Climate Change and Guidelines for Argo Profiling Float Deployment on the High Seas

Introduction

States often recognize a need for international legal regulation over new areas of activity. In many circumstances such regulation takes the form of soft-law guidelines or codes of conduct.[1] However, the law of the sea remains affected by an age-old controversy among scientists and diplomats over the dichotomy between "freedom versus regulation." In the conduct of oceanic research activities with new technologies, instruments, and equipment, a fierce resistance to legal regulation of the high seas coexists in an uneasy compromise with a fierce protection of coastal States' sovereign rights to explore and exploit the natural resources of the continental shelf and the Exclusive Economic Zone (EEZ).[2]

The deployment on the high seas by States or international organizations of Argo profiling floats epitomizes this controversy. The Argo Project is an array of 3255 (as of March 23, 2010) active free-floating ocean monitoring devices.[3] Its worldwide scope calls for some form of international legal regulation, because it employs thousands of voluntary observing ships and ships of opportunity, as well as tide gauges, surface drifters, sub-surface drifters, moored buoys, and profiling floats that may drift into national EEZs.[4] Argo floats are deployed to collect a large database of ocean signals related to climate change[5] and provide in situ satellite observations of the Earth System as a whole, while protecting life and property, predicting climate variations and severe weather, collecting, storing, and distributing data and information freely to all interested users in near-real time.[6]

In June 2008, the Executive Council of the Intergovernmental Oceanographic Commission of UNESCO (UNESCO/IOC), after extensive debate by members of the IOC Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS), adopted Guidelines for the legal regulation of Argo Profiling Float Deployments on the High Seas.[7] The Guidelines generated such controversy among IOC/ABE-LOS members that some recommended that this body be disbanded. In June 2009, the IOC Assembly confirmed the value, progress, mandate, achievements, and opportunities for future activities by the IOC/ABE-LOS and its key role in soft law implementation of the Guidelines. In June of this year, at its 43rd Session, the IOC Executive Council is scheduled to review IOC/ABE-LOS and to "agree to its future mandate and means of operation," while also receiving updates from the Intergovernmental Coordination Groups for Tsunami Warning and Mitigation Systems for the Pacific Ocean, the Indian Ocean, the North-Eastern Atlantic, the Mediterranean and connected seas, as well as the Caribbean and Adjacent Regions.[8] The outcome of this review will prove critical for the role of the IOC in the implementation of the Guidelines, and it may have a potential impact on integration and the effective legal regulation of the scientific work of these groups. This Insight outlines the relevance of the Guidelines and the role of the Argo Project in monitoring climate change.

I. Argo's Institutional Architecture and International Law Relevance

The Argo float deployment began in 2000 and was completed in 2007.[9] The project emerged in the late 1980s as part of the World Climate Research Program and its two leading components: the World Ocean Circulation Experiment (WOCE)[10] and the Climate Variability and Predictability Project (CLIVAR).[11] It is also a direct heir to WOCE, which concluded in 2002 with the publication of large sets of high quality oceanographic data and an expected steady flow of results still under analysis.

CLIVAR is the first scientific program designed to study climate variability in decade-to-century time scales and to attribute causes to climate change.[12] When the Argo project was launched in May 2001, it was characterized by its focus on El Niño/Southern Oscillation.[13] It was suggested that the impact of a bad El Niño year could cause serious economic damage through flooding to the agricultural sector and coastal communities. Argo was designed to predict the effects caused by the storage of vast amounts of heat in the oceans and explain how this heat is transported by ocean currents, thus providing a better understanding of other basin-scale oceanic phenomena with global impact, such as hurricanes, abundance of fish, coastal circulation and movement of pollutants and industrial waste, and the global absorption of carbon by the oceans. It was anticipated that the results of Argo Program observations would apply to food and water distribution, energy, and coastal security against sea level rises.[14]

The Argo Program is the largest pilot project within the Global Ocean Data Assimilation Experiment (GODAE), itself a component of the Global Ocean Observing System (GOOS).[15] GOOS uses high precision oceanographic altimetry to monitor the oceans and is a joint project of the International Council for Science, the United Nations Environmental Programme, the World Meteorological Organization (WMO), and the IOC of United Nations Educational, Scientific and Cultural Organization (UNESCO). These organizations embraced the Argo project in response to demands voiced at the 2002 World Summit on Sustainable Development (WSSD). The WSSD Implementation Plan is rooted in the 1972 Stockholm Declaration on Human Environment—an instrument that has served as the environmental yardstick over the last thirty years—and calls for a significant increase in the use of both in situ observations and satellite-based observations of the Earth system. The latter includes a global ocean observing and information system for oceanic and atmospheric forecasting, for ocean and coastal zone management by coastal nations, and for global environmental change research. The Plan also calls for the provision, in support of sustainable development, of information based on such observations, pursuant to Agenda 21 of the United Nations Conference on Environment and Development.[16]

