Diplomatic Law — Immunities — Legal Process — Service of Originating Documents on Foreign States

On 28 March 2014, the Legal Bureau circulated a diplomatic note to all diplomatic missions in Canada with respect to the service of originating documents on foreign states:

Fisheries Law — 2002 Yukon River Agreement

In 2014, the Legal Adviser wrote the following in response to a request for legal views regarding the 2002 Yukon River Agreement and, in particular, on whether certain requirements laid out in that agreement were legally binding as a matter of treaty law:

To begin, the 2002 Agreement effectively exempts Yukon River Salmon from the purview of the Pacific Salmon Commission (“PSC”), substituting the Yukon River Panel as the primary organ for the management of salmon under its purview. This is accomplished formally through Attachment “A” of the 2002 Agreement. The Panel’s relationship with other entities created or designated in the 2002 Agreement provides a substantive overview of the workings of the Agreement.

These other entities consist of:

• • a “management entity” designated by each party and responsible for the harvest of Yukon River Salmon (in the case of Canada the Department of Fisheries and Oceans (“DFO”) and by the USA, the Alaska Department of Fish and Game);

• • the “Joint Technical Committee” (established in 1985, the JTC was created through the Memorandum of Understanding annexed to the PST; from 1985 to 2002 it gathered data on the status of Yukon River Salmon for the Parties. Thereafter the Committee’s work was subordinated to the Yukon River Panel);

• • the Parties to the 2002 Agreement and the PST, Canada and the USA.

Attachment “B” to the 2002 Agreement establishes Yukon River Salmon as its own separate chapter to the PST, along with other chapters that deal with other salmon species and their geographic spawning regions. Additionally it creates the basic regime under which the species is to be managed.

International Economic Sanctions — UN Sanctions

In a legal opinion delivered on 7 February 2014, the Legal Bureau wrote:

The wording of Article 41 contemplates the ability to take actions beyond the blanket sanctioning of states or state actors. First, Article 41 refers to actions comprising “complete or partial interruption of economic relations.” It does not say that the economic relations have to be with the state itself, and it also anticipates that only a portion of any economic relations might be disrupted. Second, the article explicitly anticipates interrupting “rail, sea, air, postal, telegraphic, radio and other means of communication.” In many states, such enterprises are (and were, at the time of the drafting of the UN Charter) owned or controlled, in whole or in part, by private entities and individuals. It thus cannot be said that Article 41 only anticipates that actions will be taken against states.

Article 41 also does not indicate that the disruption of economic relations or other services can only be reactions to the actions of a state. The impetus for decisions taken under Article 41 is found in Article 39, the wording of which is clear that actions taken under Article 41 need not be limited to curtailing actions by states:

Article 39 allows the Security Council to determine the existence of any threat to the peace or breach of the peace, and to decide what measures shall be taken to maintain or restore international peace and security.

The possibility that non-state actors (including individuals) could be the target of such measures has been widely accepted and welcomed by UN member states. The UNSC has used Article 41 to take measures with direct effect on the liberty of individuals, such as the creation of ad hoc criminal tribunals. With respect to economic sanctions, UNSC practice has moved towards more “targeted” (rather than comprehensive) sanctions designed to mitigate collateral impacts and avoid humanitarian consequences as much as possible.

International Human Rights Law — International Covenant on Civil and Political Rights — Article 9

On 6 October 2014, the Government of Canada provided the following comments to the United Nations Human Rights Committee concerning Article 9 of the International Covenant on Civil and Political Rights (ICCPR):

1. 1. The Government of Canada appreciates the work of the Human Rights Committee in promoting human rights and wishes to thank the Committee for the opportunity to comment on Draft General Comment No. 35 on Article 9: Liberty and Security of Person (“the Draft General Comment”). ^{Footnote 1} Canada welcomes constructive dialogue and engagement between the United Nations treaty bodies and States parties on issues such as the content of General Comments ...

2. 3. Canada has six main areas of comment in relation to the Draft General Comment.

3. 4. The first is with respect to paragraph 57, which addresses States parties’ obligations under the ICCPR in the context of the removal of foreign nationals … Canada is of the view that it does not sufficiently emphasize the requirement of a real and personal risk for the individual subject to removal. Canada is also of the view that the paragraph does not make it sufficiently clear that it would be the removal – and not the treatment upon return – that would potentially constitute a violation.

