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2 Management StrategiesLegal aspects of marine munitions’ management Noah Al-Malt - Terrance P. Long/ The International Dialogue on Underwater Munitions (IDUM) Goslar, Germany

3 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 scattered across the globe.

4 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.

5 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.”

6 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.

7 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.”

8 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: 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”).

9 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 …

10 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.

11 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.

12 The Chemical Weapons Convention Specifically Exempts from Coverage Munitions Dumped Before 1985/1Outside 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.

13 The Chemical Weapons Convention Specifically Exempts from Coverage Munitions Dumped Before 1985/2The Chemical Weapons Convention has one major flaw. It does not require states to declare chemical weapons dumped at sea before 1 January 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.

14 An International Agreement is Necessary/1While 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.

15 An International Agreement is Necessary/2In 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.

16 An International Agreement is Necessary/3As 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.

17 There is International Momentum Behind Developing an International Treaty for the Removal of Sea Dumped Chemical Weapons/1 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 Secretary-General 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.

18 There is International Momentum Behind Developing an International Treaty for the Removal of Sea Dumped Chemical Weapons/2 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.

19 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/1 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 on Further Steps to Abate Underwater Noise Pollution for the Protection of Cetaceans and Other Migratory Species;

20 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/2 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;

21 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/3 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;

22 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/4 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;

23 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/5 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 policy-makers;

24 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/6 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 man-made marine pollutants regarded hitherto; (d) development of alternative ways of removal other than detonation, paying close regard to safety of life at sea;

25 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/7 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;

26 8th Meeting of the Parties to ASCOBANSResolution: Addressing the Threats from Underwater Munitions/8 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;

27 8th Meeting of the Parties to ASCOBANS Resolution: Addressing the Threats from Underwater Munitions/9 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;

28 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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30 Pentarius Deep Sub Project

31 Thank You Terrance P. Long ChairmanThe International Dialogue on Underwater Munitions (IDUM) & International Technology Advisory Board (ITAB) on Sea Dumped Weapons (SDW’s) +31(0)