Transcript Terry Long | WP 4 Policy now - DAIMON Project

Management Strategies
Legal aspects of marine munitions’ management
Noah Al-Malt - Terrance P. Long/ The International
Dialogue on Underwater Munitions (IDUM)
Goslar, Germany
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Introduction /1
In the global arms race, the world’s oceans, rivers, and lakes have
remained a junkyard for discarded military munitions. Through
the greater part of the 20th century, warring states have disposed
of excess, obsolete, and unserviceable munitions of all types at
sea. After the Second World War the United States, France, the
Soviet Union, and the United Kingdom largely relied on sea
dumping to dispose of confiscated German weapons. The
Japanese Imperial Army also carried out the dumping of chemical
materials off of its coasts. Sea dumping of chemical munitions has
been carried out in almost every ocean and in many terrestrial
watercourses. In a 2001 report, the United States Army identified
seventy-four chemical weapon disposal sites dated from 19171970 scattered across the globe.
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Introduction /2
Because of the participation of many states in the dumping of
chemical weapons and the associated widespread environmental
and human health effects, the existence of sea dumped chemical
weapons is clearly an international issue. Thus, this policy paper
focuses on the issues surrounding sea dumped chemical weapons
from the perspective of public international law. The purpose of
this paper is to show that, while many international agreements
touch on certain aspects of the issues surrounding the dumping
of chemical munitions, none address it specifically, or provide
mechanisms for international cooperation or enforcement. In
other words, it highlights the need for a comprehensive
international agreement.
Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/1
Until the 1960s, sea dumping was believed to be one of the safest
and most cost effective ways to dispose of munitions. The
atmospheric testing of nuclear weapons during the Cold War
drastically increased public concern and awareness of the
environment, leading to greater consideration of the
environmental impacts of military activities. In 1969, the U.S.
National Academy of Science recommend the discontinuation of
sea disposal of chemical warfare agents and in 1972, the United
States Congress enacted the Marine Protection Act recognizing
that “unrelated dumping of material into ocean waters endangers
human health, welfare, and amenities, and the marine
environment, ecological system, and economic potentialities.”
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/2
The international community soon recognized that the marine
environment’s capacity to assimilate the byproducts of man’s
activities is not unlimited and began holding a series of
international conferences to discuss the prevention of marine
pollution. The 1972 United Nations Conference on the Human
Environment in Stockholm produced a “Declaration of the Human
Environment,” which stated as a general principle:
States shall take all possible steps to prevent pollution of
seas by substances that are liable to create hazards to
human health, to harm living resources and marine life,
to damage amenities or to interfere with other legitimate
uses of the sea.
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/3
The definition of marine pollution adopted at the Stockholm
Conference reflected the definition prepared by the Joint Group
of Experts on the Scientific Experts of Marine Pollution.
1990 Secretariat Report, p. 3 “[Pollution is] “the
introduction by man, directly or indirectly, of substances or
energy into the marine environment (including estuaries)
resulting in such deleterious effects as to harm living resources,
hazards to human health, hindrance to marine activates including
fishing, impairment of quality for use of sea water, and reduction
of amenities.”
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/4
Both definitions encompass harm to human health, the marine
environment, and interference with free legitimate use of the sea. Since
1972, several multinational conventions were adopted to protect the
marine environment including:
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1972 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (“London Convention”);
1973 International Convention for the Prevention of Pollution from
Ships;
1973 Protocol relating to Intervention on the High Seas in Cases of
Pollution by Substances other than Oil;
1982 United Nations Convention on the Law of the Sea (“UNCLOS”);
1989 Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal;
1996 Protocol to the Convention on the Prevention of Marine Pollution
of Wastes and Other Matter (“1996 Protocol to the London
Convention”).
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/5
Several conventions and protocols were also adopted specifically to deal
with oil pollution and pollution stemming from industrial or commercial
activities. Many of these global conventions encouraged regional
cooperation among states to protect the marine environment, and as a
result, many states also adopted regional agreements.
