolfrum, Zusammenfassung der Gutachten zum deutsch-indischen
LOHAFEX-Experiment im Südwestatlantik sowie abschließendes Votum,
available at <
5 June 1992, 1760 UNTS 79; 31 ILM 818 (1992).
38 Bothe

fertilization has an impact on biological processes taking place in the

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

Res. IX/16 C, 19-30 May 2008.
GA Res. 63/111 of 5 December 2008.
Protocol on Environmental Protection to the Antarctic Treaty, 4 October
1991, 30 ILM 1455 (1991).
Measures to Fight Climate Change − A Role for the Law of the Sea? 39

Under the other regional conventions,26 the legal situation would be

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

4. The Oceans as Carbon Sinks – Negative Environmental


Newer studies seem to show that an increasing absorption of CO2 by

the oceans (to the extent it is not compensated by the processes just de-
scribed) causes an acidification which has negative impacts on marine
life,28 for instance on the food chain of corals which may lose the capac-
ity to produce the calcium needed for their growth. In other words, an
effect which is desirable from the point of view of the fight against cli-
mate change (and arguably even required by Art. 4 (1)(d) UNFCCC),29
may be detrimental from the point of view of preserving marine biodi-
versity. There may thus be a tension between two different regulatory
regimes, which by the way exists in a similar manner in relation to car-
bon sinks on land. The compatibility of certain land use, land use
change and forestry (LULUCF) activities, which can enter into the cal-

Protocol for the Prevention and Elimination of Pollution of the Mediter-
ranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, 16 Feb-
ruary 1976, revised 10 June 1995, Art. 3 (4)(b), 34 ILM 1542 (1995); (OSPAR)
Convention for the Protection of the Marine Environment of the North-East
Atlantic, 22 September 1992, Art. 1 (g)(ii), 32 ILM 1069(1993).
M. Bothe, Urheberrecht und “traditionelles Wissen”. Fragmentierung
und Konkordanz im Völkerrecht, in: R. M. Hilty/J. Drexl/W. Nordemann
(eds.), Schutz von Kreativität und Wettbewerb, Festschrift für Ulrich Löwen-
heim, at 19-30 (2009).
Ocean Acidification, Wikipedia, available at <
“All Parties … shall … (d) Promote sustainable management, and pro-
mote and cooperate in the conservation and enhancement, as appropriate, of
sinks and reservoirs of all greenhouse gases not controlled by the Montreal Pro-
tocol, including biomass, forests and oceans as well as other terrestrial, coastal
and marine ecosystems”.
40 Bothe

culation of net greenhouse gas emissions,30 with the Biodiversity Con-

vention is questionable.31 In the case of ocean biodiversity, there can be
no conflict with the KP as ocean sinks are not included in the latter. But
there may be some tension between the duty to promote sinks, includ-
ing marine sinks, provided by Art. 4 (1)(d) UNFCCC, and the duty to
preserve marine biodiversity. All this is an example of how the fragmen-
tation of international law affects treaty making and treaty implementa-
tion. It does at times lead to tensions between different treaty regimes.
But treaties are usually made, and treaty bodies produce secondary
rules, with due regard to other treaty regimes. This may lead to syner-
getic effects32 or mutual supportiveness between treaty regimes.33

5. The Oceans as Carbon Storage Site

Carbon capture and sequestration (CCS) has become a major issue.34

The use of the oceans as carbon storage site has to be distinguished
from the function of carbon sink. The latter is a natural phenomenon;
the former is the artificial injection of CO2 into deeper waters with a
view to prevent these gases from getting back into the atmosphere. It
may take the form of dissolution of CO2 in deep waters or of the crea-
tion of artificial lakes of liquid CO2 on the seabed.35 The environmental
consequences of this method are also controversial.

Art. 3 (3) KP.
A. Caparrós Gass/F. Jacquemont, Biodiversity and Carbon Sequestration
in Forests: Economic and Legal Issues, in: Bothe/Rehbinder (eds.) (note 1), 149-
182, at 169 et seq.
See Res. IX/16 of the CBD COP, Annex II: “Indicative List of Activities
by Parties to Promote Synergies Among the Rio Conventions”.
M. Sanwal, Trends in Global Environmental Governance: The Emergence
of a Mutual Supportiveness Approach to Achieve Sustainable Development, 4
Global Environmental Politics 16-22 (2004).
Report of the Thirtieth Consultative Meeting and the Third Meeting of
Contracting Parties to the 1996 Protocol on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter 1971, LC 30/16, 9 December 2008,
sec. 5, at 23 et seq.
IPCC Special Report on Carbon Dioxide Capture and Storage, 298 et seq
Measures to Fight Climate Change − A Role for the Law of the Sea? 41

In respect of CCS as well, it has to be asked, too, whether it is covered

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

W. Graf Vitzthum, Raum und Umwelt im Völkerrecht, in Graf Vitzthum
(ed.), Völkerrecht, 387-489, at 436 (4th ed. 2007).
Ad hoc Working Group on Further Commitments for Annex I Parties
under The Kyoto Protocol, FCCC/KP/AWG/2009/10/Add.3/Rev.3, 16 No-
vember 2009, paras. 5-8.
42 Bothe

posal would therefore require an amendment to these various treaties.38

Both under the London Dumping Protocol and under the North-East
Atlantic (OSPAR) Convention, the problem has been solved by pro-
hibiting the storage of carbon dioxide streams in the water column or
on the seabed,39 while permitting storage under certain conditions in
geological formations below the seabed.40 In the case of the London
Dumping Protocol, this was achieved by an Amendment to the Proto-
col,41 under the OSPAR Convention by amendments to Annexes II and

6. Shipping as a Source of Greenhouse Gas Emissions

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

See for the Convention for the Protection of the Marine Environment of
the North-East Atlantic the Summary Record of the Meeting of the OSPAR
Commission, 28 June-1 July 2004, Annex 12, at 4.
OSPAR decision 2007/1, 25-29 June 2007.
OSPAR decision 2007/2.
Adopted 2 November 2006, entry into force 10 February 2007.
Amendments to the Annexes are adopted by a majority decision of the
Commission, but are thereafter subject to the requirement of acceptance by
States Parties, Art. 15, 17 of the Convention.
True scale of CO2 emissions from shipping revealed, The Guardian, 13
February 2008, available at <
Prevention of Air Pollution from Ships, Second IMO GHG Study 2009,
Doc. MEPC 59/4/7, 6: 3.3%.
Measures to Fight Climate Change − A Role for the Law of the Sea? 43

of maritime transport to much higher levels, namely in the order of

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

Prevention of Air Pollution from Ships, id., at 7.
Art. 2 (2) KP.
UNFCCC/SBSTA/2009/8, 9 et seq.
See also UNFCCC, Ad hoc Working Group on Long-term Cooperative
Action, Report, 20 November 2009, Doc. FCC/AWGLCA/2009/14.
Protocol of 1978 Relating to the International Convention for the Pre-
vention of Pollution from Ships, 17 February 1978, 1340 UNTS 61; 17 ILM 546
Prevention of Air Pollution from Ships, <
ment/mainframe.asp?topic_id=233>, see inter alia IMO Assembly Res.
A.963(23) of 5 December 2003.
44 Bothe

tors.51 This is still in the trial phase. There is no obligatory or recom-

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

7. Conclusions

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

Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Use in
Trials, issued in 2005.
S. Schlacke, „CO2-Reduzierung in der Seeschifffahrt: nationales Recht
und Europarecht“, Vortrag anlässlich des 17. Rostocker Seerechtsgesprächs,
Universität Rostock, November 2009, forthcoming. She asks whether, and de-
nies that, such a tax would constitute an exercise of extraterritorial jurisdiction.
Measures to Fight Climate Change − A Role for the Law of the Sea? 45

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

Rayfuse/Lawrence/Gjerde (note 1), at 324 et seq.
An Agreement in Principle?
The Copenhagen Accord and the Post-2012
Climate Regime
Jutta Brunnée*

A. Introduction

Climate change may well be the major public policy challenge of our
time.1 It is planetary in scope and inter-generational in its implications.
Perhaps even more importantly, because climate change implicates vir-
tually all production and consumption processes, addressing it requires
fundamental changes to the way humans live, everywhere in the world.
Climate change, therefore, is also a complex collective action problem.
It can only be solved if all states, or at least the main greenhouse gas
emitters, cooperate. Furthermore, climate change poses difficult ques-
tions of equity, some say of global environmental justice.2 Historically,
emissions of greenhouse gases have been far greater in the industrialized
world. The emissions of industrialized countries still significantly ex-
ceed those of developing countries,3 although the emissions of some

* This paper is adapted from Jutta Brunnée, From Bali to Copenhagen:

Towards A Shared Vision for a Post-2012 Climate Regime?, forthcoming in 25
Maryland Journal of International Law (2010), and draws on Chapter 4 (Cli-
mate Change: Building a Global Legal Regime) in J. Brunnée/S. J. Toope, Le-
gitimacy and Legality in International Law: An Interactional Account (2010).
See e.g. D. A. King, Climate Change Science: Adapt, Mitigate or Ignore?,
303 Science 176 (2004).
For an extensive, interdisciplinary literature review, see S. M. Gardiner,
Ethics and Global Climate Change, 114 Ethics 555 (2004).
This is true for total, per capita and, especially, historic global emissions.
See e.g. K. Baumert/J. Pershing, Climate Data: Insights and Observations, Pew

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 47

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_3, © Springer-Verlag Berlin Heidelberg 2011
48 Brunnée

large developing countries are projected to continue to rise sharply over

the next two decades.4 By 2006, China had surpassed the United States
as the largest national emitter of greenhouse gases.5 But China’s per
capita emissions remain far lower than those of the United States or the
European Union.6 In turn, the effects of climate change are likely to
disproportionately affect developing countries, many of which are es-
pecially vulnerable to such effects.7 Industrialized countries have far
greater economic and technological capacity not only to mitigate green-
house gas emissions, but also to adapt to its consequences.8 The gulf be-
tween radically different perceptions of climate change is not easily
bridged. For many developing countries, climate politics are part of a
larger pattern of historical and economic injustices, leading them to
demand that industrialized countries bear the primary burden of com-
bating climate change. By contrast, many industrialized countries insist
on developing country participation in climate action as a matter of
pragmatic problem solving, or even “fairness.”9
It is against this backdrop that the United Nations Framework Con-
vention on Climate Change (UNFCCC) was adopted in 1992,10 and

Center on Global Climate Change, at 4 (share of global emissions), 11 (per cap-

ita emissions) and 13 (cumulative CO2 emissions 1850-2000) (2004), available at
Id., at 15-16.
See Union of Concerned Scientists, Each Country’s Share of CO2 Emis-
sions, August 2006, available at <
_and_impacts/science/each-countrys-share-of-co2.html>. See also J. Vidal/D.
Adam, China overtakes US as World’s biggest CO2 Emitter, The Guardian, 19
June 2007, available at <
The Climate Group, China’s Clean Revolution, July 2008, available at
(noting that “[i]n 2007, China reached a per capita level of 5.1 metric tons com-
pared to the European Union’s 8.6 metric tons and the USA’s 19.4 metric
Baumert/Pershing (note 3), at 17-18.
Id., at 17-20.
See J. T. Roberts/B. C. Parks, A Climate of Injustice: Global Inequality,
North-South Politics, and Climate Policy (2007).
United Nations Framework Convention on Climate Change, 9 May
1992, UN Doc. A/AC.237/18 (Part II)/Add.1, 31 ILM 849 (1992) [herein after
The Copenhagen Accord and the Post-2012 Climate Regime 49

supplemented by the Kyoto Protocol in 1997.11 However, the Kyoto

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

Kyoto Protocol to the United Nations Framework Convention on Cli-
mate Change, 10 December 1997, UN Doc. FCCC/CP/1997/L.7/add. 1, 37
ILM 22 (1998) [hereinafter Kyoto Protocol].
See UNFCCC, Decision −/CP 15, available at <
php> [hereinafter Copenhagen Accord].
The White House, A Meaningful and Unprecedented Breakthrough Here
in Copenhagen, available at <
See e.g. J. Kanter, E.U. Blames Others for ‘Great Failure’ on Climate, The
New York Times, 22 December 2009; and D. Bryson, South Africa Blasts Co-
penhagen Failure, The Associated Press, 22 December 2009, available at
50 Brunnée

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

B. CBDR and the Climate Regime

Before assessing the role of CBDR, it is important to consider another

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

UNFCCC, Report of the Conference of the Parties on its thirteenth ses-
sion, held in Bali from 3 to 15 December 2007, Decision 10/CP.13 (Action
Plan), 14 March 2008, UN Doc. FCCC/CP/2007/6/Add.1, para. 1 (a), available
at <> [here-
inafter Bali Action Plan].
The Copenhagen Accord and the Post-2012 Climate Regime 51

