Significant Issues and Developments for 2013


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The Contracting Parties to the London Protocol Approve an Amendment to Regulate Ocean Fertilization and Other Marine Geo-Engineering Activities (October 18, 2013).

On October 18, 2013, those Contracting Parties to the London Protocol (LP) present at the weeklong annual meeting of the Parties unanimously approved an amendment to regulate ocean fertilization as well as other marine geo-engineering activities.  Resolution LP.4(8).  The LP Parties were motivated, at least in part, by an ocean fertilization incident that occurred in July 2012 when a Canadian-flagged vessel dumped 100 tons of iron sulphate and 20 tons of iron oxide into the northern Pacific Ocean just beyond the Canadian EEZ, apparently to stimulate fish stocks and potentially to sequester carbon.  The U.S. position on the amendment was that it should not be adopted because the definition of marine geo-engineering it contained was overly broad and encompassing. The U.S. was of the view that the amendment should be limited to ocean fertilization and should not contemplate other, yet-to-be-identified forms of marine geo-engineering.  Although LP parties Japan and Germany and LP non-parties Russia and Argentina also sought to restrict the scope of the definition of marine geo-engineering, all LP Parties present at the annual meeting ultimately supported the amendment.  The EU countries, in particular, led the advocacy for the amendment, and China also voiced strong support.  The amendment provides for regulation of new forms of marine geo-engineering by means of the listing of assessed techniques in a new LP annex, which can be revised much more rapidly than the LP itself.  The annex is included with the amendment.  Ocean fertilization is currently the only marine geo-engineering activity listed in this new LP annex.  The amendment will enter into force 60 days after two thirds of the LP Parties have deposited an instrument of acceptance of the amendment with International Maritime Organization.  (The London Protocol currently has 43 Parties.)

IMO Press Release (18 October 2013)

NOAA Confirms Wreck is 19th Century U.S. Coast Survey Steamer Robert J. Walker (August 27, 2013)

More than 153 years after it was lost in a violent collision at sea, government and university maritime archaeologists have identified the wreck of the ship Robert J. Walker, a steamer that served in the U.S. Coast Survey, a predecessor agency of NOAA. NOAA Press Release. The U.S. Coast Survey is NOAA's oldest predecessor organization, established by President Thomas Jefferson in 1807 to survey the coast and produce the nation's nautical charts. In 1860, as the Civil War approached, the Coast Survey redoubled efforts to produce surveys of harbors strategically important to the war effort along the Gulf and Atlantic coasts. Twenty of the sixty-six crew members died when the Walker sank in rough seas in the early morning hours of June 21, 1860, ten miles off Absecon Inlet on the New Jersey coast. The sinking was the largest single loss of life in the history of the Coast Survey and its successor agency, NOAA. The Walker wreck site initially was discovered in the 1970s by a commercial fisherman. The wreck's identity has been a mystery despite being regularly explored by divers. Resting 85 feet underwater, the vessel's identity was confirmed in June as part of a private-public collaboration that included research provided by New Jersey wreck divers; Joyce Steinmetz, a maritime archaeology student at East Carolina University; and retired NOAA Corps Capt. Albert Theberge, chief of reference for the NOAA Central Library. Observations from NOAA's Maritime Heritage Program's diving team confirmed the identity of the Walker wreck. See MHP Webpage. NOAA was able to confirm the identity of the Walker using various criteria, including the ship's unique paddlewheel flanges. Since then, the International and Oceans and Coasts Sections of NOAA GC have assisted in identifying the laws and policies that apply to U.S. Government vessels and property, and are of the view that they apply to the Walker. Additional, as a sovereign immune vessel, the Walker it is immune from arrest under the maritime law of salvage. See FAQs.

Digest of Policy Drivers for NOAA’s International Engagement (August 1, 2013).

The International Section has prepared a digest of Digest of Policy Drivers. The directives and planning documents described in the digest offer a set of precise roadmaps pointing the way toward accomplishment of various aspects of NOAA’s mission and goals, particularly with reference to NOAA’s international engagements. The digest has three subdivisions. The first subdivision contains documents and planning tools issued by the President to give direction in the achievement of specific aspects of NOAA’s mission or to direct the Agency’s attention and resources toward achievement of specific administration policy or global commitments. They include Executive Orders, Presidential Decision and Review Directives, and focused Executive Office strategic planning tools. The second subdivision contains brief descriptions of Department- and NOAA-wide strategic planning documents. The final subdivision contains descriptions of NOAA line office strategic plans which translate legislative mandates and policy directives into a clear path forward to measurable success. These plans are continually subject to revision, making this digest likewise subject to periodic update.

The International Tribunal for the Law of the Sea Delivers its First Judgment in a Case Involving Underwater Cultural Heritage -- the M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain (May 28, 2013)

The International Tribunal for the Law of the Sea (ITLOS) in its first case concerning underwater cultural heritage (UCH) ruled in favor of Spain in its seizure of M/V "Louisa" (a vessel flagged by Saint Vincent and the Grenadines) to enforce Spain's underwater cultural heritage law in the Port of Santa María, Spain. See Judgment and Press Release. ITLOS dismissed the case on jurisdictional grounds, disagreeing that the M/V Louisa, a vessel flying the flag of Saint Vincent and the Grenadines, was detained and arrested in a manner inconsistent with Law of the Sea Convention articles 73 (Enforcement of laws and regulations of the coastal State); 87 (Freedom of the high seas); 226 (Investigation of foreign vessels); 227 (Non-discrimination with respect to foreign vessels); and 303 (Archaeological and historical objects found at sea). The Director of NOAA's Maritime Heritage Program, Dr. James Delgado, served as an expert witness on UCH in the case (pro bono and in his personal capacity), testifying to refute claims that the M/V Louisa was engaged in oil and gas exploration under a Marine Scientific Research permit. Dr. Delgado spoke to the importance of UCH, the damage to archaeological resources done by the M/V Louisa's crew, and the cultural and archaeological significance of UCH in the Bay of Cadiz.