While these conventions ban the dumping of certain substances, no
current treaty – or customary international law – requires the removal
of chemical or conventional weapons or their byproducts from the
marine environment. The most on point documents regarding sea
dumped chemical weapons are the London Convention and its 1996
Protocol. The London Convention prohibits the dumping of certain
“Black List” materials and limits the dumping of other “Gray List”
Materials. It specifically bans the dumping of “materials in whatever
form … produced for …
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/6
biological or chemical warfare” and requires the reporting of
illegal dumping activities from vessels and aircrafts. But it
does not require states to remove materials which could
meet the updated definition of pollution reflected in the
1996 Protocol to the London Convention. While the IMO
website purports that the purpose of the 1996 Protocol to
the London Convention applies a restrictive precautionary
and a “reverse list” approach, the Compliance Group has
taken no action to date regarding the removal of chemical
weapons.
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Many Treaties Aim to Protect the Marine Environment but
None Specifically Require the Removal of Sea Dumped
Chemical Munitions/7
The 1982 UNCLOS incorporates provisions of the London Agreement and
is widely regarded as reflecting the customary international law of the
sea. Article 210(1) of UNCLOS requires that states adopt laws and
regulations to prevent, reduce, and control marine pollution. Article
210(4) encourages international cooperation on marine issues by
requiring states to “endeavor to establish global and regional rules.”
UNCLOS does not, however, provide any applicable procedures relating
to the listing, monitoring, or removal of sea dumped chemical weapons.
The plain language of Article 210 makes clear that states would be
responsible for coming up with programs and regulations relating to sea
dumped chemical weapons. While some states have developed limited
programs from the removal of dumped chemical weapons, there is no
current form designated for international cooperation.
The Chemical Weapons Convention
Specifically Exempts from Coverage
Munitions Dumped Before 1985/1
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Outside of the realm of environmental protection, the Chemical
Weapons Convention could be considered to cover sea dumped
munitions. The Chemical Weapons Convention was made possible by
the softening of relations between east and west in the resolution of the
Cold War. The Chemical Weapons Convention, entered into force in
1997, prohibits states parties from developing, producing, acquiring,
using, retaining chemical weapons. It also requires each state party to
destroy its own chemical weapons stockpiles, and the stockpiles
abandoned on its territory. Article III provides the procedures for each
state party to declare chemical weapons within its possession. Article IV
requires that states parties submit detailed plans for the destruction of
chemical weapons no later than 60 days before each annual destruction
period. Article IV also requires states to cooperate with other states
parties and the Technical Secretariat.
The Chemical Weapons Convention Specifically Exempts
from Coverage Munitions Dumped Before 1985/2
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The Chemical Weapons Convention has one major flaw. It does not
require states to declare chemical weapons dumped at sea before 1
January 1985. One participant in the 1995 NATO Advanced Research
Workshop on Sea Dumped Chemical Munitions remarked that any
recovery of any munitions as was not seen as adding to the security of
states parties, the primary purpose of the Convention. This exemption
from declaration duties under Article III of the Chemical Weapons
Convention was unexplained. A likely explanation is that it would have
been difficult to make declarations of sea dumped weapons, as dumping
was often carried out haphazardly. There is absolutely no obligation to
destroy munitions dumped at sea under Article IV of the Chemical
Weapons Convention. As for the cut-off date of 1 January 1985, it was
likely that some states would be implicated by an earlier date. Though
the practice of sea-dumping largely stopped in the 1970s, U.S. reports
found that some munitions sites were used as recently as the 1990s.