Argo project activities were also endorsed by the Fourth Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC).[17] The parties to the Convention committed to engage in the collection, processing, and control of data provided by global and systematic meteorological, atmospheric, terrestrial, space-based, and oceanographic observation activities.[18] Argo floats were expected to provide direct support to operational oceanography and meteorology and data to be integrated with space-based measurements of the ocean surface in numerical models for the climate observing system called for by the UNFCCC.[19] The Argo Program therefore is described as one of IOC's major observing system projects in coordination with the WMO through the Joint Technical Commission for Oceanography and Marine Meteorology, particularly in the implementation of GODAE and GOOS.

Since 2007, the Argo Program operates also in the framework of WMO Integrated Global Observing Systems, contributing to the Global Earth Observation System of Systems (GEOSS), which aims to understand and address global environmental and economic challenges, as called for by the Group of G-8 nations at Evian, France, in June 2003. It is part of a ten-year plan for coordinated global observations to be monitored by the Group on Earth Observations, hosted at Geneva by the WMO. Accordingly, the Argo Program is part of a multi-disciplinary and multi-domain global climate observing system.[20]

a. What are Argo Program Floats?

Argo profiling floats are free-floating instruments that measure oceanic temperature and salinity. They are deployed and programmed to descend vertically to a certain depth, then travel horizontally and, at specific intervals, rise to the ocean surface, where they relay via satellite and in real time their position; they then proceed to transfer temperature/salinity profiles and velocity measurements relevant to climatic changes, marine meteorology, geophysical gravity changes in the Earth's crust, and the topography of ocean surfaces. This information is retrieved and stored at a data processing center for dissemination to the operational oceanography community and its final users.[21]

b. How Is Information Disseminated?

The Argo Information Center (AIC) was established in 2001 in Toulouse, France, by the IOC/WMO to coordinate the deployment of Argo floats in situ around the globe.[22] To date, there are 3255 Argo profiling floats operational in the world's oceans with the support of forty-six nations, including the European Union.[23] The published data feed ocean models on global climate variability research in decade-to-century time scales. These models integrate the Argo data with other measurements in the search for causes of climate change and may yield answers on how to predict global effects caused by vast amounts of heat transported through ocean currents.[24]

II. Genesis of the Soft Law Guidelines

Legal lacunae prompted the IOC to establish the IOC/ABE-LOS in 1997. It was tasked with reporting on the legal framework for collecting oceanographic data[25] and developing Guidelines according to the principles adopted in 1999 by the IOC Assembly in Resolution XX-6. The latter provided that a) the Argo Program "shall be fully consistent with United Nations Convention on the Law of the Sea (UNCLOS);" b) "concerned coastal States must be informed in advance through appropriate channels of all deployments of profiling floats which might drift into waters under their jurisdiction, indicating the exact locations of such deployments;" and c) the IOC Executive Secretary would "inform Member States of float locations and how to access float data."[26]

The IOC/ABE-LOS delegates conducted lengthy discussions between 2004 and 2009.[27] Professor Kari Hakapaa (acting coordinator) and Elie Jarmache (Chairman) opened the 2007 meeting in Gabon with the understanding that the Guidelines would consist of simplified procedure not meant to fill gaps, change the rights and obligations of States under UNCLOS, or replace those rights. A majority of Member delegates viewed the deployment of Argo profiling floats as an activity better characterized as Operational Oceanography not governed by the Marine Scientific Research provisions under UNCLOS 1982 Part XIII. After intense debate, delegates agreed to discuss whether a coastal State's consent would be required prior to the deployment of instruments that might drift into its EEZ because of concerns that information concerning valuable natural resources could be the target of deployments. Delegates to the IOC/ABE-LOS then shifted positions, leaning toward stronger regulation and requiring prior consent by coastal States in place of the notification principle embraced in 1999 by the IOC Assembly in Resolution XX-6. As adopted, the Guidelines compromise between these positions by requiring prior notification and allowing coastal States a level of control over the public distribution of sensitive information.

III. The IOC 2008 Guidelines

The IOC Guidelines consist of a short non-binding document that includes a preamble and seven Guidelines.[28]

a. Information Versus Notification (Guidelines 1 to 3)

According to Guideline 1, an IOC Member State must be "informed in advance" through appropriate channels of the deployment on the high seas of any Argo project float that may enter its EEZ. IOC Member States may declare at any time in writing, if they so desire, "that they wish to be notified" of such deployment, and the IOC Executive Secretary will immediately transmit the request to IOC Member States.