NOAA report examines threat to marine environment from wrecks (May 20, 2013)

On May 20, 2013, NOAA presented the U.S. Coast Guard a report on potentially polluting wrecks scattered across the U.S. seafloor that pose a threat to the marine environment and the nation’s coastal and marine resources. The report, part of NOAA’s Remediation of Underwater Legacy Environmental Threats (RULET) project, identifies the location and nature of potential sources of oil pollution from sunken vessels. The report also provides a chapter on the framework of laws and issues that may apply to particular wrecks and activities directed at them. The International Section of NOAA General Counsel drafted this legal section in consultation with counsel from other agencies.

Comprehensive Digest of Statutory Authorities for NOAA’s International Activities and Engagements (April 24, 2013)

NOAA GC’s International Section has prepared and posted on its website a digest of federal statutes which contain an authorization or direction to the Secretary of Commerce or to the NOAA Administrator to undertake international activities or to engage with foreign governments on matters relating to NOAA’s mission. This digest identifies seventy-three (73) discrete statutes, each containing an international nexus, each in some way bringing NOAA into direct contact with the governments, the regulatory and enforcement agencies, and the legal and scientific experts of other nations for the purpose of conserving and managing the treasures of the natural and cultural environment. Most of the statutes (37) relate to the mission of the National Marine Fisheries Service (NMFS); eighteen relate to the National Ocean Service (NOS); eleven relate to the National Weather Service, the National Environmental Satellite, Data, and Information Service and the Office of Oceanic and Atmospheric Research (NWS, NESDIS, and OAR) collectively; and there are seven statutes of a more general purpose, which authorize relevant outreach efforts by unspecified federal agencies. Each is described first in terms of its overall purpose and scope, and then in a series of subparagraphs which identify and discuss NOAA’s specific authority to engage in the international arena. In a number of instances, the digest includes references to Executive Orders and Presidential Decision Directives where the President has exercised discretion given him to delegate international functions and responsibilities to the Secretary of Commerce or directly to NOAA.

This digest will remain a work-in-progress as new laws are enacted and existing laws are amended.

Arctic Council Working Group on the Protection of the Arctic Marine Environment Addresses Shipping and Other Environmental Governance Issues at its February 2013 Meeting. (February, 2013)

The Arctic Council’s Working Group on the Protection of the Arctic Marine Environment (PAME) met in Finland 12-14 February 2013 for its last semi-annual meeting before the biennial Arctic Council Ministerial Meeting taking place in Kiruna, Sweden on May 15. The Arctic Council is a high-level intergovernmental forum established to promote cooperation, coordination, and interaction among the eight Arctic States. PAME, one of the six working groups of the Arctic Council, is the focal point of the Arctic Council’s activities related to the protection and sustainable use of the Arctic marine environment. At its meeting in February, PAME finalized its second progress report – covering the period 2011-2013 – on implementation of the 2009 Arctic Marine Shipping Assessment (AMSA) Report that provides a guide for action by the Arctic Council, Arctic states, and other stakeholders to improve the safety and minimize the adverse environmental impacts of Arctic shipping. PAME also provisionally finalized a draft of the Arctic Ocean Review (AOR) Report, which is the culmination of a four-year project to assess global and regional measures in place for the protection of the Arctic marine environment, identify gaps in and opportunities for strengthening those measures in light of evolving trends, and make recommendations to the Arctic States for addressing those gaps or weaknesses. The AOR Report and its recommendations will be taken up at the May Arctic Council Ministerial Meeting.

New Regulations Adopted by the International Maritime Organization (IMO) to Improve Energy Efficiency of International Shipping and Reduce Pollution to the Marine Environment Enter into Force (January 1, 2013)

On January 1, 2013, amendments to the International Convention for the Prevention of Pollution from Ships (MARPOL) entered into effect. The IMO-adopted amendments seek to further reduce pollution in the marine environment and improve energy efficiency of international shipping. Amendments to MARPOL Annex IV, which regulates ship discharges of sewage, authorize the designation of "Special Areas" where more stringent discharge restrictions for passenger ships may be applied, and designate the Baltic Sea as the first Special Area established under the Annex. The revised MARPOL Annex V, which regulates garbage, establishes a more environmentally protective regime for the discharge of ship-generated garbage by instituting a "reverse list" approach whereby the disposal of such garbage into the sea is banned unless explicitly provided otherwise in the Annex. Exceptions to the general prohibition include food wastes and cargo residues, both of which must meet distance-from-land discharge limits. Unless determined to be harmful to the marine environment, cleaning agents and cargo residues may be discharged. Additional notable amendments to Annex V include discharge requirements for animal carcasses and a safety exception allowing the discharge of fishing gear to protect the marine environment or for the safety of the ship or crew. Finally, Annex V amendments update the regulations governing discharge of garbage in special areas. Amendments to Annex VI, which regulates ship emissions, include the first ever mandatory global greenhouse gas reduction regime for an international industry sector. The amendments require new ships to adopt the Energy Efficiency Design Index for new ships and the Ship Energy Efficiency Management Plan for all ships. Amendments to Annex VI also designate particular Atlantic and Pacific coastal waters adjacent to Puerto Rico and the Virgin Islands as the U.S. Caribbean Emission Control Area (ECA) to further control emissions of nitrogen oxides, sulphur oxides, and particulate matter. The U.S. Caribbean Sea ECA does not take effect until January 1, 2014.

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