An International Agreement is Necessary/1
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While the international agreements discussed above touch on aspects
of issues related to sea dumped chemical munitions, none address the
problem specifically or really provide a comprehensive framework from
which to address it. A new international agreement is necessary. While
the Organization for the Prohibition of Chemical Weapons (“OPCW”) is
tasked with monitoring the production, transfer, and destruction of
chemical weapons, those dumped at sea before 1 January 1985 are
exempt from the treaty. The IMO seems to be relegated to monitoring
maritime safety and industrial pollution and has no clear mandate or
authority to monitor for sea dumped chemical weapons. The United
Nations has no sub-agency or technical body with a mandate to monitor
chemical weapons, such activities would be within the purview of the
OPCW.
An International Agreement is Necessary/2
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In order to comprehensively address the issues, it would either
require several international bodies to cooperate, or that one
international body be specifically mandated with the oversight of
sea dumped chemical munitions. Both situations are highly
unlikely. We can conclude here that a new international
agreement creating a new international organization is necessary.
The necessary functions such a body should perform are: the
gathering and exchange of information between states; lending
financial and technical assistance; and providing for the
monitoring and eventual removal of sea dumped chemical
weapons.
An International Agreement is Necessary/3
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As with other international issues, it is critical that states share information. Records of
munitions disposal are generally incomplete. Even with available records, historical dump
site information often provides only general locations, and may not be entirely accurate. It
will require cooperative assistance to put together a complete picture. The Belgian Federal
Study on sea dumped chemical munitions wisely noted that “any risk assessment will be
uncertain as long as it is based on an incomplete inventory of the site.” While developed
nations may have the financial and institutional capabilities to identify, monitor, and remove
sea dumped chemical weapons, many nations will not.
Ecological and human health issues related to the environment do not stop at the border.
One clear example of this is the effect on fish stocks, from which fish are sold to consumers in
markets across the globe. Put quite aptly by HELCOM: “The legacy from the past is still resting
on the bottom of the sea and is inextricably linked to the fish of today, and it may be that its
effects will only be discernible on the consumer of tomorrow.” Without financial and
technical cooperation, the international community cannot address the global risks
associated with sea dumped chemical weapons.
There is International Momentum Behind
Developing an International Treaty for the
Removal of Sea Dumped Chemical Weapons/1
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States have shown concern regarding the hazardous effects of sea
dumped chemical weapons and there is currently a momentum to draft
an international agreement. In 2011, International efforts sponsored by
the Government of Lithuania led the United Nations General Assembly
to pass Resolution 65/149 noting the importance of raising awareness of
the environmental effects of munitions dumped at sea. It suggested that
states and organizations continue monitoring, and invited the SecretaryGeneral to seek the views of member states. At the Third Review
Conference at the OPCW in April 2013, Poland, Lithuania, Bulgaria, and
Luxembourg proposed that the OPCW become a venue for voluntary
cooperation on sea dumped chemical.
These efforts grabbed the OPCW’s attention, which passed Resolution
65/149, inviting states parties to support voluntary sharing of
information, awareness and cooperation.
There is International Momentum Behind Developing an
International Treaty for the Removal of Sea Dumped
Chemical Weapons/2
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In July 2013, following direction from Resolution 65/149, the UN Secretary
General drew on information submitted by states, relevant regional and
international organizations, NGOs, and produced a report summarizing
these views. The Secretary General reported that many states indicated that
there was an environmental risk to their states or region from wastes
originating from munitions dumped at sea. States widely agreed that
international cooperation would be required to assess and increase
awareness of underwater munitions. Particularly, states to the London
Convention – including the United States – endorsed a policy of locating
historical sites of obsolete munitions and bringing this information to the
attention of fishers and mariners. Yet when it came to lending financial and
technical assistance, concrete proposals were not put forward.
The international community needs to continue moving forward with
concrete proposals for a treaty to address sea dumped chemical weapons.
Our ocean’s and estuary’s fates are at stake.