I. The Role of the Objective

The “ultimate objective” of the Climate Convention “and any related

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

See e.g. the routine invocation of the objective in the submissions to the
Ad-Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) by
states, intergovernmental organizations, and non-governmental observers. The
submissions made since the AWG-LCA’s first session in March 2008 are avail-
able at <
See M. Meinshausen et al., Greenhouse-gas emission targets for limiting
global warming to 2° C, 458 Nature 1158 (2009) (noting that “[m]ore than 100
countries have adopted a global warming limit of 2° C or below (relative to pre-
industrial levels as a guiding principle for mitigation efforts to reduce climate
change risks, impacts and damages)”).
R. B. Alley et al., IPCC 2007: Summary for Policymakers, in: S. Solomon
et al. (eds.), Climate Change 2007: The Physical Science Basis. Contribution of
Working Group I to the Fourth Assessment Report of the Intergovernmental
Panel on Climate Change, at 5 (2007), available at <
ment-report/ar4/wg1/ar4-wg1-spm.pdf>. A growing chorus of voices warns
that even the IPCC’s worst-case scenarios are in fact too conservative and that
global climate change is occurring at a much faster rate than expected, in part
due to various feedback effects. See Pew Center on Global Climate Change,
Key Scientific Developments since the IPCC’s Fourth Assessment Report –
Science Brief 2, June 2009, available at <
See Alley et al., id., at 2-3 (considering it to be “very likely”, i.e. more
than 90% certain, that human impact accounts for these increases).
52 Brunnée

duced by 2050 if there was to be a reasonable chance of averting dan-

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

See T. Barker et al., Technical Summary, in: B. Metz et al. (eds.), Climate
Change 2007: Mitigation. Contribution of Working Group III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change, 39, at
90 (2007), available at <
See G8 Leaders’ Declaration: Responsible Leadership for a Sustainable
Future, 9 July 2009, para. 65, available at <
_Allegato/G8_Declaration_08_07_09_final,0.pdf>; and MEF, Declaration of the
Leaders – The Major Economies Forum on Energy and Climate, 9 July 2009,
available at <
See Copenhagen Accord (note 12), para. 1.
D. Doniger, The Copenhagen Accord: A Big Step Forward, Climate Pro-
gress, 28 December 2009, available at <
Copenhagen Accord (note 12), para. 12.
See here the negotiating position of the European Union, which is con-
structed precisely in this fashion. See Commission of the European Communi-
ties, Communication from the Commission to the Council, the European Par-
liament, the European Economic and Social Committee and the Committee of
The Copenhagen Accord and the Post-2012 Climate Regime 53

analyses, suggest that robust action is urgently needed.26 To have a rea-

sonable chance of meeting the regime objective, greenhouse gas emis-
sions must peak by 2015, followed by significant medium- and long-
term emission reductions.27 By 2020, developed country emissions
would have to be cut by 25-40%; by 2050, they would have to be re-
duced by 80-95%.28 In other words, with its central concept quantified,
the Article 1 objective provides not just general direction to states’ ef-
forts, but sets a bar against which the credibility of emission reduction
commitments can be measured.

II. The Role of CBDR

The Climate Convention calls upon parties to protect the climate sys-
tem “on the basis of equity and in accordance with their common but
differentiated responsibilities and respective capabilities” (Article 3.1).
The repeated references to CBDR in the climate regime, including most
recently in the Copenhagen Accord,29 confirm that CBDR is the most
important among the principles that frame the regime. But it is one
thing to enshrine a principle in a treaty, and quite another for that
proposition have an agreed meaning.
A closer look at the UNFCCC, related sources, and relevant practice
reveals that some elements of CBDR are generally agreed upon, while
others remain contested. Judging from the submissions by states under
the auspices of the Shared Vision process launched in Bali, it seems fair

the Regions − Limiting global climate change to 2 degrees Celsius − The way
ahead for 2020 and beyond, COM (2007) 2 final, 1 October 2007, at 2 and 9,
available at <
See Meinshausen et al. (note 17), at 1160.
See K. Richardson et al., Climate Change: Global Risks, Challenges &
Decisions, Copenhagen 2009, 10-12 March (Synthesis Report), at 18-20, avail-
able at <>. And see Barker et
al. (note 20).
This is the range of required reductions that was established in the IPCC’s
2007 Report. See R. K. Pachauri/A. Reisinger (eds.), Climate Change 2007: Syn-
thesis Report. Contribution of Working Groups I, II and III to the Fourth As-
sessment Report of the Intergovernmental Panel on Climate Change, at 66-67
(2008), available at < pdf>.
See Copenhagen Accord (note 12), para. 1.
54 Brunnée

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

See UNFCCC, Views regarding the work programme of the Ad-Hoc
Working Group on Long-Term Cooperative Action under the Convention,
AWGLCA, 1st Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.1 (2008),
available at <>.
See e.g. submission of Singapore therein, at 66, Paper No. 19: Singapore – Work
Programme for the Ad-Hoc Working Group on Long-Term Cooperative Ac-
tion under the Convention (stating that “All countries, both developed and de-
veloping, have a part to play to address climate change…”).
See L. Rajamani, From Stockholm to Johannesburg: The Anatomy of
Dissonance in the International Environmental Regime, 12 Review of European
Community and International Environmental Law 23, at 31 (2003).
See UNFCCC, Fulfillment of the Bali Action Plan and components of
the agreed outcome − Note by the Chair, AWGLCA, 5th Sess., UN Doc.
FCCC/AWGLCA/2009/4 (Part II), para. 30 (2009), available at http://unfccc.
See J. Brunnée, Climate Change, Global Environmental Justice and Inter-
national Environmental Law, in: J. Ebbesson/P. Okowa (eds.), Environmental
Law and Justice in Context, 316, at 326-327 (2009).
See generally, Rajamani (note 31), at 31.
See e.g. T. Honkonen, The Principle of Common But Differentiated Re-
sponsibility in Post−2012 Climate Negotiations, 18 Review of European Com-
munity and International Environmental Law 257, at 259 (2009) (commenting
on the fact that both the UNFCCC and the Kyoto Protocol are explicitly based
on the distinction between Annex I (industrialized countries and countries with
economies in transition) and non-Annex I (developing countries)).
See e.g. Paper No. 2C: France on behalf of the EC − Enhanced na-
tional/international action on mitigation of climate change, in: UNFCCC, Ideas
and proposals on the elements contained in Paragraph 1 of the Bali Action Plan.
The Copenhagen Accord and the Post-2012 Climate Regime 55

is of particular interest for present purposes. The Shared Vision negotia-

tions reveal that parties’ understandings are evolving in this respect.
Some states reiterated their staunch opposition to differentiation
amongst developing countries. Notably, according to China,
The principle of “common but differentiated responsibilities” be-
tween developed and developing countries is the keystone of the
Convention …. Any further sub-categorization of developing coun-
tries runs against the Convention …37
Yet, the view that the CBDR principle, as reflected in the climate re-
gime, does not preclude and may even require differentiation within
groups, appear to have been gaining ground among both developed and
developing country parties.38 For example, Australia argued:
There has to be yet further differentiation of responsibilities and ca-
pabilities other than highlighting the vulnerability and lack of capac-
ity of some Parties to respond to the impacts of climate change.
There is considerable variation in the circumstances of the 191 coun-
tries in the UNFCCC. Accordingly, there can be many different ap-
proaches to differentiating and grouping countries according to such
Similarly, France submitted on behalf of the European Community

Submissions from Parties. Addendum, AWGLCA, 4th Sess., UNFCCC Doc.

FCCC/AWGLCA/2008/MISC.5/Add.1, at 14 (2008), available at <http://>.
See Paper No. 5: China – China’s Views on Enabling the Full, Effective
and Sustained Implementation of the Convention through Long-Term Coop-
erative Action Now, Up To and Beyond 2012, in: UNFCCC, Ideas and pro-
posals on the elements contained in paragraph 1 of the Bali Action Plan. Sub-
missions from Parties, AWGLCA, 4th Sess., UNFCCC Doc. FCCC/
AGLCA/2008/MISC.5, at 34 (2008), available at <
But see L. Rajamani, Differentiation in the Post-2012 Climate Regime, 4
Policy Quarterly 48, at 49 (2008) (noting that “most developing countries” are
opposed to “efforts to differentiate between them”).
Australia – Initial Views on A Long-Term Global Goal for Emission Re-
ductions, in: UNFCCC, Views Regarding the Work Programme of the Ad-Hoc
Working Group on Long-Term Cooperative Action under the Convention.
Submissions from Parties. Addendum, AWGLCA, 1st Sess., UNFCCC Doc.
FCCC/AWGLCA/2008/MISC.1/Add.2, at 7-8 (2008), available at <http://>.
56 Brunnée

… a key issue to explore … is what the principle of CBDR and re-

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

Paper No. 1A: France on behalf of the EC – Mitigation, including tech-
nology and finance, in: UNFCCC, Ideas and proposals on the elements con-
tained in paragraph 1 of the Bali Action Plan. Submissions from Parties,
AWGLCA, 3rd Sess., UNFCCC Doc. FCCC/AWGLCA/2008/MISC.2, at 5
(2008), available at
Paper No. 2: Bangladesh – Bangladesh Submission on Bali Action Plan
Regarding Work Programme of the Ad-Hoc Working Group on Long-Term
Cooperative Action Under the Convention, in: UN Doc. FCCC/AWGLCA/2
008/MISC.1 (note 30), at 10.
Paper No. 6: Egypt − Egyptian Submission for Ad-Hoc Working Group
on Long-Term Cooperative Action, id., at 23.
Paper No. 10: Maldives on behalf of the Least Developed Countries −
Bali Action Plan Regarding Work Programme of the Ad-Hoc Working Group,
id., at 32.
The Copenhagen Accord and the Post-2012 Climate Regime 57

ability of the Bush Administration to extricate the United States from

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

See also Honkonen (note 35), at 265.
Anger at US climate retreat, BBC News Service, 28 March 2001, available
at <>.
Indeed, rarely have states as openly expressed their resentment of US cli-
mate policy, as did Papua New Guinea’s ambassador for climate change when,
reacting to the outgoing Bush Administration’s initial refusal to support the Bali
Action Plan on long-term cooperative action, he stated: “[I]f for some reason
you’re not willing to lead, leave it to the rest of us. Please get out of the way.”
See A. C. Revkin, Issuing a Bold Challenge to the U.S. Over Climate, The New
York Times, 22 January 2008 (quoting Kevin Conrad).
See e.g. the compilation of party submissions in UNFCCC, Ideas and
Proposals on paragraph 1 of the Bali Action Plan, Revised note by the Chair,
AWGLCA, 4th Sess. UN Doc. FCCC/AWGLCA/2008/16/Rev.1, para. 22 (h)
(2009), available at <
01.pdf> (citing Australia, New Zealand, the Russian Federation, and the United
States for the notion that “[n]ew sight on the differentiation among Parties is
required (…), based on recent advances in scientific knowledge and changing
social and economic situation in the world …”).
58 Brunnée

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

See D. Bodansky, The United Nations Framework Convention on Cli-
mate Change: A Commentary, 18 Yale Journal of international Law 451, at 501-
505 (1993). And see e.g. Paper No. 4: China – China’s Comments on the
Implementation of the Bali Action Plan, in UN Doc. FCCC/ AWGLCA/
2008/MISC.1 (note 30), at 18: “In developing … [a shared] vision [for long-
term cooperative action], it is important to take into account the principles of
equity and common but differentiated responsibilities…” See also Paper No.
3C: India – Government of India Submission to UNFCCC on Long Term Co-
operative Action, in UN Doc. FCCC/ AWGLCA/2008/MISC.5/Add.1 (note
36), at 32.
This point has not escaped the attention of the new US administration.
See G. Kessler, Clinton, Indian Minister Clash over Emissions Reduction Pact,
The Washington Post, 20 July 2009 (citing Secretary of State, Hillary Rodham
Clinton as stating that she “completely” understood Indian arguments about
per capita emissions, but noting that the argument “loses force” as developing
countries become the major emitters).
The Copenhagen Accord and the Post-2012 Climate Regime 59

developing country emitters from emissions-related commitments.50

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

C. The Copenhagen Accord


In order for a post-2012 regime to respect the CBDR principle, devel-

oped countries must arguably take the lead on emission reductions
through credible mid-term targets, as well as take on commitments that
reflect their greater capacity and share of emissions. In turn, major de-
veloping countries may initially be required to commit to mitigation-
related actions, but not to actual reduction targets. That said, given their
rapidly rising share of global emissions, CBDR is compatible with, and
even demands, credible reductions by the major developing country

See L. Rajamani, The Principle of Common but Differentiated Responsi-
bility and the Balance of Commitments under the Climate Regime, 9 Review of
European Community and International Environmental Law 120, at 130
See UNFCCC (note 10), Article 4.2; and Kyoto Protocol (note 11), Arti-
cle 3.
See also Commission of the European Communities, Communication
from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions – Towards
a comprehensive climate change agreement in Copenhagen, COM (2009) 39 fi-
nal, at 5 (2009), available at < 0039:FIN:EN:PDF> (submitting that the “accepted
Kyoto base year, 1990, should be used as the historical reference point” for fur-
ther emission reductions by developed countries after 2012).
See infra, notes 61-71 and accompanying text.
60 Brunnée

emitters, at least in the longer term. Finally, differentiation according to

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

See Bali Action Plan (note 15), preamble.
See UNFCCC, Report of the Ad-Hoc Working Group on Further
Commitments for Annex I parties under the Kyoto Protocol on its resumed
fourth session held in Bali, 3-15 December 2007 (Part III: Review of work pro-
gramme, methods of work and schedule of future sessions), UN Doc.
FCCC/KP/AWG/2007/5, para. 16 (2008), available at <
See Commission of the European Communities (note 45). And see The
European Union thinks it can be a model for the world on climate change: Can
it?, The Economist, 15 March 2007.
E. Rosenthal/N. MacFarquar, Industrialized Nations Unveil Plans to
Rein in Emissions, The New York Times, 20 November 2009.
J. M. Broder, Obama to go to Copenhagen with Emissions Target, The
New York Times, 25 November 2009.
The Copenhagen Accord and the Post-2012 Climate Regime 61