4. 5. Canada would therefore suggest the following rephrasing of paragraph 57: “Returning an individual to a country where there are substantial grounds for believing that they face a real and personal risk of a severe violation of liberty or security of person amounting to inhuman treatment, such as prolonged arbitrary detention, may amount to a real risk of irreparable harm constituting a violation of Article 7 of the Covenant.”

5. 6. Canada’s second area of comment is on paragraph 62 of the Draft General Comment, which addresses the territorial scope of Article 9 in light of Article 2(1) of the ICCPR. Canada would insist on the language of Article 2(1): “all individuals within its territory and subject to its jurisdiction” in the first sentence.

6. 7. In the second sentence of paragraph 62, Canada is unable to agree that the test is “effective control over the person.” The State in whose territory the detention occurs retains the obligations to respect and to protect Article 9 rights against arbitrary detention by another State within its territory. Canada would therefore suggest a rephrasing of the second sentence of paragraph 62, to remove the reference to “effective control.” In the third sentence, the Committee may indicate its view that States parties “should not arbitrarily or unlawfully arrest or detain individuals outside their territory.” Canada would remove the fourth sentence of paragraph 62.

7. 8. Canada’s third area of comment is on paragraphs 7 and 8 of the Draft General Comment. Paragraph 7 mixes the analysis of State and non-State action … In Canada’s view, the Draft General Comment would benefit from a more careful articulation of States parties’ obligations to take reasonable measures to protect individuals from threats to their security of the person by non-State actors, as distinct from the discussion of Article 9 as it applies to governmental action. In the same vein, Canada does not view the examples in paragraphs 7 and 8 as providing clear or consistent guidance to States parties on the scope of their obligations with respect to State and non-State action.

8. 9. Canada notes the statement in paragraph 7 that States parties “should also prevent and redress unjustifiable use of force in law enforcement” … Canada is of the view that in this instance the use of “should” is an incorrect statement of States parties’ obligations under the ICCPR, for example as defined in Articles 2(1) and 2(3). Rather, States parties “must take measures to prevent and redress unjustifiable use of force in law enforcement.”

9. 10. Canada is unable to agree with the vague statement in paragraph 8 that States parties “should do their utmost to take appropriate measures to protect personal liberty against the activities of another State within their territory.” In Canada’s view, a clearer and more correct statement would be that a State party “must take measures to ensure its officials do not acquiesce or participate in abuses committed by another State’s officials in the State party’s territory.”

10. 11. Canada’s fourth area of comment relates to international humanitarian law. Consideration of obligations under Article 9 must take into account the fact that international humanitarian law is the lex specialis in factual situations of armed conflict and therefore the controlling body of law in armed conflict. Due weight must be given to the controlling body of law throughout the Draft General Comment. Alternatively, the references to the application of Article 9 to situations of armed conflict should be removed.

11. 12. Fifth, Canada has difficulties with the discussion of security detention in paragraph 15. Canada is concerned by the suggestion that international humanitarian law only applies to international armed conflicts. The relevant international humanitarian law rules governing detention, prosecution and any remedy available to the individual will govern in the case of armed conflict, whether international or non-international. Therefore Canada would replace “international armed conflict” with “armed conflict” in the second sentence. Likewise, in the fifth sentence of paragraph 65, Canada would replace “international armed conflict” with “armed conflict” …

12. 13. Canada sees no basis at international law for the statement that security detention “would normally amount to arbitrary detention” for the sole reason that “other effective measures of addressing the threat, including the criminal justice system, would be available.” In both international and non-international armed conflicts, a State may detain enemy combatants consistent with the law of armed conflict until the end of hostilities. Canada would not agree with the proposition that, in an armed conflict situation, conduct that is otherwise lawful under international humanitarian law is rendered unlawful simply because law enforcement mechanisms continue to operate effectively. Similarly, to the extent that paragraphs 15 and 66 are intended to address detention in situations of armed conflict, Canada would not agree that, in all cases, there is a “right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention” in situations of armed conflict.