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/1
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• Recalling that the Conservation and Management Plan
annexed to the Agreement stipulates that ASCOBANS should
work towards “the prevention of other significant disturbance,
especially of an acoustic nature”;
• Recalling Resolution No. 4 of MOP5 on Adverse Effects of
Sound, Vessels and Other Forms of Disturbance on Small
Cetaceans;
• Further recalling related decisions adopted by the Conference
of the Parties to CMS, in particular Resolution 9.19 on Adverse
Anthropogenic Marine/Ocean Noise Impacts on Cetaceans and
other Biota and Resolution 10.24 on Further Steps to Abate
Underwater Noise Pollution for the Protection of Cetaceans
and Other Migratory Species;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/2
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Also recalling United Nations General Assembly Resolution 68/208 on Cooperative measures to
assess and increase awareness of environmental effects related to waste originating from chemical
munitions dumped at sea;
Further recalling the Sustainable Development Goals (SDGs) of the 2030 Agenda for Sustainable
Development adopted in September 2015, and especially Goal 14 to Conserve and sustainably use
the oceans, seas and marine resources, which includes the following targets:
By 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-based
activities, including marine debris and nutrient pollution;
By 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse
impacts, including by strengthening their resilience, and take action for their restoration in order to
achieve healthy and productive oceans;
Increase scientific knowledge, develop research capacity and transfer marine technology, taking into
account the Intergovernmental Oceanographic Commission
Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to
enhance the contribution of marine biodiversity to the development of developing countries, in
particular small island developing States and least developed countries;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/3
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• Aware of estimates that tens of millions of tons of unexploded
chemical and conventional munitions are present in the marine
environment in the ASCOBANS Area, and that thousands of
fishermen and other sea users encounter such munitions every year;
• Further aware that knowledge of sites, types of munition and ways
of disposal (en route, item by item, in container or in hulls), state of
corrosion and quantities of dumped munitions is fragmentary, as are
meaningful data on the environmental impacts of munitions and
their constituents;
• Concerned that both chemical and conventional munitions present in
the marine environment, whether as unexploded ordnance (UXO) or
discarded military munitions (DMM), pose a threat to the health and
safety of humans as well as marine life, and that through corrosion
and chemical changes these devices might become more volatile,
thus increasing the danger of unexpected explosions;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/4
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• Further concerned that munitions are regionally point sources of pollution,
both as chronic contamination of the marine environment through leakages,
and sudden release of toxic substances through explosions;
• Also concerned that cetaceans are at risk through both chemical and physical
hazards posed by munitions, encompassing direct contact and possible
accumulation of toxic substances in their tissues, including through ingestion
of contaminated prey, as well as injury due to pressure and noise resulting
from explosions;
• Grateful for the work of OSPAR and HELCOM on this issue, and especially
welcoming the priority afforded this issue by HELCOM through the Expert
Group on Environmental Risks of Hazardous Submerged Objects
(SUBMERGED);
• Conscious that hearing is the primary sense for cetaceans and that damage
to auditory functions will affect the animals’ ability to hunt, communicate
and navigate, and therefore has direct relevance for their survival, welfare
and reproduction;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/5
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• Aware that research and modelling undertaken recently in the
Netherlands and Germany indicate that each year thousands of
harbour porpoises in the ASCOBANS Area are at risk of suffering
injury ranging from permanent shifts of their auditory threshold to
trauma to the ear caused by blast waves, and many more are at risk
of suffering from temporary threshold shifts;
• Recognizing that underwater munitions are an unquantified pressure
and further efforts are needed to understand the significance of its
impact on small cetaceans in the ASCOBANS Area and beyond;
• Emphasizing that the difficulty of proving detrimental effects to
cetaceans and their habitats necessitates a precautionary approach
in dealing with this issue;
• Further emphasizing that this is a global problem and a wider
environmental issue that requires attention and a targeted response
from a range of organizations and stakeholders, including policymakers;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/6
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The Meeting of the Parties to ASCOBANS
1. Encourages Parties to support research investigating the risk to marine animals
and habitats from underwater munitions, especially with respect to:
(a) identification and mapping of actual locations and contents of dump
sites;
(b) effects of disintegrating submerged munitions on the marine
environment and
marine life, for example, by monitoring or testing for chemicals and the products that
typically arise when chemical or conventional munitions degrade, or signs of
underwater detonations as a possible cause of death when conducting necropsies of
marine animals;
(c) analysing the risk of chemicals emanating from chemical or
conventional munitions to the marine food chain, especially considering that the
characteristics of their behaviour and distinctive acute toxicity in combination with
the underwater pathway of introduction sets them apart from the majority of manmade marine pollutants regarded hitherto;
(d) development of alternative ways of removal other than detonation,
paying close regard to safety of life at sea;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/7
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2. Further encourages Parties systematically to integrate
munitions detection programmes into all surveys of the sea floor (e.g.