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

E. Wong/K. Bradsher, China Joins U.S. in Pledge of Hard Targets on
Emissions, The New York Times, 26 November 2009.
R. Lakshmi, Moves by U.S., China induce India to do its bit on climate,
The Washington Post, 2 December 2009.
For industrialized states, the Bali Action Plan contemplates “nationally
appropriate mitigation commitments and actions, including quantified emission
limitation and reduction objectives,” whereas for developing countries it envis-
ages only nationally appropriate “mitigation actions.” See Bali Action Plan (no-
te 15), paras. 1 (b)(i) & (ii).
See e.g. Proposal by the Alliance of Small Island States (AOSIS) for the
Survival of the Kyoto Protocol and a Copenhagen Protocol to Enhance the Im-
plementation of the United Nations Framework Convention on Climate
Change, in: UNFCCC, Ideas and proposals on the elements contained in para-
graph 1 of the Bali Action Plan, AWGLCA, 8th Sess., UNFCCC Doc.
FCCC/AWGLCA/2009/MISC.8, at 15 (2009), available at <
resource/docs/2009/awglca8/eng/misc08.pdf>. And see, generally, L. Rajamani,
The Copenhagen Agreed Outcome: Form, Shape & Influence, Centre for Pol-
icy Research (CPR) Climate Brief, at 2 (2009), available at <http://www. cprin>.
See e.g. “Kyoto Principles” crucial in climate talks: China, Reuters, 14
November 2009, available at <
NV20091114>. And see Big developing countries form climate change front,
Reuters, November 29, 2009, available at <
62 Brunnée

wished to see Kyoto replaced by a single, comprehensive instrument

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

L. Rajamani, The “Cloud” Over the Climate Negotiations: From Bang-
kok to Copenhagen and Beyond, CPR Climate Brief, at 2-3 (2009), available at
pdf>; and D. Bodansky, The Copenhagen Climate Change Conference: A Post-
Mortem, 12 February 2010, at 3, available at <
See Bali Action Plan (note 15), paras. 1 (b)(i) & (ii). And see C. Spence et
al., Great Expectations: Understanding Bali and the Climate Change Negotiati-
on Process, 17 Review of European Community and International Law 142, at
150 (2008) (commenting on the subtle, but significant shift in the language of
the Action Plan).
See Rajamani (note 64), at 2.
See J. Vidal, Copenhagen climate summit in disarray after ‘Danish text’
leak, The Guardian, 8 December 2009, available at <>.
The Copenhagen Accord and the Post-2012 Climate Regime 63

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

See D. Bodansky, The Illegitimacy of “Legitimacy”, Opinio Juris, 17 De-
cember 2009, available at <
See Vidal (note 67).
Reportedly, an earlier draft of the document was unacceptable to develop-
ing countries because of a preambular statement affirming parties’ “firm resolve
to adopt one or more legal instruments”, thereby acknowledging the possible
demise of the Kyoto Protocol. See J. Watts, What was agreed at Copenhagen –
and what was left out, The Guardian, December 19, 2009.
Copenhagen Accord (note 12), paras. 4 and 5.
Id., para. 8.
See J. Drexhage, Copenhagen: A memorable time for all the wrong rea-
sons?, International Institute for Sustainable Development, at 2 (2009); available
at < pdf>.
64 Brunnée

gotiations, it was in fact a relatively small number of developing coun-

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

See Drexhage, id.; Bodansky (note 67); D. Bodansky, Sleepless in Copen-
hagen, Opinio Juris, 19 December 2009, available at <http://opiniojuris.
org/2009/12/19/sleepless-in-copenhagen-2/>; Doniger (note 23).
See Drexhage, id.
See Bodansky (note 64) (citing involvement by 29 parties, “including the
United States, the European Union …, China, India, Brazil, South Africa, the
UK, France, Germany, Denmark, Australia, Canada, Japan, Russia, Grenada
(on behalf of AOSIS), Ethiopia (on behalf of the African Union), Lesotho (for
the least developed countries), Papua New Guinea (for the Coalition of Rainfo-
rest Countries), Saudi Arabia (for OPEC countries), Sudan (for the G-77), Al-
geria, Bangladesh, Colombia, Gabon, Indonesia, the Maldives, the Republic of
Korea and Mexico”).
See Doniger (note 23) (observing that such a development would have
been unthinkable only a year earlier, and that China and India would not have
agreed to the accord had it been legally binding).
See Copenhagen Accord (note 12), preamble and para. 1.
Id., paras. 4 and 5.
The Copenhagen Accord and the Post-2012 Climate Regime 65

funding commitments by developed countries, the accord envisages a

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

II. The Convention Objective

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

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

counting for over 80% of global greenhouse gas emissions.85 However,

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

See US Climate Action Network, Who’s On Board With The Copenha-
gen Accord, available at <
gen-accord-commitments> (providing an overview on national submissions in
relation to the Copenhagen Accord).
See K. Levin/R. Bradley, Comparability of Annex I Emission Reduction
Pledges, World Resources Institute Working Paper, at 2 (2009), available at
The “Information provided by Annex I Parties relating to Appendix I of
the Copenhagen Accord” (concerning their quantified economy-wide emissi-
ons targets for 2020) and the Information provided by non-Annex I Parties re-
lating to Appendix II of the Copenhagen Accord (concerning nationally ap-
propriate mitigation actions) can be accessed at UNFCCC, Information provi-
ded by Parties to the Convention relating to the Copenhagen Accord, at
<>. For a helpful overview, see also US
Climate Action Network (note 85).
See N. Höhne et al., Copenhagen Climate Deal – How to Close the Gap,
Briefing Paper, Ecofys & Climate Analytics, at 6 (2009), available at <http://>.
See G8 Leaders’ Declaration (note 21).
See A. Doyle, Reuters, Major economies consider halving world CO2, 25
June 2009, available at <
20090625> (reporting a draft text according to which the MEF supported “an
The Copenhagen Accord and the Post-2012 Climate Regime 67

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

D. Conclusions

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

aspirational goal of reducing global emissions by 50 percent by 2050, with de-

veloped countries reducing emissions by at least 80 percent by 2050” and de-
clared that developed states would “undertake”).
See P. Wintour, Developing countries urge G8 to impose 40% emissions
cut by 2020, The Guardian, 10 July 2009.
See D. Biello, Draft text of new “Copenhagen Accord”, Scientific Ameri-
can – Observations, 18 December 2009, available at <http://www.scientific
See C. Holly, Disappointed Climate Delegates “Take Note” Of Vague
Greenhouse Accord, The Energy Daily, 19 December 2009, available at <http://>; and Drexhage
(note 73), at 3.
Bodansky (note 64), at 5.
See Bryson (note 3); and Pew Center on Global Climate Change, Sum-
mary of COP 15 and CMP 5 prepared by the Pew Center on Global Climate
68 Brunnée

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

Change (2009), available at <

A small number of parties, currently comprising Cuba, Ecuador, Kuwait
and Nauru specifically indicated that they will not associate themselves with the
accord. See UNFCCC (note 87); and US Climate Action Network (note 85).
See P. Széll, Decision Making under Multilateral Environmental, 26 Envi-
ronmental Policy and Law 210 (1991).
The Copenhagen Accord and the Post-2012 Climate Regime 69

convention parties to reach agreement on this voting rule.99 The current

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

See Drexhage (note 73), at 2. And see International Institute for Sustai-
nable Development (IISD), Summary of the Copenhagen Climate Change Con-
ference: 7-19 December 2009, Earth Negotiations Bulletin Vol.12 No. 459, at 4
(2009), available at <>.
See A. Doyle, Analysis − G20, U.N. vote reform could help climate deal,
Reuters, 12 February 2010, available at <
(commenting on the voting system).
See UNFCCC, Draft Decision −/CP.15, Outcome of the Ad-Hoc Work-
ing Group on Long-Term Cooperative Action under the Convention, para. 1,
available at <
a_auv.pdf>; and UNFCCC, Draft Decision −/CMP.5, Outcome of the Ad-Hoc
Working Group on Further Commitments for Annex I Parties under the Kyoto
Protocol, para. 2, available at < cop_15/appli
See Copenhagen Accord (note 12), preamble.
70 Brunnée

the UNFCCC Secretariat, China and India reiterated the mitigation

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

See China, Letter including autonomous domestic mitigation actions (28
January 2010); and India, Letter including India’s domestic mitigation actions
(30 January 2010), both at <>.
See US Climate Action Network (note 85).
See e.g. UK’s Brown says climate change agreement possible, The Times
of India, January 4, 2010.
See e.g. Bodansky (note 64), at 10.
The Copenhagen Accord and the Post-2012 Climate Regime 71

ments that are legitimate and capable of generating a sense of commit-

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

See supra notes 23-24 and accompanying text.
It is perhaps for this reason that U.S. President Obama has described the
Copenhagen Accord as a “first step.” See The White House (note 13). See also
UN says Copenhagen deal “a start”, BBC News, 19 December 2009, available
at <>.
See The White House (note 13). And see e.g. UN says Copenhagen deal
“a start”, BBC News, 19 December 2009, available at <
72 Brunnée

fleshed out the meaning of the regime objective and their interventions
under the auspices of the Action Plan reveal concerted efforts to main-
tain or shift, as the case may be, the meaning of the CBDR principle.
The Copenhagen Accord may be best understood not as a makeshift
solution to climate change but as a barometer for the evolving norma-
tive understandings in the climate regime.
The Reluctance of the United States to Ratify
Fred L. Morrison1

In December 2009 we witnessed the failure of states at the climate con-

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

The author wishes to thank Joshua Fisher, a third year student at the Uni-
versity of Minnesota Law School, for his assistance in the preparation of this
UN Doc. FCCC/2009/L.7.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 73

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_4, © Springer-Verlag Berlin Heidelberg 2011
74 Morrison

agreements. Several of the agreements under discussion in this volume

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

1833 UNTS 3 (1982).
1637 UNTS 57, 28 ILM 649 (1989).
2302 UNTS 148, 37 ILM 22 (1998).
J. Jackson/J-V. Louis/M. Matsushita (eds.), National Constitutions and
International Economic Rules, at 1-2 (1984).
E. T. Swaine, Unsigning, 55 Stanford Law Review 2061 (2003).
999 UNTS 171, 6 ILM 383 (1967).
F. L. Morrison, Gustav III and the Masked Ball: Different Approaches to
Freedom of Expression, in: De Lege, Årsbok Juridiska Fakultaten Uppsala, 129,
at 140-143 (2009).
The Reluctance of the United States to Ratify Treaties 75

ing conference. It allows political leaders the opportunity to reexamine

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

A. The Dual Nature of Ratification

Ratification of treaties has two aspects, international and domestic. The

international aspect leads to the creation of a binding international
norm between the parties: pacta sunt servanda. The international law
governing this aspect is now primarily articulated in the United Nations
Convention on the Law of Treaties,10 commonly known as the Vienna
Convention, although customary law continues to govern in some cir-
cumstances. Indeed, the Vienna Convention itself is one of the treaties
that the United States has not ratified. The United States has neverthe-

1155 UNTS 331 (1969).
76 Morrison

less relied heavily on its provisions, considering most of them to be a

restatement of the governing customary international law.
The international aspect is reasonably straightforward. Under the Vi-
enna Convention, ratification takes the form of the exchange or deposit
of an instrument of ratification prepared by or under the authority of a
head of state. Article 46 of the Convention provides:
1. A state may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and
in good faith.11
Thus, for the purposes of international law, a foreign state would nor-
mally be entitled to rely upon an assurance from another state that con-
stitutional requirements have been met. Its only obligation is to act in
good faith; it is not required to review the constitutional law of its
counterparty in any great detail. This provision may produce some
complexity, for it creates the possibility that even though a treaty is val-
idly ratified as a matter of international law it may be void as a matter
of domestic law, because mandatory constitutional provisions of that
state have been violated. In such situations, a government might not be
able to carry out the mandates of the treaty, but might also be in breach
of its international obligations for failing to do so.
The domestic aspect of ratification lies within the constitutional struc-
ture of each nation state. It may take the form of specific provisions of a
constitutional document or be in the form of significant unwritten con-
stitutional norms and customs. This domestic aspect has two different
facets. One is identification of the individuals or bodies whose approval
is necessary before ratification can take place. The other is determina-
tion of the effect that the treaty will have in the domestic law of that
state. Is it directly effective in domestic law or does some implementa-
tion legislation need to be adopted?
The domestic aspects of ratification can be much more complex than
the international ones. They depend on the particular constitutional ar-
rangements of the country in question. The rules may be relatively
simple and straightforward or formidably complex. As article 46 of the