13. 14. Canada’s sixth area of comment concerns derogation. Article 4(2) explicitly lists the ICCPR articles that are non-derogable. Canada accepts that any derogations from a State party’s obligations under the Covenant must always be consistent with Article 4(1) of the Covenant, which requires that any derogation be “strictly required by the exigencies of the situation” and “not inconsistent with their other obligations under international law,” including international humanitarian law as applicable. Canada also accepts that States parties may not invoke Article 4 as justification for acting in violation of international humanitarian law or peremptory norms of international law. Canada is unable to agree, however, with the sweeping proposition in paragraph 65 that: “The fundamental guarantee against arbitrary detention is non-derogable.” Article 9 is not included in Article 4(2), and Canada considers that there is insufficient evidence to establish that there is a rule of jus cogens in respect of the right not to be subject to arbitrary detention. Additionally, Canada sees no basis in international law for the standard of “necessity and proportionality” proposed in paragraph 65.

14. 15. More generally … Canada recommends clarifying the text to ensure that a consistent approach is used for detention in the criminal law context and for detention in the non-criminal context … Canada also recommends consistency with the ICCPR terms …

15. 16. Canada assumes that paragraphs 31 and 40 are not intended to discuss detentions in the context of situations of armed conflict and would recommend more precise terms for the discussion of offences under military law. In paragraph 31, Canada suggests “military prosecutions that are criminal rather than disciplinary in nature” in the second sentence. This clarification would recognize that “military prosecutions” in respect of minor disciplinary offences are outside the scope of Article 9(3), while recognizing that military offences which are truly criminal in nature are captured by Article 9(3). In paragraph 40, Canada would suggest “detention in connection with offences under military law,” rather than “military detention.”

16. 17. In paragraph 26, Canada does not accept that explicit notification of the reasons for arrest could be “superfluous.” Anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest, even if those reasons are “evident” or this information may appear “superfluous” in the circumstances.

17. 18. In paragraph 45, the reference to “disciplinary detention of a soldier on active duty” is under-inclusive. It would be preferable to refer to “disciplinary detention of an individual who is subject to the jurisdiction of military tribunals” so as to include all those who fall within military jurisdiction at various times. Canada, amongst other States, currently has, and exercises, military jurisdiction over reserve force members and civilians in limited circumstances, such as civilians accompanying the armed forces.

18. 19. Canada respects the importance of ensuring that all individuals arrested on criminal charges appear before a judge or justice of the peace. In Canadian practice, both civil and military, first appearances are frequently conducted by video conference. Appearance by video conference provides safeguards against ill-treatment and ensures a prompt judicial review of the legality or necessity of detention. In Canada’s experience, it reduces the hardships and risks for the individual, particularly during transportation. Therefore, Canada recommends that the Committee mention the merits of appearance by video conference in paragraph 34.

International Trade Law — World Trade Organization (WTO) — Proper Legal Test to Be Applied under the Chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT)

In a submission dated 24 January 2014 to the WTO Appellate Body in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Canada argued:

Despite the substantial jurisprudence available, the Panel made its ruling under the chapeau without applying the interpretative approach set out in that jurisprudence. The Panel committed an error in law by relying solely on the Legitimate Regulatory Distinction (“LRD”) test it had devised under Article 2.1 of the Technical Barriers to Trade Agreement (“TBT”) — a test, furthermore, that Canada has already shown to be incorrect as a matter of law. Further, the Panel erred by not providing any reasoning on how the LRD test under TBT Article 2.1 conforms with the “three types of situations” that the Panel identified could lead to a finding of inconsistency with the chapeau. ^{Footnote 3}

The Panel specifically failed to adequately explain why its analysis under Article 2.1 of the TBT regarding the legitimacy of the IC and MRM exceptions was relevant and applicable to its assessment of “exceptions for its consistency with the requirements under the chapeau.” ^{Footnote 4} Although the Appellate Body has observed that the TBT and the GATT 1994 “overlap in scope and have similar objectives,” ^{Footnote 5} and even if the Panel was correct in concluding that they have a “close relationship,” ^{Footnote 6} this is not a sufficient basis to import the results of the LRD test directly into the analysis of the chapeau requirements. This error is compounded when, in doing so, the Panel ignores crucial elements of the test for arbitrary or unjustifiable discrimination, such as the requirement that the rationale for the discrimination not undermine the objective of the measure.

Further, the Panel failed to provide a valid explanation why it was of the apparent view that the LRD test is not only directly applicable but actually replaces the test applied specifically to the chapeau requirements established by the WTO Appellate Body. The Panel did not provide any comparison between the texts of the TBT and GATT Article XX to support the application of the LRD test to its chapeau analysis.