MSFD benthic habitat mapping and assessment);
3. Further encourages Parties (i) to require all vessels under
their flag, when encountering underwater munitions, to notify relevant
national authorities, and (ii) to provide simple ways for submitting this
information and ensure that agreed OSPAR and HELCOM reporting
procedures are followed;
4. Recommends that all relevant information be made available
to regional and international organizations addressing this issue, such as
HELCOM and OSPAR and the United Nations Environment Programme
(UNEP), to facilitate coordinated responses;
5. Urges Parties to support efforts to address this threat in
other regional and international organizations and use their influence to
have this topic treated as priority in these fora;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/8
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6. Calls upon UNEP to investigate and address the
problem of underwater munitions on a global scale, bearing
in mind the implications for human health and safety, and
the conservation of protected species and their habitats;
7. Invites UNEP to consider creating a mechanism,
such as a joint task force which might include the Regional
Seas Conventions, the CMS Family and other relevant
intergovernmental organizations, to address this issue in a
coordinated fashion and facilitates knowledge exchange;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/9
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8. Recommends that based on work done, e.g. under the auspices of OSPAR,
HELCOM, NATO and national governments and involving all relevant stakeholders and
organizations, ideally under UNEP’s leadership, international guidelines for removal
of munitions be developed, which should cover inter alia:
(a) using a precautionary approach when choosing mitigation and removal
methods;
(b) taking into account wider environmental effects, potential negative
impacts for marine life, costs and risk to human health and safety, when deciding on
removal and choosing mitigation and removal techniques;
(c) advising on methods of removal other than targeted detonations;
(d) advising on alternative technologies such as the use of underwater
robotics, water abrasive suspension cutting or mobile detonation chambers and the
circumstances under which these might safely be applied;
(e) advising on possible mitigation techniques to be employed when no
alternatives to detonation are feasible, such as techniques to reduce the shock and
acoustic waves, dedicated visual and passive acoustic observation techniques to
increase detection of cetaceans and the additional use of acoustic deterrents to
reduce the risk of harm to marine mammals;
8th Meeting of the Parties to ASCOBANS
Resolution: Addressing the Threats from Underwater
Munitions/10
9. Further recommends that an international conference be held
on the issue, ideally under UNEP’s leadership in partnership with NATO,
ensuring that an overview of the status of knowledge and practices in
different parts of the world is gained and that cooperation can be fostered
for capacity-building;
10. Invites NATO and national armed forces to continue to take a
leading role in efforts to detect, categorize and remove, in the most
environmentally-friendly way feasible, any potentially hazardous
underwater munitions, and welcomes the planned workshop in October
2016 in Bulgaria;
11. Requests the Secretariat to collaborate with UNEP, HELCOM,
OSPAR and other relevant regional and international organizations in
addressing this issue; and
12. Requests the Advisory Committee to continue looking for new
available information on impacts of underwater munitions and their
removal on cetaceans and to make recommendations to Parties as
appropriate.
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Pentarius Deep Sub Project
Thank You
Terrance P. Long
Chairman
The International Dialogue on Underwater
Munitions (IDUM) &
International Technology Advisory Board (ITAB) on
Sea Dumped Weapons (SDW’s)
+31(0)629932932
[email protected]
www.underwatermunitions.org