Id., Art. 46.
The Reluctance of the United States to Ratify Treaties 77

Vienna Convention clearly provides, the foreign international lawyer is

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

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

B. The Legal and Political Constraints on Treaty

Ratification in the United States System

The United States Constitution vests the authority to ratify treaties in

the President of the United States, but he may do so only with the ad-
vice and consent of two-thirds of the Senate.15 A treaty, once ratified, is

France, Constitution of the [Fifth] French Republic, Art. 53.
Germany, Basic Law, Art. 59, para. 2.
France, Constitution of the [Fifth] French Republic, Art. 54.
US Constitution, Art. II, sec. 2., para. 2.
The Reluctance of the United States to Ratify Treaties 79

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

Id., Art. VI, para. 2.
United States v. Alvarez-Machain, 504 US 655 (1992).
United States Senate Manual. The “hold” is an informal mechanism, en-
forced by custom, not rule.
80 Morrison

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

United States Senate, Rules of the Senate, rule XXII:2.
The Reluctance of the United States to Ratify Treaties 81

C. Alternatives to a Treaty for Domestic Enforcement

The United States must find alternatives to the ratification of a formal

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

See supra, text to note 10.
82 Morrison

viet government, and accepted in exchange all Russian-held property in

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

315 US 203 (1942).
A. E. Sutherland, The Bricker Amendment, Executive Agreements and
Imported Potatoes, 67 Harvard Law Review 281 (1953).
1 USC 112b.
The Reluctance of the United States to Ratify Treaties 83

The scope of the President’s executive agreement authority was tested

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

453 US 654 (1981).
Id., at 680.
O. Hathaway, Presidential Power over International Law: Restoring the
Balance, 119 Yale Law Journal 140 (2009).
84 Morrison

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

19 USC § 3501 and following.
The Reluctance of the United States to Ratify Treaties 85

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

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

Internationally there is no binding obligation, so the United States is

not a party to the Basel Convention. It remains, however, deeply in-
volved in its functioning and its support of the goals of the convention
are essential to its success. Domestically, adoption of such a regulation
is through ordinary agency rule making. The substantive authority to
regulate is granted in this case by RCRA and the procedures for adop-
tion of the rules are set out in the Administrative Procedure Act.33 That
statute requires that the agency adopting the rules publish them, receive
comments and respond to them, and then issue a final regulation. The
rule is then subject to judicial challenge as to whether the particular ac-
tions have been authorized by the basic statute and whether the re-
quired procedures have been followed. A rule so adopted is subject to
amendment or appeal by future administrations, following a similar
Such an approach is being considered as an alternative to proposed new
legislation to control the emission of greenhouse gases, if Congress fails
to enact legislation. The Environmental Protection Agency has begun
the process necessary to issue rules to limit the emission of carbon diox-
ide (CO2) into the atmosphere.34
The administrative rule-making process contains its own limitations.
The agency can only make regulations within the scope of the statutory
authority. Thus it was important to determine that CO2 is a “pollutant”
because regulation of pollutants is within its competence. Under this
approach the EPA could probably establish “caps” or limits on emis-
sions under its general authority to limit pollution, but it may not have
the breadth of authority to make all of the additional rules necessary to
create a fully functioning system of trading energy credits.
Viewed from an international perspective, the problem with these do-
mestic approaches is that they do not bind the United States to abide by
an international norm. There must be a common international under-
standing of goals and objectives, without a formal legally-binding in-
ternational agreement. While an international instrument with legal

5 USC § 551 and following.
During the Bush administration the EPA had resisted adopting such regu-
lations, claiming that CO2 was not a pollutant. Several states sued the federal
government, seeking to require it to issue such regulations. The Supreme Court
ruled that the EPA had the authority and also had a duty to consider adoption
of regulations. Massachusetts v. Environmental Protection Agency, 549 US 497
The Reluctance of the United States to Ratify Treaties 87

force would be preferable to most international lawyers, this approach

may be the best that can be obtained.

D. Alternatives to a Treaty for International Commitment

Such domestic law approaches can be accompanied by non-binding in-

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

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

E. Conclusions

Technically the alternative approaches to the internal implementation of

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

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

A. Introduction

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

R. Wolfrum, Die Internationalisierung staatsfreier Räume (1984).
The following thoughts on the issue of global commons were initially
presented at the “Law of the Sea in Dialogue” on 5 December 2009 in Heidel-
berg, on the occasion of Professor Rüdiger Wolfrum’s 68th birthday. The au-
thor is very grateful to Mr. Gregor Novak, research assistant, for his extremely
valuable assistance in the elaboration of this paper.
A. Pardo, UN Doc. A/C.1/PV.1515, 1 November 1967, at 6.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 91

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_5, © Springer-Verlag Berlin Heidelberg 2011
92 Hafner

common heritage of mankind”.4 Such a regime was intended to generate

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

B. International Commons Regimes

I. Spitsbergen

Originally, the Spitsbergen archipelago was generally considered extra

commercium, and pursuant to the draft treaty of 191210 it was to remain
terra nullius, subject to an internationalized administration.11 However,

United Nations, The Law of the Sea: Concept of the Common Heritage
of Mankind: Legislative History of Articles 131-150 and 311(6) of the United
Nations Convention on the Law of the Sea (1996).
J. B. Scott (ed.), Hugo Grotius’ The Freedom of the Seas, Chapter I, at 7
See infra under point B. IV.
See infra under point B. III.
See infra under point B. II.
See infra under point B. I.
Wolfrum (note 1), at 24.
R. N. Rudmose Brown, Spitsbergen, terra nullius, 7 The Geographical
Review 311-321 (1919).
The Myth of the Commons: Divide or Perish 93

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

II. Antarctica

While Antarctica had a similar status to that of Spitsbergen until the

First World War, it developed in a different direction thereafter. Its re-
gime was established primarily by the Antarctic Treaty,17 which estab-
lishes the freedom of scientific investigation in Antarctica as well as co-
operation towards that end in article II. According to article IV of the
Antarctic Treaty, the Antarctic regime merely freezes the asserted rights
of or claims to Antarctic territory and thus does not permanently inter-
nationalize the area. Moreover, Antarctica is subject to a regime of strict
control: the Protocol on Environmental Protection to the Antarctic
Treaty18 provides in article 2 that the Parties commit themselves to the
comprehensive protection of the Antarctic environment and dependent

Treaty Concerning the Archipelago of Spitsbergen, 9 February 1920,
League of Nations Treaty Series, Vol. 2.
Wolfrum (note 1).
G. Ulfstein, The Svalbard Treaty: From Terra Nullius to Norwegian Sov-
ereignty (1995).
Article 2, supra note 12.
Article 3, supra note 12.
The Antarctic Treaty, 1 December 1959, 402 UNTS 71.
Protocol on Environmental Protection to the Antarctic Treaty, 4 October
1991, 30 ILM 1461 (1991).
94 Hafner

and associated ecosystems and designates Antarctica as a natural re-

serve, devoted to peace and science. Furthermore, the Antarctic Treaty
and Protocol provide for national inspectors in articles VII and 13, re-
spectively. The Convention for the Conservation of Antarctic Seals19
provides for a procedure for the Contracting Parties to set up an “effec-
tive system of control, including inspection over the implementation of
the provisions of the Convention”, which has not yet been triggered.

III. Frequencies and Satellites

Initially, the distribution of frequencies was governed by the “first

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

Convention for the Conservation of Antarctic seals, 1 June 1972, 1080
UNTS 175.
K.-U. Schrogl, Questions relating to the Character and Utilization of the
Geostationary Orbit, in: K.-U. Schrogl/M. Benkö (eds.), International Space
Law in the making. Current Issues in the UN Committee on the Peaceful Uses
of Outer Space, 151-184 (1993).
Bogotá Declaration: First Meeting of Equatorial Countries, 3 December
1976, 15 RBDI 48 (1980).
Convention on International Civil Aviation, 7 December 1944, 15 UNTS
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and other Celestial Bodies, 27
January 1967, 610 UNTS 205.
S. Hobe, Geostationary Orbit, Max Planck Encyclopedia of Public Inter-
national Law (2009).
The Myth of the Commons: Divide or Perish 95

subject to certain conditions by the Outer Space Treaty as well as the

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

Convention on Registration of Objects Launched into Outer Space, 14
January 1975, 1023 UNTS 15.
Convention on International Liability for Damage Caused by Space Ob-
jects, 29 March 1972, 961 UNTS 187.
Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, 18 December 1979, 1363 UNTS 3.
Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729
UNTS 161.
The Radio Regulations, Edition of 2008, contain the complete texts of the
Radio Regulations as adopted by the World Radiocommunication Conference
in 1995 (WRC-95) and subsequently revised and adopted in 1997 (WRC-97),
2000 (WRC-2000), 2003 (WRC-03) and 2007 (WRC-07), including all Appen-
dices, Resolutions, Recommendations and ITU-R Recommendations incorpo-
rated by reference, available at <>.
Constitution and Convention of the International Telecommunication
Union, 22 December 1992, 1825 UNTS 143.
Hobe (note 24).
96 Hafner

IV. Outer Space

Outer space is governed by certain fundamental principles governing

space activities set out in the Outer Space Treaty, namely that outer
space shall be the province of all mankind, that it shall be used for the
benefit and in the interests of all countries, that exploration and use
shall not allow discrimination of any kind and shall be based on equal-
ity and international law,32 and that outer space shall not by any means
be subject to national appropriation by claim of national sovereignty.33
Outer Space activities are to be carried out in accordance with interna-
tional law and in the interest of maintaining international peace and se-
curity. The legal regime of outer space also provides for free access to all
areas of celestial bodies, the freedom of scientific investigation and the
facilitation and encouragement of international co-operation.34 How-
ever, that this freedom of access is likely to pose problems is already re-
flected in the ongoing work of the legal subcommittee of

V. Common Features

Although different structures have been applied to these global com-

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

Article I, supra note 23.
Article II, supra note 23.
See supra note 23.
See infra note 69.
E.Ostrom et al., The Drama of the Commons, 455 (2002); see below un-
der Point D.
The Myth of the Commons: Divide or Perish 97

successful commons regime. These goals include in particular the sus-

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

C. The Tragedy of the Commons

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

Id., at 461 et seq.; See below under Point 4.
William Forster Lloyd, Two lectures on the checks to population, 30
Garrett Hardin, The Tragedy of the Commons, 162 Science 1243-1248
98 Hafner

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

Commons structures can exist on a national level as well. The 2009 Nobel
Prize winner in Economic Sciences, Elinor Ostrom, studied such commons
structures governing meadows and forests in Törbel and other Swiss villages,
zanjera institutions of the Philippines, Spanish huertas and villages in Japan.
These structures are commonly managed areas which are lasting and sustainable
due to effective collective arrangements and do not necessarily rely on State en-
forcement, see E. Ostrom, Governing the Commons: The Evolution of Institu-
tions for Collective Action (1990).
The Myth of the Commons: Divide or Perish 99

D. Requirements for an Effective System According to


According to Ostrom et al., seven general conditions are typically met

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

E. Examining Commons Regimes Governed by

International Law

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

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

I. Low-Cost Enforcement of Rules and Monitoring the Resource

and User’s Compliance with Rules

As to the low-cost enforcement of rules, Ostrom et al. emphasize that

“successful institutions are widely recognized to depend on the ability
of users to devise rules for access to and maintenance of a common-
pool resource and to sanction rule-breaching behavior”. Moreover, the
design characteristics should be achieved at reasonable cost and re-
source users should have an incentive to help provide for the costs.42
That the question of enforcement raises major concerns was illustrated
in the course of the Review Conference43 relating to the Straddling Fish
Stocks Agreement44 in 2006 since, in particular, the abstention of devel-
oping States from this treaty was explained by the monitoring and en-
forcement mechanism provided by it, which even in doctrine has
aroused certain concerns in relation to the third party rule under the
Vienna Convention on the Law of Treaties of 1969 (VCLT).45 Quite a
number of other examples could be cited, be it in the field of frequen-
cies, where jamming was used to curtail the undesired effect of the free-
dom of the air,46 be it remote sensing, be it in outer space activities or
even in the protection of the environment.
Similarly, it has been argued that, concerning Antarctica, the 1991 Pro-
tocol47 creates no management institution with distinctive powers com-
parable even to those of the International Seabed Authority (ISA). The
Committee on Environmental Protection, within the framework of the

Ostrom et al. (note 36), at 462.
Report of the Review Conference on the Agreement for the Implementa-
tion 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 Strad-
dling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.210/2006/15, 5
July 2006, at 9 et seq.
1995 Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks, 4 August 1995, 2167 UNTS 3.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS
G. A. Codding, Jamming and the Protection of Frequency Assignments,
49 American Journal of International Law 384-388 (1955).
See supra note 18.
The Myth of the Commons: Divide or Perish 101