Guideline 2 sets up a general communication mechanism between the Argo float "Implementer" (deployer), the AIC, and the Argo Focal Point (AFP) in the coastal State. The Implementer is responsible for the deployment and "transmit[s]" a set of five information parameters through the AIC to the AFP designated by the IOC Member State.[29]

Guideline 3 sets up a specific communication mechanism for the Implementer to notify the AFP "reasonably in advance of the expected entry of the float into the EEZ" of the possibility that a float might drift into the EEZ of an IOC Member State that has expressed its desire [to the IOC Executive Secretary] to be notified.

b. Data Policy (Guideline 4)

All data obtained by Argo profiling floats will be made freely available by the Implementer, including data obtained in the EEZs of coastal States. However, coastal States retain the right to restrict the release of data by the Implementer for a limited period of time if the data is "of direct significance for the exploration and exploitation of natural resources, whether living or non-living." This exception to the free availability of data is designed to protect the sovereign rights of the coastal State over the continental shelf and the EEZ.[30] This might amount to an exception to the IOC/WMO Data Policy,[31] according to which "Member States shall provide timely, free and unrestricted access to all data, associated metadata and products generated under the auspices of IOC programs."[32]

IV. Analysis: Operational Oceanography or Marine Scientific Research (MSR)?

Roughly, the U.S. and other leading researching State delegations to IOC/ABE-LOS[33] regard the deployment of Argo profiling floats as Operational Oceanography[34] and its operation an exercise of the freedom of the high seas (which includes navigation and overflight) by the nation or the organization deploying the Argo floats, not subject to regulation.[35] For these states, Guideline 1 undermines the principle of freedom of scientific research and observation on the high seas.[36] Given current practices and personnel constraints, it was argued, a literal application of the UNCLOS Part XIII MSR regime might be impossible because implementers are not staffed to make such notifications to all the coastal States into whose EEZ a float might drift.[37] Even if such notifications were possible, a considerable burden and duplication of effort by the existing bureaucracies might follow because the role of AIC as a multilateral mechanism provided by the international organizations is neglected: it is only tasked to "undertake the notification" after the bilateral communication of Guideline 3 has been implemented.

A number of coastal States, led by the delegations of Peru and Argentina,[38] view Operational Oceanography as a modality of MSR governed by Part XIII of 1982 UNCLOS.[39] In their view, irrespective of the Guidelines, UNCLOS Articles 246, 248, and 249 would compel a State or competent international organization engaged in the deployment of Argo profiling floats on the high seas that might drift into the EEZ of another State to seek prior coastal State authorization "not less than six months in advance of the expected starting date of the marine scientific research project" and to provide the coastal State with extensive information.

Implementing the Guidelines may therefore prove controversial, and the application of MSR Part XIII of 1982 UNCLOS may not solve the uncertainties because MSR or other types of oceanographic research remain undefined. Nor do the Guidelines clarify mechanisms for communication between coastal State organs and the AFP to prevent or to minimize duplication and possible confusion among agencies within States regarding Argo program float deployments. Consequently, a lack of effective scientific cooperation among relevant States could undermine the success of the 1992 UNFCCC commitments to promote the systematic observation of the climate system, Article 4(1)(g) and 4(1)(h).[40] However, States and international organizations are bound under Article 59 of UNCLOS 1982 to negotiate any disagreements regarding the exercise of residual rights in the EEZ not specifically attributed by UNCLOS to any specific State "on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole."

Conclusion

The IOC Guidelines for the deployment of Argo profiling floats on the High Seas are a step forward in the implementation of UNCLOS through soft law, though they are filled with legal uncertainty. Although the work of the IOC/ABE-LOS has been critical to date, it is unclear whether its mandate will be confirmed by the IOC Executive Council at its 43rd session in June 2010.[41] Ultimately it remains the prerogative of marine scientists and stakeholder States to develop effective practices pursuant to the Guidelines and to fill the lacunae in a manner that places climate change ocean observations in the service of humanity.[42]

About the Authors

Aurora Mateos (Postgraduate Diploma in European Studies, University of Paris I-La Sorbonne; M.phil. in Law, Universidad de Málaga; MSc Universidad Autónoma de Madrid; Bachelor of Law, Universidad de Málaga) is an attorney and former Technical Secretary of the IOC/ABE-LOS (2004-2009). Montserrat Gorina-Ysern (Ph.D. University of New South Wales, 2006; LL.M. Universitat de Barcelona 1984; and Bachelor of Law Universitat Autònoma de Barcelona, 1979) is a consultant and the founder and Director of the Healthy Children-Healthy Oceans Foundation.

Endnotes