The wording of the chapeau contains similar wording to what is found in the sixth recital of the preamble of the TBT. The Appellate Body looked to the chapeau in developing the principle that a regulatory distinction cannot be designed and applied in an even-handed manner when it is designed or applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination. ^{Footnote 7} Yet, there is no explanation, and it would appear to be counterintuitive, that the wording of the sixth recital of the preamble of the TBT, created in 1994, should affect the interpretation of the chapeau requirements of Article XX, which dates back to 1947. Further, it is curious that the LRD test, which is the product of an interpretation of TBT Article 2.1 rather than something expressed in the text of Article XX, would supplant the chapeau requirements that explicitly use the “arbitrary and unjustifiable discrimination” language. The Panel merely referred to the general relationship between the TBT and the GATT as observed by the Appellate Body. ^{Footnote 8} The Panel thus committed an error in legal reasoning by failing to satisfactorily explain why the analysis under Article 2.1 is applicable to the chapeau.

Ultimately, the Panel failed to properly apply the rules of treaty interpretation set out in the VCLT. This includes an assessment of the ordinary meaning of the chapeau in its context and in the light of its object and purpose. ^{Footnote 9} Although the sixth recital in the preamble of the TBT contains similar language to the chapeau, the Panel did not establish a need to refer to the sixth preamble to interpret the chapeau requirements. The meaning of the chapeau requirements is clear, as set out in the WTO jurisprudence. The Panel did not have a proper basis under the customary international law rules of treaty interpretation to read into the text of the chapeau requirements the LRD test applicable to another agreement.

In addition, there is no concern with conflicting obligations under the TBT and the GATT, or a need to ensure that Article 2.1 and the chapeau are interpreted in a coherent and consistent manner, ^{Footnote 10} that would warrant the application of the LRD test to the chapeau. Absent a specific problem of incoherency, there is no reason to invoke the analysis under the LRD test for the analysis under chapeau requirements rather than applying the requirements themselves ...

The Panel’s analysis under Article 2.1 wrongly examines the rationale for the discrimination “despite the absence of a connection” ^{Footnote 11} to the objective of the EU Seal Regime. According to the Appellate Body, a rationale that purports to explain discrimination cannot be justified under Article XX where there is no rational connection to the objective or if it goes against the objective. ^{Footnote 12} If the measure is applied in a manner that “goes against,” that is, undermines, the identified objective, the measure “constitutes arbitrary or unjustifiable discrimination.” ^{Footnote 13} Thus the Panel’s LRD test under TBT Article 2.1 cannot simply be substituted for the rational connection test developed by the Appellate Body for the chapeau analysis.

International Trade Law — WTO — Proper Interpretation of Articles I:1 and III:4 of GATT

In a submission dated 11 February 2014 to the WTO Appellate Body in European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Canada argued:

The European Union relies on comments made by the Appellate Body in Dominican Republic – Import and Sale of Cigarettes and EC – Asbestos to support its argument. However, the European Union’s interpretation of the jurisprudence is incorrect.

With respect to Dominican Republic – Import and Sale of Cigarettes, the European Union refers to the Appellate Body’s comment that:

However, in US – Clove Cigarettes, the Appellate Body clarified this statement, rejecting an argument made by the United States that is very similar to the one being made by the European Union in its other appellant submission:

In other words, the statement by the Appellate Body in Dominican Republic – Import and Sale of Cigarettes cannot be interpreted, in the case of Articles I:1 and III:4, as requiring panels to inquire into the rationale of a measure causing a detrimental impact in a manner similar to the LRD test under Article 2.1 of the TBT Agreement.