Antarctic Treaty Consultative Meetings, performs only the usual super-

visory and regulatory functions associated with other environmental
treaty institutions. Thus, application of the Treaty’s unanimity require-
ment to decision-making by the parties leaves Antarctica without an ef-
fective system of law enforcement.48
Apart from the abovementioned patchy allocation regime, the enforce-
ment of Radio Regulations suffers from a similar weakness: the detec-
tion of an infringement is unproblematic, while the party responsible is
difficult to ascertain. But this example provides an additional element
contributing to the inefficiency of international mechanisms: this field
of activity carried out in particular by means of satellites has in recent
times undergone a substantial change through privatization which in-
troduced a multitude of private actors that are difficult to control or, at
least, more difficult than if only States were involved in these activities.
Other outer space activities on celestial bodies such as Mars and the
Earth’s Moon will certainly create similar problems.49
A major difficulty results from the fact that the possible perpetrators
are mostly unwilling or unable to monitor and sanction breaches. Fur-
thermore, only a few attempts have been made to endow different ac-
tors, such as independent experts of even NGOs, with such function
and competence, in particular in the field of the protection of the envi-
ronment and human rights.50
Even the regional or sub-regional RFMOs are not able to establish the
necessary mechanisms, as the traditional overfishing in the areas super-
vised by them convincingly proves.51 For these reasons it is not surpris-
ing that States tended to advance the approach of subjecting maritime
areas and other international areas to a national jurisdiction, as already
in 1945 with the claim to an extended protection zone or, even earlier,
by placing Spitsbergen under the “full and absolute sovereignty of Nor-

P. Birnie/A. Boyle/C. Redgewell, International Law and the Environ-
ment, 96 (3rd ed. 2009).
V. Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and
Mineral Resources, 73 et seq. (2009).
P. Birnie/A. Boyle/C. Redgewell (note 48), at 89-91.
See Report of the Review Conference on the Agreement for the Imple-
mentation of the Provisions of the United Nations Convention on the Law of
the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks; UN Doc.
A/CONF.210/2006/15, para. 95.
102 Hafner

way”.52 In this sense a quotation from Adam Smith comes to mind:

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

See supra under point B. I.
A. Smith, An Inquiry into the Nature and Causes of the Wealth of Na-
tions, Book One, Chapter III (1776).
T. Paterson, EU hunts “pirate” fishing fleet allowed to sail by Germany,
The Independent, 22 March 2006, available at <>. See
also Report of the Review Conference, supra note 51, paras. 76 et seq.
Report of the Secretary General to the United National General Assem-
bly, Oceans and the law of the sea, UN Doc. A/64/66/Add. 1, 25 November
2009, para. 285.
The Myth of the Commons: Divide or Perish 103

international law provides only limited powers to pursue such breaches

of rules.
These examples demonstrate that the present structure of international
law based on the sovereign equality of States is unable to provide an ef-
fective low-cost system of law enforcement.

II. Addressing Negative Externalities for Other Resources

In the view of Ostrom et al.,

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

Ostrom et al. (note 36), at 463.
Id., at 465.
United Nations Convention on the Law of the Sea, 10 December 1982,
1833 UNTS 396.
Assembly of the International Seabed Authority, Summary presentations
on polymetallic massive sulphide deposits and cobalt-rich ferromanganese
crusts, ISBA/8/A/1, 9 May 2002.
104 Hafner

III. Reconciling Conflicting Values and Interests

What presently characterizes general international law applies also to

resource management regimes. In this sense Ostrom et al. observe a re-
lated challenge due to the presence of conflicting values and interests
among appropriators, and add that
“[t]his challenge, ubiquitous when policy decisions are being made,
is most severe when groups are economically and culturally hetero-
geneous, when members are heterogeneous in their relationships to
the resource (e.g., up-stream and down-steam water users), and
when members differ in their degree of dependence on the re-
The legislative history of UNCLOS clearly confirms this view with re-
gard to the exploration and exploitation of the Area as different concep-
tions were pursued by the participants, reaching from centralized sys-
tems under the Tanzanian proposal to the liberal systems which finally
prevailed. With respect to the concept of the common heritage of man-
kind, Pinto even states that
“[s]uch a belief could only have been based on the grave misunder-
standing that law-making at the interstate level was a mere matter of
pluralities. Little thought seems to have been given to the complexi-
ties of the process through which compliance with international law
is to be achieved. Little thought seems to have been given to the cen-
tral fact of that process, a fact which all had surely learned from ex-
perience: disparities of power. … A remarkable aspect of the adop-
tion of the Implementing Agreement which in effect destroyed the
myth and modified part XI, was the welcome accorded to it by the
developing countries whose statist and dirigistic positions had been
reflected in many provisions of part XI as it stood originally”.61
The distribution of frequencies stemming from space objects are like-
wise subject to different objectives that complicate appropriate solu-
tions. On the part of the ITU, the use of a specific frequency band or
orbital position is preceded by coordination, authorization and licens-

Ostrom et al. (note 36), at 464.
M. C. W. Pinto, Common Heritage of Mankind: From Metaphor to
Myth, and the Consequences of Constructive Ambiguity, in: J. Makarczyk
(ed.), Theory of International Law at the Threshold of the 21st Century, 249 et
seq. (1996).
The Myth of the Commons: Divide or Perish 105

ing, as agreed among administrations.62 But it is questionable whether

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

R. S. Jakhu/V. R. Serrano, International Regulation of Radio Frequencies
for Space services, in: Legal Framework for commercial satellite communica-
tions, Proceedings of the Project 2001 – Workshop on Telecommunications
F. Lyall, Deriving More “Common Benefit” from Space Telecommunica-
tions, in: Proceedings of the Forty-Eighth Colloquium on the Law of Outer
Space: 17-21 October 2005, Fukuoka, Japan, Vol. 48, 461-470 (2006); Report of
the Legal Subcommittee on its forty-sixth session, held in Vienna from 26
March to 5 April 2007, A/AC.105/891, para. 112.
S. Hobe, Adequacy of the Current Legal and Regulatory Framework Re-
lating to the Extraction and Appropriation of Natural Resources in Outer
Space, 32 Annals of Air and Space Law 115-130 (2007).
106 Hafner

of priority and geographical inequity which have proved in practice to

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

IV. Managing Resources with Imperfect Knowledge

According to Ostrom et al., a major issue of effective resource man-

agement is the availability of sufficient information, since uncertainty
based on ignorance needs flexible institutions which adjust to better in-
formation, enable the quick setting of new limits of resource use ac-
cording to the resource stocks, and possess low-cost conflict resolution
It is interesting to note that commons use regimes are particularly ap-
plied to resources that have not yet been completely investigated and

P. Birnie/A. Boyle/C. Redgewell (note 48), at 549 et seq.
G. Hafner, The Optimum Utilization Principle and the Non-
Navigational Uses of Drainage Basins, 45 Austrian Journal of Public and Inter-
national Law 113-146 (1993).
E. Brown Weiss, Intergenerational Equity, Max Planck Encyclopedia of
Public International Law (2009).
G. Hafner, Die seerechtliche Verteilung von Nutzungsrechten, at 67 et
seq. (1987).
Ostrom et al. (note 36), at 465.
The Myth of the Commons: Divide or Perish 107

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

V. Adaption to Change in Social and Environmental Conditions

In the same vein, it is considered important that such regimes include

institutional adaptation and flexibility “…because of increasing rates of
change in the stocks of some resources and in the institutional envi-
ronment, particularly at the international level”.71
The need for adaptation is reflected, in particular, in the history of the
ITU, it being the oldest of all international organizations existing today,
which was required regularly to revise, update and extend its structure,
working methods and regulation to keep pace with new technologies,
new services, and new needs. Despite this need, such a permanent ad-
justment is not easy in international law: in this respect the new nego-
tiations regarding the Moon Treaty again best demonstrate the inflexi-
bility of treaty regimes.72 In order to facilitate adjustment, some regimes
contain review clauses and periodic review. However, practice, such as
the Review Conference of the Straddling Fish Stock Agreement, evi-

Report of the Legal Subcommittee on its forty-eighth session, Vienna, 23
March to 3 April 2009, A/AC.105/935.
Ostrom et al. (note 36), at 466.
It is questionable whether the distribution system reflected in the Decla-
ration on International Cooperation in the Exploration and Use of Outer Space
for the Benefit and in the Interest of All States, Taking into Particular Account
the Needs of Developing Countries, of 13 December 1966 (Res. A/RES/51/122)
corresponds to that envisaged in the Moon Treaty. In contrast to the Moon
Treaty, the Declaration makes no reference to the common heritage of mankind
what undoubtedly signals a certain uneasiness with this principle.
108 Hafner

dences the difficulty of such adjustment and the relative rigidity of

treaty law. Generally, international law tends to be rather conservative
and reluctant to accept changes which could respond to changed cir-
cumstances,73 and this applies to all regimes created by norms of inter-
national law.

VI. Establishing Appropriate Linkages Among Institutions

Ostrom et al. emphasize the importance of linking institutions not only

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

J. Delbrück, “Peaceful Change”, in: R. Wolfrum (ed.), United Nations
Law Policies and Practice, Vol. 2, 970–981 (1995).
Ostrom et al. (note 36), at 465.
Report of the Secretary General to the United National General Assem-
bly, Oceans and the law of the sea, UN Doc. A/64/66/Add. 1, 25 November
2009, para. 218.
A. Mahiou, Interdependence, Max Planck Encyclopedia of Public Inter-
national Law (2009).
The Myth of the Commons: Divide or Perish 109

with the same matters risk undermining the authority of regulations in

the absence of appropriate linkages. And indeed, in international fora,
the need for more coordination among all actors involved in the same
matter has frequently been emphasized,77 implying that this coordina-
tion has not yet been achieved.

F. Conclusions

What can be concluded from this application of the design principles as

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

K. Sherman/G. Hempel (eds.), The UNEP Large Marine Ecosystems Re-
port: a perspective on changing conditions in LMEs of the world’s regional seas,
UNEP Regional Seas Report and Studies No. 182 (2009).
J. Crawford, The International Law Commission’s Articles on State Re-
sponsibility: Introduction, Text and Commentaries, 254-306 (2002).
Supra note 43, at 23.
110 Hafner

of property rights entailing the possession of the resource, exclusion of

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

G. Hafner, Die seerechtliche Verteilung von Nutzungsrechten, 147 et seq.
The Myth of the Commons: Divide or Perish 111

In this respect and in a more political perspective, if more obligations

are imposed on States, in particular in the northern hemisphere, which
lead to the restriction of free access to resources, all States participating
in the relevant regimes, including developing countries, must accept
more restrictions on their sovereignty in order to enable increased en-
forcement measures. Otherwise, a tendency is likely to emerge for uni-
lateral systems, including individual States, to claim this function for
themselves. This would result in further nationalization of the distribu-
tion of formerly common resources.
Judicial Action for the Common Heritage
Tullio Treves

A. The Common Heritage

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

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

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 113

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_6, © Springer-Verlag Berlin Heidelberg 2011
114 Treves

from it. The last indication gives a conventionally reinforced status to

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

See T. Treves, Problemas generales del derecho internacional a la luz de la
Convención de las Naciones Unidas sobre el Derecho del mar, Cursos de dere-
cho internacional de Vitoria-Gasteiz, at 60-62 (1984).
S. Nandan/M. W. Lodge/S. Rosenne, United Nations Convention on the
Law of the Sea, A Commentary, Vol. 6, at 141 (2002), referring to the introduc-
tion in the draft of what was to become article 140, paragraph 1, of the expres-
sion “as specifically provided in this Part”, observe that: “The change in para-
graph 1 was a fundamental substantive change depriving paragraph 1 of any in-
dependent content and reducing it to a cross-reference to other provisions of
Part XI”.
Judicial Action for the Common Heritage 115

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

B. Possible Disputes Involving the Common Heritage


It is possible to conceive of different categories of disputes in which the

rules which give content to the notion of the common heritage of man-
kind may be involved. One such category is provided for in UNCLOS.
It includes disputes regarding activities in the Area. These disputes can
be seen as those concerning the correct management and use of the Area
and are consequently very relevant as far as the application and inter-
pretation of the rules on the regime and the machinery set out in Part
XI of the Convention are concerned. Disputes in this category may ari-
se, for instance, out of a claim that a State to which a contract for the
exploration and exploitation of the Area has been granted is contraven-
ing the conditions set out in the contract, or has alienated resources ex-
tracted from the Area without complying with the rules setting out the
regime for activities in the Area, or from a claim that the Authority has

A different question is whether from the provisions on activities in the
Area a notion of “common heritage” applicable to different activities (such as
activities for the exploration and exploitation of genetic resources of the seabed
beyond the limits of national jurisdiction) may be extrapolated. The present
writer has mentioned the problem as an open one in T. Treves, Protection of the
Environment on the High Seas and in Antarctica, in: Thesaurus Achroasium,
Vol. 21, Protection of the Environment for the New Millennium, 74-125, at 91
(2002). For a view favourable to the applicability of the idea of the common
heritage to genetic resources of the seabed beyond national jurisdiction see,
with further references, A. Oude Elferink, The Regime of the Area: Delineating
the Scope of Application of the Common Heritage Principle and of the Free-
dom of the High Seas, 22 The International Journal of Marine and Coastal Law
143-176, at 149-154 (2007).
116 Treves

arbitrarily refused to grant a contract when all relevant conditions were

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

C. The Possibilities of Bringing these Disputes to

Adjudication: Jurisdiction and locus standi

The above short indication of conceivable disputes serves merely to de-

scribe the kinds of questions of law and fact relevant for the common
heritage upon which States (and possibly other subjects of international
law) may disagree – echoing the well known Mavrommatis definition of
international disputes.6

S. Nandan/S. Rosenne, United Nations Convention on the Law of the
Sea 1982, A Commentary, Vol. 2, at 932 (1993): “Some States viewed the exten-
sion of the continental shelf beyond 200 nautical miles as reducing the interna-
tional Area”.
Mavrommatis concessions (preliminary objections), PCIJ Series A, No. 2,
11 stating that a dispute is: “a disagreement on a point of law or fact, a conflict
of legal views or of interest between the parties”.
Judicial Action for the Common Heritage 117

Before we can envisage such a dispute being submitted to adjudication,

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

the settlement of such disputes, such as the UN Fish Stocks Agreement

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

A list of the jurisdictional clauses set out in these agreements is published
in ITLOS Yearbook 2007 183 (2007). For comments see T. Treves, Dispute-
Settlement in the Law of the Sea: Disorder or System?, in: M. Kohen (ed.),
Promoting Justice, Human Rights and Conflict Resolution through Interna-
tional Law/La promotion de la justice, des droits de l’homme et du règlement
des conflits par le droit international, Liber Amicorum Lucius Caflisch, at 927-
949 (2007).
Judicial Action for the Common Heritage 119

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

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

D. Disputes Regarding Activities in the Area

These disputes, which may be classified as disputes concerning the cor-

rect management and use of the common heritage, are those considered
in article 187. The jurisdiction of the SBDC chamber is limited by the
requirements that the disputes concern “activities in the Area” and that
they fall into one of the categories described in the article. The need for
this double condition to be satisfied does not raise particular questions
as regards disputes mentioned in article 187 (b)(c)(d) and, it would
seem, (f). It seems relevant, however, as regards “disputes between
States Parties concerning the interpretation or application of this Part
[part XI of UNCLOS] and the Annexes relating thereto” mentioned in
article 187(a), as there may be questions relating to the interpretation or
application of Part XI which have no connection with “activities in the
Area”: an example could be a dispute, requiring the interpretation or
application of article 149, concerning archaeological and historical ob-
jects found in the Area.
The different kinds of parties which may be parties to disputes concern-
ing “activities in the Area” under article 187 have already been men-
tioned. As regards the subject matter of these disputes, a brief reminder
will be sufficient as the subject has been examined in literature. These
are, firstly, the above mentioned disputes between States parties con-
cerning the interpretation or application of Part XI and annexes III and
Judicial Action for the Common Heritage 121

IV, which can be labelled normal international disputes (187(a)); and

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

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

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

E. Disputes Concerning the Extension and Limits of the


The extension and limits of the Area are an essential aspect of the com-
mon heritage. They concern the spatial scope of the rules through
which the idea of the common heritage finds its expression in UN-
CLOS. The Area is defined in article 1(1) as “the seabed and ocean floor
and subsoil thereof, beyond the limits of national jurisdiction”. Conse-

Informal paper on Discussions of the Informal Open-Ended Working
Group Facilitated by New Zealand dated 1 June 2009.
Proposed Compromise text based on Chinese amendments dated 4 June
Judicial Action for the Common Heritage 123

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

Doc. SPLOS/196 of 22 May 2009, para. 1.
Award of 10 June 1992, 31 International Legal Materials 1145 (English)
(1992); U.N. Reports of International Arbitral Awards, XXI, 270 (French).
124 Treves

This Court is not competent to carry out a delimitation which af-

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

Id., para. 79.
R. Wolfrum, The Role of the International Dispute Settlement Institu-
tions in the Delimitation of the Outer Continental Shelf, in: R. Lagoni/D.
Vignes (eds.), Maritime Delimitation, 19-31, at 28 (2006).
Award of 11 April 2006, available at, (where the written
and oral pleadings are also available) and in 45 ILM 798 (2006).
Para. 384 (ii) included in the dispositif.
Judicial Action for the Common Heritage 125

ests of the international community when extensions of the continental

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

See my remarks in T. Treves, La communauté internationale et la délimi-
tation du plateau continental au-delà des 200 milles marins, in: Mélanges en
l’honneur de Jean-Pierre Puissochet, 311-315, at 315 (2008).
See L. D. M. Nelson, The Continental Shelf: Interplay of Law and Sci-
ence, in: N. Ando/E. McWhinney/R. Wolfrum (eds.), Liber amicorum Judge
Shigeru Oda, at 1235-1253 (2002).
International Law Association, Toronto Conference (2006), Legal issues
of the outer continental shelf, Second Report, Conclusion Nr. 21.
126 Treves

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

See Art. 46 and Annex I to the Rules of Procedure of the Commission for
the Limits of the Continental Shelf, in Doc. CLCS/40/Rev.1.
Art. 46, para. 4 of Annex I to the Rules of Procedure of the Commission
for the Limits of the Continental Shelf quoted at note 20.
Wolfrum (note 14), at 30.
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), ICJ
Reports 1966, 6, para. 88, at 47.
Nelson (note 18), at 1251.
Judicial Action for the Common Heritage 127

However, as Wolfrum emphasized, “international law has undergone

significant changes as far as the recognition of community interests are
[sic] concerned”.25 The ILA Committee on the Legal Issues of the
Outer Continental Shelf, chaired by Judge Nelson, has stated that States
Parties “individually” have an interest in the exploration and exploita-
tion of the Area and in exercising “certain high seas freedoms in the sea-
bed beyond the limits of national jurisdiction” and that: “[t]he existence
of this interest in the resources of the Area and these high seas freedoms
can be considered to give individual States a legal interest in the defini-
tion of the outer limits of the continental shelf”. Moreover, the right be-
longing under UNCLOS to each State party that the establishment of
the outer limits of the continental shelf by any other State party be ef-
fected in conformity with article 76 can be seen as a right corresponding
to an erga omnes partes obligation. The Institut de droit international,
in its resolution on obligations erga omnes in international law adopted
at the Krakow session in 2005, states that:
In the event of there being a jurisdictional link between a State al-
leged to have committed a breach of an obligation erga omnes and a
State to which the obligation is owed, the latter State has standing to
bring a claim to the International Court of Justice or other interna-
tional judicial institution in relation to the dispute concerning com-
pliance with that obligation.26
The Institut, in rejecting the originally proposed restriction on the no-
tion of erga omnes rights consisting in the requirement that the State to
which the obligation is owed must be “specially affected”,27 seems to
assume that all States parties to the treaty have a right to the compliance
with these obligations by each of the other States parties and that this

Wolfrum (note 14), at 30.
Article 3 of the Resolution, in: Institut de droit International, Annuaire,
Vol. 71, tome II, 287. See also the Plenary debates id., 81-137. The reports by
Mr. Gaja and comments by Members are in Annuaire, Vol. 71, tome I, 117-212.
A detailed scholarly study, reaching conclusions similar to those of the Institut,
is that of C. Tams, Enforcing Obligations Erga Omnes in International Law, at
158-197 (2005).
Such requirement had been included in article B of the Draft Resolution
submitted to the Krakow session (Annuaire, Vol. 71, tome II, 83); the corre-
sponding article 2 of the Resolution adopted specifies, to the contrary, that all
the States to which the obligation is owed are entitled to make claims to the re-
sponsible State “even if they are not specially affected by the breach” (id., at
128 Treves

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

See the intervention by Mr. Torres-Bernardez, Annuaire, Vol. 71, tome II,
109 et seq. and the observations by C. Dominicé, A la recherche des droits erga
omnes, in: O. Corten (ed.), Droit du pouvoir, pouvoir du droit, Mélanges of-
ferts à Jean Salmon, 357-371, at 366-367 (2007). He calls the position of the Ins-
titut on jus standi “une avancée spectaculaire” which has some precedents in
conventional regimes (as the Genocide Convention), while “la situation en droit
international général n’est pas encore claire” (367).
Wolfrum (note 14), at 30. Similarly ILA Committee (note 19), conclusion
Nr. 20.
That is to say, the right to the observance of the law (footnote added).
According to the view which seems to be prevailing, the notion of erga
omnes obligations is not limited to a structural requirement. It also contains the
requirement that these obligations protect particularly important values: in the
words of the Preamble of the above-quoted Kracow resolution of the Institut,
“the fundamental values of the international community”; according to Tams’
terminology, they require a “threshold of importance”, they “protect values of
heightened importance” Tams (note 26), 156, at 310. The relevance of the as-
sessment of the importance of the values protected by the obligations seems
particularly relevant (and open to different solutions) in the case of obligations
set out in multilateral treaties (erga omnes partes obligations). In the view of one
of the rapporteurs on International responsibility of the ILC, Gaetano Arangio-
Ruiz, the characteristics which distinguish erga omnes obligations are only
structural: Fourth Report on State Responsibility, in: ILC Yearbook, 2(1), 1, at
paragraph 92 (1992) [note in the original].
Judicial Action for the Common Heritage 129

justify the existence of a right to trigger proceedings before an inter-

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

F. Disputes Concerning the Sharing of Benefits

Under UNCLOS two kinds of benefits are to be shared: benefits deriv-

ing from activities in the Area, in accordance with article 140, para. 2,
and benefits deriving from the exploitation of the non-living resources
of the outer continental shelf (the “payments and contributions” men-
tioned in article 82).While under article 140 equitable sharing will be ef-
fected by the Authority, under article 82 it will be effected through the
Authority. This difference notwithstanding, article 160, paragraph
2(f)(i) considers jointly the power of the Assembly of the ISBA to
adopt rules, regulations and procedures for the “equitable sharing” of

T. Treves, The Settlement of Disputes and Non-Compliance Systems, in:
T. Treves/L. Pineschi/A. Tanzi/C. Pitea/C. Ragni/F. Romanin Jacur (eds.),
Non-Compliance Procedures and Mechanisms and the Effectiveness of Interna-
tional Environmental Law, 499-518, at 515 (2009).
Nelson (note 18), 1352, links the “need” to give judicial protection to re-
gimes such as the deep seabed regime to according to States parties a right of ac-
tio popularis and to granting the ISBA the right to institute proceedings for such
130 Treves

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

See above section B.
Judicial Action for the Common Heritage 131

As regards disputes relating to payments and contributions with respect

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

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

G. Conclusions

The observations above show that, even though, according to article

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

The decision of the Commission for the limits of the Continental shelf
not to consider the United States observations on the submission by Brazil (see
docs CLCS/41, paras. 16-17 of 14 September 2004, CLSC/44, para. 17 of 17
May 2005) does not augur well for taking into account positions in the interest
of the common heritage. See T. Treves, Remarks on the Submissions to the
Commission on the Limits of the Continental Shelf, Response to Judge’s Ma-
rotta Report, 21 The International Journal of Marine and Coastal Law 363-367, at
366-367 (2006).
Judicial Action for the Common Heritage 133

such consolidation. Moreover, effective protection of the common heri-

tage by judicial means requires the political will of a State or of a group
of States to act to exercise such protection. Such political will may find
obstacles in considerations arising from existing relationships with the
possible defendant States, from conflicting interests of the State, from
the financial and manpower requirements of going to Court. Civil soci-
ety action may play a relevant role in encouraging certain States to
submit to international courts and tribunals claims for the protection of
their erga omnes rights based on rules protecting the interest of man-
kind and in overcoming the obstacles which may hamper a decision in
favour of such submission.
All this reflects the political balance reached in UNCLOS. The role of
the Authority, seen by many as too pervasive, was curtailed, especially
as regards matters not included in the notion of activities in the Area.
States and their rights and obligations were left at centre stage. One
may wonder whether a more institutionalized protection of common
rights would have been preferable as compared with the decentralized
and somewhat random protection which States can provide.
Law of the Sea and Security
East African Piracy and the Defense of World
Public Order
Mahnoush H. Arsanjani / W. Michael Reisman

We are grateful for the opportunity to contribute an essay on the law of

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


Common to all legal systems is a set of fundamental sanctioning strate-

gies for the protection, restoration, and improvement of public order.