Further, the Appellate Body in US – Clove Cigarettes noted that, in Thailand – Cigarettes (Philippines), after finding a detrimental impact under Article III:4, it “eschewed an additional inquiry as to whether such detrimental impact was related to the foreign origin of the products or explained by other factors or circumstances”. ^{Footnote 17}

Thus, in US – Clove Cigarettes, the Appellate Body found that the “‘treatment no less favourable’ standard of Article III:4 of the GATT 1994 prohibits WTO Members from modifying the conditions of competition in the marketplace to the detriment of the group of imported products vis-à-vis the group of domestic like products”. ^{Footnote 18}

In contrast, the Appellate Body has been clear that with respect to Article 2.1, “the context and object and purpose of the TBT weigh in favour of interpreting the ‘treatment no less favourable’ requirement of Article 2.1 as not prohibiting detrimental impact on imports that stems exclusively from a legitimate regulatory distinction”. ^{Footnote 19}

Therefore, the Appellate Body has rejected the idea that, under Article III:4 of the GATT 1994, an additional inquiry into whether the detrimental impact was related to the foreign origin of the products or explained by other factors must be undertaken. Further, the Appellate Body has clarified that under Article 2.1, it is the context, object and purpose of the TBT, including, prominently, the absence of a general exceptions clause, that lead to the conclusion that an additional inquiry as to whether the detrimental impact stems from a legitimate regulatory distinction should be undertaken. Thus, the Appellate Body has articulated two distinct tests, with the LRD element only applicable to Article 2.1 of the TBT.

International Trade Law — WTO — Interpretation of the Term “Public Body” under Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Measures (SCM Agreement)

In a third party submission dated 3 September 2014 to the WTO Appellate Body in United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India, Canada argued:

Canada’s position according to which an entity controlled by the government (either through whole or majority ownership) constitutes a “public body” is consistent with the ordinary meaning of the expression, the context of Article 1.1(a)(1), and the object and purpose of the SCM Agreement. This position gives sense to the reference to the term “public body” in Article 1.1(a)(1). Moreover, it ensures that the disciplines of the SCM Agreement are given a sufficiently broad scope in terms of the entities to which they apply.

The Appellate Body indicated in US – Anti-Dumping and Countervailing Duties (China) that the dictionary definitions of the words that are combined to create the composite term “public body” in English, French, and Spanish accommodate a broad range of potential meanings. ^{Footnote 20} These definitions permit the interpretation of the term advocated by Canada.

Canada’s interpretation gives sense to the reference to “public body” in Article 1.1(a)(1) because it maintains the effet utile of the term and distinguishes it from a “private body” entrusted or directed by a government under Article 1.1(a)(1)(iv).

Pursuant to India’s interpretation, where an entity is vested with governmental authority and sells goods, its actions would constitute a financial contribution by a “public body” under Article 1.1(a)(1)(iii). However … India’s interpretation of the term “public body” would essentially make the term inutile. Such an interpretation would be contrary to basic principles of treaty interpretation as reflected in the Appellate Body’s admonition not to interpret treaties so as to reduce their terms to inutility. ^{Footnote 21}

Moreover, India’s interpretation would allow circumvention of the SCM Agreement because it would permit the government to easily avoid its disciplines. Indeed, a government could simply have entities it controls perform the functions listed under Article 1.1(a)(1) instead of performing them itself. Such an interpretation would defeat the object and purpose of the SCM Agreement.

For the above reasons, Canada respectfully submits that, in this instance, a clarification of the meaning of the term “public body” in Article 1.1(a)(1) of the SCM Agreement is warranted.

In the alternative, Canada submits that the Appellate Body should endorse the Panel’s finding that the evidence on the record supported the USDOC’s determination that the NMDC constitutes a public body.

Canada notes that, in upholding the USDOC’s determination that the NMDC is a “public body,” the Panel relied not only on the Government of India’s shareholding in the NMDC but also on other indicia of government control such as the appointment of directors and information indicating that the NMDC was under the “administrative control” of the Government of India. ^{Footnote 22}

Canada submits that the indicia identified by the Panel in reviewing the USDOC’s determination with respect to the NMDC are sufficient when combined with state ownership to properly determine that an entity is a “public body.”

International Trade Law — WTO — Proper Legal Test Applied under TBT Article 2.2

In a submission dated 12 December 2014 to the WTO Appellate Body in United States – Certain Country of Origin Labelling (COOL) Requirements: Recourse to Article 21.5 of the Dispute Settlement Understanding (DSU), Canada argued:

International Treaty Law — Differences between Legally Binding and Non-Legally Binding Instruments

In 2014, the Legal Adviser wrote:

A treaty is a legally binding international agreement concluded between states, in written form, and governed by international law (see Article 2.1(a) of the VCLT). A treaty may also be referred to as a “convention,” “agreement,” “protocol,” or some other similar word. Treaties can be bilateral (between two countries), multilateral (between three or more countries and generally developed under the auspices of international organizations), or plurilateral (generally entered into between one State and a group of States). Treaties can only be entered into by an entity having international legal personality (e.g., States, international organizations). In Canada, the jurisdiction to enter into such agreements, to legally bind Canada, rests with the Federal government.