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 137

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_7, © Springer-Verlag Berlin Heidelberg 2011
138 Arsanjani/Reisman

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

See generally R. Arens/H. D. Lasswell, In Defense of Public Order
(1961); M. S. McDougal et al., Law and Public Order in Space (1963).
East African Piracy and the Defense of World Public Order 139

such as prevention and deterrence, will reduce the urgency of some of

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

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


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

See W. M. Reisman, Aftershocks: Reflections on the Implications of Sep-
tember 11, 6 Yale Human Rights and Development Law Journal 81 (2003); W. J.
Olson, International Organized Crime: The Silent Threat to Sovereignty, 21
The Fletcher Forum of World Affairs 65 (1997); W. M. Reisman/M. H. Arsan-
jani/S. Wiessner/G. S. Westerman, International Law in Contemporary Per-
spective, 349-351 (2004); and M. Naim, Illicit, 12-37 (2005).
East African Piracy and the Defense of World Public Order 141

Piracy was authoritatively defined in Article 101 of the United Nations

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

1833 UNTS 397.
United Nations Convention on the Law of the Sea, Article 103, see supra
note 3.
142 Arsanjani/Reisman

The discussions of the issue of piracy at the UNCLOS conferences do

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


The International Maritime Organization (IMO) provides statistics on

reports of acts of piracy and armed robbery going back to 1984.5 IMO

See Live Piracy Map, available at <
East African Piracy and the Defense of World Public Order 143

statistics are compiled primarily from incident reports collected by the

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

The “international waters” category includes all incidents occurring out-
side the twelve mile strip of territorial waters as defined by Article 3 of the
United Nations Convention on the Law of the Sea, see supra note 3.
International Maritime Organization, Reports on Acts of Piracy and
Armed Robbery Against Ships, Annual Report − 2008, available at <http://> [here-
inafter Annual Report − 2008].
The target vessel was confirmed to be steaming in only twenty two per-
cent of reported incidents. See Annual Report − 2008, id.
Annual Report − 2008, see supra note 7.
R. Middleton, Piracy in Somalia: Threatening Global Trade, Feeding Lo-
cal Wars, Chatham House Briefing Paper No. AFP BP 08/02, at 3, available at
144 Arsanjani/Reisman

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

Annual Report − 2008, see supra note 7.
International Maritime Organization, Reports on Acts of Piracy and
Armed Robbery Against Ships, Annual Report − 2000, available at <http://w> [here-
inafter Annual Report − 2000].
Annual Report − 2008, see supra note 7.
International Maritime Organization, Reports on Acts of Piracy and
Armed Robbery Against Ships, Annual Report − 2006, available at <http://ww> [hereinafter
Annual Report − 2006].
Annual Report − 2008, see supra note 7. The following section examines
the situation in East Africa in more detail.
East African Piracy and the Defense of World Public Order 145

Many forms of piracy continue in the South China Sea, though as of

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

In 2008, the IMO reported one hundred thirty four (134) incidents in
East Africa as compared with seventy two (72) in the South China Sea. Annual
Report − 2008, see supra note 7.
In 2008, the IMO reported one hundred thirty four (134) incidents in
East Africa as compared with seventy two (72) in the South China Sea. Annual
Report − 2008, see supra note 7.
Annual Report − 2006, see supra note 17.
Annual Report − 2008, see supra note 7.
See id., annex 2.
Annual Report − 2008, see supra note 7; Annual Report − 2006, see supra
note 17.
See Posting of Mike Nizza to The Lede, available at <http://thelede.> (15April 2008, 10:49 EDT).
Annual Report − 2000, see supra note 15.
Annual Report − 2008, see supra note 7.
146 Arsanjani/Reisman

ums. We will return to that success story in our consideration of possi-

ble remedies for East African piracy.


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

The next section will explain how piracy in East Africa differs from the
account of a typical attack given here.
Annual Report − 2006, see supra note 17.
International Maritime Organization, Reports on Acts of Piracy and
Armed Robbery Against Ships, Annual Report − 2007, available at <http://ww> [hereinaf-
ter Annual Report − 2007].
Annual Report − 2008, see supra note 7.
See International Maritime Organization, Reports on Acts of Piracy and
Armed Robbery Against Ships, MSC.4/Circ.139-142.
One should of course be wary of attempting to extrapolate the annual
rate of piracy incidents from only through October data. Although data from
previous years does not suggest significant seasonal variation in the rate of pi-
racy in East Africa, the high variance in the number of reported incidents in
each month of 2009 makes precise prediction impossible. Nevertheless, it is
clear that international efforts to control piracy in the region have not yet met
with much success. See International Maritime Organization, Reports on Acts
of Piracy and Armed Robbery Against Ships issued monthly, during September
East African Piracy and the Defense of World Public Order 147

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

2009 in MSC.4/Circ.143 of 30 October 2009 and during October 2009 in

MSC.4/Circ.145 of 10 November 2009.
Annual Report − 2008, see supra note 7. The status of the target ship was
unspecified in four incidents.
Id. The status of the target ship was unspecified in ten incidents.
For example, the MV Faina was seized over two hundred nautical miles
from the shore. See J. Gettleman/M. Ibrahim, Somali Pirates Get Ransom and
Leave Arms Freighter, The New York Times, 5 February 2009, available at
<>. Some at-
tacks have occurred as far as 700 nautical miles off the coast. See Annual Report
− 2008, supra note 7. The New York Times, 22 October 2009, A-11.
International Maritime Bureau Piracy Response Center, Best Manage-
ment Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia
6 (2009), available at <>.
Annual Report − 2008, see supra note 7.
The New York Times, supra note 38.
148 Arsanjani/Reisman

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

Middleton (note 10), at 4.
Annual Report − 2008, see supra note 7.
Annual Report − 2007, see supra note 32.
Annual Report − 2006, see supra note 17.
See M. Ibrahim/G. Bowley, Pirates Say They Freed Saudi Tanked for $3
Million, The New York Times, 9 January 2009, available at <http://www.nytim>.
See J. Gettleman/M. Ibrahim, Somali Pirates Get Ransom and Leave
Arms Freighter, The New York Times, 5 February 2009, see supra note 38.
The New York Times, 18 November 2009, at A-10. It is reported that 80
luxury cars crowded the shore, at Xarardheere, Somalia, as friends of family
members of the pirates assembled for a share of the ransom money being di-
vided among the pirates.
East African Piracy and the Defense of World Public Order 149

Piracy in East Africa is distinctive for still other reasons. Somalia, as a

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


The United Nations Security Council has passed a series of resolutions

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

See SC Res. 1851 of 16 December 2008.
See L. Ploch et al., Piracy off the Horn of Africa, Congressional Research
Service Report 16 (2009).
150 Arsanjani/Reisman

terrorism activities.52 As of April 2009, the task force consisted of over

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

Id., at 17.
See Middleton (note 10), at 10.
See Ploch et al. (note 51), at 26.
See Middleton (note 10).
East African Piracy and the Defense of World Public Order 151

more targeted missions have also been established. In October 2008,

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


There have also been efforts to establish a regional cooperation agree-

ment to enable local states to coordinate their anti-piracy measures. As
with direct international enforcement, a regional cooperation agreement
can help to raise the cost to pirates by increasing the likelihood of cap-
ture and prosecution. The International Maritime Organization has
sponsored the creation of the Djibouti Code of Conduct, a regional co-

See Ploch et al. (note 51), at 17.
18 November 2009, reported by AFP online, <http://www.afponline.
152 Arsanjani/Reisman

operation agreement adopted by seventeen regional governments in

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

Id., at 18.
Id., at 19.
See Middleton (note 10), at 11.
See EU to Train Somali Piracy Force, BBC News, 28 July 2009, available
at <>.
East African Piracy and the Defense of World Public Order 153


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


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

See Paul Betts, Somali Pirates on Private Sector Radar, Financial Times, 15
June 2009.
See Department of Transportation, Economic Impact of Piracy in the
Gulf of Aden on Global Trade.
Ploch et al. (note 51), at 26.
154 Arsanjani/Reisman

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

J. Bahadur, Heroes in a Land of Pirates, New York Times, 4 January 2010,
See Middleton (note 10), at 11.
East African Piracy and the Defense of World Public Order 155

benefit ratio of hijackings.77 The Monitoring Group Report has also

linked the recent rapid increase in Somali piracy to the under-
enforcement of the international arms embargo on Somalia, suggesting
that multi-national fleets in the region step up interdiction of illicit arms


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

Report of the Monitoring Group on Somalia pursuant to Security Coun-
cil resolution 1811 (2008), UN Doc. S/2008/769, para. 266.
Id., at para. 264.
The Case of the SS “Lotus”, PCIJ 1927, Series A, No. 10, 3, at 37 et seq.
See J. Bone, Somali Pirate Abduwali Abdukhadir Muse in US for Maersk
Alabama Hijack Trial, London Times, 22 April 2009, available at <http://>.
See The Savannah Privateer: Trial for Piracy − Great Throng in Court,
The New York Times, 24 October 1861.
156 Arsanjani/Reisman

Islamic authorities might lead to the violation of their human rights or

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


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

See M. Woolf, Pirates Can Claim UK Asylum, London Times, 13 April
2008, available at <
See Germany Mulls Legal Recourse for Nine Seafaring Suspects, Spiegel,
6 March 2009, available at <,1518,
See J. S. Porth, Legal Experts Take Action to Prosecute Pirates, Amer-, 27 February 2009, available at <
See supra note 55 and accompanying text.
East African Piracy and the Defense of World Public Order 157

that is, directly preventing pirates from boarding ships − is crucial. That
necessarily means a reversion to the types of self-help that were used by
merchantmen plying the seas in earlier centuries. The disturbing record
of private security companies in international law cannot be ignored
but, like the problem of a corrupt police force at the national or sub-
national level, the answer is correction rather than abolition of police.
Private police forces are well-known fixtures in many states. In interna-
tional politics, military contractors have emerged as useful tools and
have even been used by international organizations. In the air transport
industry, air marshalls have become one of a range of practices to pre-
vent skyjacking, analogous to maritime piracy. One means of mitigation
of piracy would be the incorporation of private military contractors on
ships transiting pirate-infested waters. This proved to be useful in fight-
ing back the pirates in their second attack on Maersk Alabama in No-
vember 2009, discussed below.
Ship captains have been increasingly able to employ evasive maneuvers
to thwart an attempted pirate attack.86 Some vessels have begun to take
more direct security precautions, such as hiring private security87 or
employing non-lethal means of deterring attacks such as sonic genera-
tors or fire hoses.88 For example, Maersk Alabama, the American-
flagged ship that was seized by pirates in April and whose captain was
held at gun-point by pirates on a lifeboat, was attacked, again, on 18
November 2009, 600 miles off the northeast coast of Somalia bound for
the Kenyan port of Mombasa. But this time, a security team on board
responded with small-arms fire, long-range acoustical devices painful to
the human ear and evasive maneuvers to thwart the attack. Apparently
four of the pirates were killed and two were injured. Some observers
speculate that these measures may ultimately prove more costly than
occasional ransom payments.89 If more immediate and forceful military
operations in territorial waters and on land to piracy from failed states
is to be undertaken, permission for such operations should come

Statistics released by the International Maritime Organization reveal a
sharp increase in successful use of evasive measures by ship captains in the East
African region.
Id., at 25.
Middleton (note 10).
Ploch et al. (note 51), at 26.
158 Arsanjani/Reisman

through Chapter VII as was done in the Security Council resolutions

on Somalia.90


A crisis is a situation in which key values of the community are threat-

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

See SC Res. 1814 of 15 May 2008, SC Res. 1816 of 2 June 2008, SC Res.
1838 of 7 October 2008, SC Res. 1844 of 20 November 2008, SC Res. 1846 of 2
December 2008 and SC Res. 1851 of 16 December 2008.
On May 2, 2010, The New York Times reported that radical Islamist in-
surgents seized “one of the country’s most notorious pirate dens … raising
questions about whether rebels with connections to Al Qaeda will now have a
pipeline to tens of millions of dollars – and a new ability to threaten global
trade.” New York Times, 3 May 2010, A4.
East African Piracy and the Defense of World Public Order 159

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

I am grateful to the organizers for the invitation to participate in this

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

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 161

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_8, © Springer-Verlag Berlin Heidelberg 2011
162 Mensah

A. Piracy in the Traditional Law of the Sea

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

Details of the Santa Maria incident may be found in M. Q. Mieja, Defin-
ing Maritime Violence and Maritime Security, in: P. K. Mukherjee/M. Q.
Meija/G. M. Gauci (eds.), Maritime violence and other security issues at sea,
Proceedings of the International Symposium at the World Maritime University,
34 (2002). For more on the Achille Lauro see M. Jacobsson, Terrorism at Sea –
Transcript of oral presentation, id., at 157– 159.
Convention on the High Seas, 29 April 1958, Arts. 15-22, 450 UNTS
6465, and United Nations Convention on the Law of the Sea, 10 December
1982, Arts. 101-107, 1833 UNTS 31363. The general view was that, strictly
speaking, the acts in these incidents were not acts of “piracy” as understood in
international law of the sea. See M. Halberstam, Terrorism on the High Seas;
the Achille Lauro, Piracy and the IMO Conventions on Maritime Safety, 82
American Journal of International Law 269-310 (1988). For a contrary view see
S. Manefee, The Achille Lauro and Similar Incidents as Piracy: Two Arguments,
in: E. Ellen (ed.), Piracy at Sea, 179-180 (1989).
Art. 3, para. 1(a) of the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation (SUA Convention 1988) defines the
Piracy at Sea − a New Approach to an Old Menace 163

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

B. Recent Developments

In general the difficulties created by recent incidents of piracy and vio-

lent acts against shipping have not been due to doubts or disagreement
about the proper characterization of the acts involved. Rather, the diffi-
culties arise from doubts and uncertainties concerning the measures that

new offence as seizing or exercising control over a ship “by force or the threat
of force or any other form of intimidation”.
SC Res. 1816 of 2 June 2008.
IMO Res. A 922(22) of 29 May 2001.
10 March 1988, 27 ILM 672 (1988).
The 1988 Convention broadens the scope of the offence to include all
“unlawful acts” against a ship or persons and property on board, regardless of
where the ship might be. It also makes the offence punishable under the laws of
any State in which the offender or alleged offender might be found.
164 Mensah