One of the tasks of the Treaty Law Division is to explain the legal difference between a treaty and a Memorandum of Understanding (MOU). A non-legally binding instrument, or MOU, is an arrangement or understanding between governments regarding certain matters that do not create formal international legal obligations between states and therefore are not governed by international law. The provisions of an MOU should be expressions of intent rather than obligations. Canada uses non-legally binding instruments in international relations to express political and moral commitments. As MOUs are not legally binding, they can be concluded between States; between respective government departments and agencies of States, and between a State’s sub-entities (e.g. a state, province or territory) and a foreign State. As some States in certain instances consider MOUs to be binding, it is important that all of the participants involved in the negotiation of a non-legally binding instrument are of the understanding that the instrument will be non-legally binding in nature.

Oceans Law — Conservation and Sustainable Use of Marine Biological Diversity

At the April 2014 Meeting of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, the Canadian delegation delivered the following opening statement:

Conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction is important. Canada has been, and continues to be, a strong supporter of conservation efforts in regional and global fora. For example, at the International Maritime Organization (“IMO”), Canada supports the establishment of a robust Polar Code which would set technical requirements for safety and environmental protection for ships operating in the Arctic and is an active, constructive participant in ongoing negotiations. In the International Commission for the Conservation of Atlantic Tuna (“ICCAT”), Canada has put forward proposals for recommendations that would mandate the application of a precautionary and ecosystem approach to fisheries management within the Convention area. And in the Northwest Atlantic Fisheries Organization (“NAFO”), Canada has played a leadership role in the adoption of a suite of measures to promote sustainable use of marine biodiversity in areas beyond national jurisdiction, including comprehensive stock management plans based on the precautionary approach, targeted measures to minimize bycatch and the establishment of an evergreen ecosystem roadmap for the Organization. In fact, NAFO has implemented the most complete program to manage impacts on vulnerable marine ecosystems in areas beyond national jurisdiction in the Northwest Atlantic. In addition, based largely on Canadian proposals, NAFO has closed 13 areas to protect important concentrations of various species of cold water corals, sponges and sea pens. Protection zones have been established for five seamount areas, along with provisions for fishing vessels that encounter vulnerable marine ecosystems and avoidance rules. All of these measures have been established using sound scientific advice, based on a multilateral research initiative, led in part by Canadian scientists.

Canada is of the opinion that States have a responsibility to devote stronger efforts to the effective implementation of existing international instruments and mandates and to increasing the number of adherents to those instruments. An extensive suite of rights and obligations already exists, and, in our view, their effective implementation could have a significant and immediate effect on the conservation and sustainable use of marine biodiversity beyond national jurisdiction. In this regard, Canada would urge States to continue their conservation and sustainable use efforts in existing fora.

We would not want to see existing instruments, such as the UN Fish Stocks Agreement, and conservation processes undertaken within their purview adversely affected by a new instrument, nor that achievements obtained in other fora be diluted by a new instrument. We must be careful not to allow progress already achieved to be undermined by expectations of different future outcomes, as it is not clear that such outcomes would be better than what we have already put in place.

In addition, we must realize that activities in the realm of marine genetic resources are nascent and capable of quick evolution. We must take care not to create complex international processes or bodies that risk being quickly rendered obsolete or irrelevant and therefore ineffective.

Negotiators of UNCLOS were successful in striking a careful balance between competing uses of the oceans, and this same approach must guide us in our consideration of this issue. This balance of rights and duties must be preserved. The conservation and sustainable use of biodiversity in areas beyond national jurisdiction requires an integrated approach to management, one that takes into account humanity’s reliance on natural resources, while maintaining the biological richness and ecological processes necessary to sustain marine ecosystems. For any conservation and sustainable use efforts to be effective all stakeholders must be engaged on the issue. All stakeholder views must be taken into account and the issues examined from a variety of viewpoints, including environmental, economic, scientific and legal perspectives. Existing expertise from those currently engaged in regulating maritime activities are important to recognize and take into account.