States are entitled, individually or collectively, to take in order to im-

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

On the earlier incidents of piracy see J. Abhyankar, Piracy and maritime
violence: a global update, in: Proceedings of the International Symposium held
at the World Maritime University, see supra note 1, 9-25.
Piracy at Sea − a New Approach to an Old Menace 165

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

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

while it gives authorization to any State to enter the territorial waters of

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

On the difficulties and ambiguities arising from and under the Security
Council resolution see T. Treves, Piracy, Law of the Sea and the Use of Force:
Development of the Coast of Somalia, 20 European Journal of International
Law 399-414 (2009).
Piracy at Sea − a New Approach to an Old Menace 167

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

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

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

IMO Doc. MSC 1/Circ.1334.
Id., para. 63.
Piracy at Sea − a New Approach to an Old Menace 169

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

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

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

“Although (the SUA) convention was primarily designed for terrorism, it
can be applied to most incidents involving piracy and armed robbery against
ships”, Abhyankar (note 8), at 5.
“While the legal position of the purist may be correct, such a distinction
is irrelevant in the eyes of the victim”, Abhyankar (note 8), at 9. “Because the
Piracy at Sea − a New Approach to an Old Menace 171

As far as concerns the practical measures that may or can be taken by

individual States, the merchant shipping industry and the international
community as a whole, there has been no shortage of ideas, suggestions
and prescriptions. The proposed measures range from the very simplis-
tic to the most utopian. Among these are the suggestion that the pirates
should be “blown out of the water” and the proposition that “the prob-
lem is not going to be solved at sea but by the authorities of Somalia”.
Trawling through the internet on just one occasion, one comes across a
wide range of suggested solutions to the problem of piracy. Some of
these solutions involve great leaps of the imagination, and each and eve-
ry one of them raises difficult and complex problems in practical appli-
One suggestion that has been made is to place armed guards on ships,
similar to the air marshal programme that was (and is still) instituted on
airplanes after the incidents of hijacking of airplanes. The idea is that
the programme could be administered by an international agency such
as the United Nations and would consist of trained military personnel
from several countries. The guards would board a ship before it enters
the region and remain on board until the ship has exited the region.
They would be given instructions to repel pirates trying to board the
ship. Shipowners would be required to pay fees for the services of the
guards. Although it is admitted that this might be expensive, it is also
claimed that it would probably be less expensive to the owners than ha-
ving to pay several million dollars to ransom their ships and crews
when they are seized by the pirates. And it is also suggested that it
might be less expensive and more efficient for the countries currently
maintaining naval ships in the area who, apparently, are currently un-
able to arrive within a reasonable time to assist a ship being attacked by
A variant of the same suggestion would allow shipping companies to
hire armed security guards who would be stationed on board their

effect is the same on their ship and seafarers no matter where a violent crime ta-
kes place and no matter whether the act is called piracy, armed robbery, or as-
sault ...”, the industry (and also IMO) make reference not just to piracy but also
to “armed robbery”, “in other words, anything that looks like piracy, smells
like piracy and hurts like piracy, but is NOT piracy under the strict interpreta-
tion of the Law of the Sea”, Meija (note 1), at 2.
See posting to Question of the Week: How Should the International
Community Respond to Piracy at Sea?, available at <
idex.php/entires/q_piracy_sea/> (10 April 2009, 02:44 PM).
172 Mensah

ships. It is suggested that a five or six man professional security team,

hired from a private contractor company, would be more than sufficient
and would be available at a cost to all countries and shipowners for
much less than the cost of deploying naval ships over a wide area. Ar-
rangements could be made for the locking of weapons while the ships
are in port.
Another suggestion is for ships transiting the affected area to be es-
corted in convoys. One blogger writes: “I suggest trying convoys of
ships escorted by the few naval ships that are available. It worked
against sub-marine attacks during the second world war. There would
be no need for long-distance circumvention of the area, although some
ships may have to wait a limited time until a convoy and its military
ship escorts could be assembled”. The same idea is put forward differ-
ently by another contributor as follows: “An old and simple solution to
the current piracy tactics would be the formation of scheduled convoys
through the area. These would be easy to escort effectively through the
region without trying to police the thousands of miles of empty
oceans.” Another writer elaborated the idea further as follows: Under
the aegis of the United Nations, an international task force would be
formed. Participants would be from any countries which want to par-
ticipate. The task force would establish a convoy schedule to escort
ships through the Gulf of Aden with armed escorts. Shipping compa-
nies and insurance underwriters would pay the United Nations a rea-
sonable amount for each trip and each country participating in the task
force would receive a reasonable percentage of the fees as a credit
against its dues to the United Nations. As part of such a scheme, it is
proposed that “a no-ship zone” could be established and enforced in
the area, and any boat without documents of authorization would be
These suggestions, and many similar ones that have been made in re-
sponse to the recent escalation in the pirate and other unlawful acts
against ships, indicate that there is not paucity of options and ideas for
dealing with this menace. That is not, of course, to suggest that that all
or even any of the suggestions would be feasible in practical or political
terms. Further, none of them can be said to be completely without diffi-
culty legally. For example, the suggestion that armed security personnel
might be placed on board ships to repel attacking pirates appears to go
directly contrary to the position taken by IMO, the United Nations
agency with primary responsibility for maritime safety. As noted above,
the Maritime Safety Committee of IMO has frowned on the idea of
arming seafarers. The Committee has explained that its position is based
Piracy at Sea − a New Approach to an Old Menace 173

on “legal and safety reasons”. The reasons given by the MSC include
the following:
1. Seafarers are civilians and the use of firearms requires special
training and aptitudes and the risks of firearms carried on board
ships are great;
2. Merchant ships and fishing vessels entering the territorial sea
and/or ports of another State are subject to the laws of that State, in-
cluding legislation on the importation of firearms;
3. The carrying of firearms may pose an even greater danger if the
ship is carrying flammable cargo or similar types of dangerous
4. Carriage of arms on board may encourage attackers to carry fire-
arms or even more dangerous weapons, thereby escalating an al-
ready dangerous situation; and
5. Any firearms on board may themselves become an attractive tar-
get for an attacker.18
In this connection it is noted that whilst the MSC takes a firm position
against the arming of ships’ personnel, it is more flexible on the use of
“armed security personnel duly authorized by the Government of the
flag State to carry firearms for the security of the ship”. The position of
the Committee is that “it is a matter for the flag State”, in consultation
with the interested parties.
It is pertinent to observe in this regard that the reluctance to sanction
the arming of vessels may not fully reflect the established traditions of
merchant shipping. In fact the idea of arming merchant ships is not al-
together new or recent. In the past, it was not unusual for merchant
ships to carry cannon and weapons comparable to those found on naval
vessels. And weapons were often used by crews to defend themselves
and their ship against attacks by pirates, privateers and enemy warships,
wherever possible. Indeed, as far back as 1914, the United States De-
partment of State recognized that merchant ships could be armed with-
out acquiring warship status. However, this was subject to certain
qualifications. Among these were: that the calibre of guns carried
should not exceed six inches; any guns and small arms should be few in
number and the quantity of ammunition must be small, the vessel is to
be manned by its usual crew, the cargo carried should not be contra-
band and the ship must be employed in normal trade. Nor is the prac-
tice a thing of the past. In recent times it has been reported that some

See notes 12 and 13 above.
174 Mensah

merchant ships have employed both lethal and non-lethal weapons to

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

On this see Squire Sanders and Dempsey L.L.P., Maritime Alert: May
2009: Protecting Crews and Ships From Piracy by Arming Merchant Vessels for
Self-Defense (2009), available at <
Piracy at Sea − a New Approach to an Old Menace 175

permitted to take carefully controlled measures to repel attacks by pi-

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

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

C. Concluding Remarks

The threat posed by piracy and other unlawful violent acts against in-
ternational shipping has reached a stage where some of the traditional
attitudes, principles and rules of law are no longer able to deal effec-
tively with what is a continuing and growing menace. Indeed when ac-
count is taken of the nature and implications of the new practices and
methods utilized by the new type of pirates, it is no exaggeration to say
that some of the traditional principles and procedures are no longer
relevant. Accordingly, the States and international organizations with
responsibilities in this area should recognize and accept that, when con-
sidering future arrangements to deal with the new threat, it would not
be advisable or wise to remain attached to the attitudes and principles
Piracy at Sea − a New Approach to an Old Menace 177

that were used in a different era to deal with problems that are clearly
different in scope and intensity from those with which the international
community is currently confronted. In such a situation, a more proac-
tive and imaginative approach is not just desirable but indeed essential.
The Security Council and the Security on the
Jochen Abr. Frowein

A. The Interception of Two German Ships with Weapons

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

H. Hestermeyer et al. (eds.), Law of the Sea in Dialogue, 179

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 221,
DOI 10.1007/978-3-642-15657-1_9, © Springer-Verlag Berlin Heidelberg 2011
180 Frowein

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

B. Authorization by Security Council

Flag state jurisdiction is the general principle connected with the free-
dom of the seas. But flag state jurisdiction must not be seen as a justifi-
cation for disregarding binding Security Council resolutions or for ac-
tion which is in violation of Art. 2 para. 4 of the United Nations Char-
ter. It has been explained in earlier interventions to what extent interna-
tional law has been influenced by the consensus of States not to tolerate
violations of international law by shipment on the High Seas. The slave
trade, piracy and the rules included for these issues in the United Na-
tions Convention on the Law of the Sea are evidence for that proposi-
tion. However, today there are new dangers existing.

There were several press reports, in particular in Hamburger Abendblatt.
Frankfurter Allgemeine Zeitung, 6 November 2009, 6.
The Security Council and the Security on the Seas 181

The Security Council may authorize interception where a threat to the

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

C. The PSI

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

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

ment and technologies.4 According to recent information PSI has over

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

Proliferation Security Initiative, 11 November 2009, available at <http://>; see also M. Byers, Proliferation Security Ini-
tiative, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International
Law online edition (2007).
Wikipedia, Proliferation Security Initiative (2009), available at <http://en.>.
Adopted on 4 September 2003 in Paris, available at <http://www.state.
Id., para. 2.
The Security Council and the Security on the Seas 183

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

D. Specific Treaties Authorizing Boarding

The United States has concluded agreements with eight countries –

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

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

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

Art. 4 of the Treaty with Belize, signed on 4 August 2005, entered into
force on 19 October 2005 reads as follows:
1. Authority to Board Suspect Ships. Whenever the Security Force Officials
of one Party (“the requesting Party”) suspect that a ship located in international
waters is a suspect ship which claims nationality in the other Party (“the re-
quested Party”), the requesting Party may request through the Competent Au-
thority of the requested Party, in accordance with paragraph 2 of this Article,
that it:
a. confirm the claim of nationality of the suspect ship; and
b. if such claim is confirmed:
i. authorize the boarding and search of the suspect ship, cargo and the per-
sons found on board by Security Force Officials of the requesting Party; and
ii. if items of proliferation concern are found, authorize the Security Force
Officials of the requesting Party to exercise control over the movement of the
ship, as well as items and persons on board, pending instructions conveyed
through the Competent Authority of the requested Party as to the actions the
requesting Party is permitted to take concerning such items, persons and ships.
2. Contents of Requests. Each request should contain the name of the suspect
ship, the basis for the suspicion, the geographic position of the ship, the IMO
number if available, the homeport, the port of origin and destination, and any
other identifying information.
If a request is conveyed orally, the requesting Party shall confirm the request
in writing by facsimile or e-mail as soon as possible within two hours. The re-
quested Party shall acknowledge to the Competent Authority of the requesting
Party in writing by facsimile or e-mail, or orally and confirmed in writing, its
receipt of any written or oral request as soon as possible within two hours upon
receiving it.
3. Responding to Requests.
a. If the nationality is not verified, the requested State may refute the claim of
the suspect ship to its nationality.
b. If the nationality is verified, the requested Party may, if satisfied that this is
a suspect ship:
i. decide to conduct the boarding and search with its own Security Force Of-
ii. authorize the boarding and search by the Security Force Officials of the
requesting Party;
iii. decide to conduct the boarding and search together with the requesting
Party; or
The Security Council and the Security on the Seas 185

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

iv. deny permission to board and search.

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

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

E. Obligations Under Security Council Resolutions

In Resolution 1747 the Security Council banned all arms shipments

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

Art. 4 (para. 3) lit. e.
The Security Council and the Security on the Seas 187

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

F. The Hansa India

The information possessed by US and Israeli intelligence was clear and

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

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

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

G. The Francop

Again clear information existed and was confirmed by the interception

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

Y. Dinstein has argued that Israel can also rely on the rules concerning
contraband since a state of war exists between Israel and Lebanon.
The Security Council and the Security on the Seas 189

H. The Protocol to the Convention for the Suppression of

Unlawful Acts Against the Safety of Maritime Navigation

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

I. Conclusion

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

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

Hrsg.: A. von Bogdandy, R. Wolfrum
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