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IV. Legislative competence

Legislative competence is a feature of such critical significance in the design of international institutions intended to bring about or foster sustainable development that it warrants more detailed discussion. As used in this context, the term "legislative competence" implies an institution's capacity to make rules that are binding on its membership, and to change those rules; to promote and monitor the application of the rules at all levels, including the national level; and to develop and codify international law on subjects related to its area of activity. Agreement on granting an international institution a measure of legislative competence usually becomes feasible when the adverse consequences of unregulated conduct of an activity within its operational scope:

1. are clearly demonstrable by reference to scientific information and data sufficient to counter views inspired by prejudice or vested interest;

2. are generally recognized at the State level, in particular by those States within whose jurisdictions the activity in question is principally conducted; and

3. are generally recognized by private commercial interests forming significant political constituencies.

Precedents

The International Civil Aviation Organization is a prime example of an institution to which States have granted broad legislative competence. The adverse consequences of the unregulated or sub standard conduct of air navigation and air transport hardly need proof: they are quite simply matters of life or death, a fact abundantly clear to those in authority, who are called upon increasingly to engage in air travel in pursuance of some important and urgent international mission. No need here, to extol the virtues of the "precautionary principle."58 The Council of ICAO is thus empowered to adopt by a two-thirds majority and submit to all States Members of the organization,59 international standards and recommended practices and procedures dealing with a comprehensive range of subjects60 including communications systems and air navigation aids, the rules of the air and air traffic control, licensing of operating and mechanical personnel, and airworthiness of aircraft, and to designate them annexes to the Convention.61

The Council's decisions on adoption of international standards take effect for all States Parties to the ICAO Convention three months after submission to them, unless a majority "register their disapproval with the Council."62 A Member State of the organization is required to notify the Council immediately if it "finds it impracticable to comply in all respects" with an international standard or practice, specifying the differences between its own practice and that established by the international standard adopted by the Council.63 The Council is, moreover, empowered to report to States Parties any infraction of the Convention, and failure to carry out recommendations or determinations of the Council;64 and to report to the ICAO Assembly failure of a State to take appropriate action within a reasonable time after notice of an infraction of the Convention.65 The Council also has important regulatory functions with impacts at the national level, over a range of matters concerning the safety of air navigation,66 as well as an important role in the Convention's dispute settlement procedure.67 The Council and the Assembly respectively have powers concerning the imposition of sanctions in the event of "non-conformity" by an airline, and by a Member State.68

Another example of an institution dealing with an area in which unregulated or substandard conduct could have dire consequences, and is thus endowed with substantial legislative competence, is the World Health Organization. The World Health Assembly is empowered to adopt regulations concerning sanitary and quarantine requirements and other preventive procedures, as well as standards with respect to such matters as diagnostic procedures, and the safety, purity, and potency of biological, pharmaceutical, and similar "products moving in international commerce."69 Such regulations come into force for all States' Members after due notice of their adoption, except for Members who notify the organization of rejection or reservations within the period stated in the notice.70 The Assembly is also empowered to:

1. make non-binding recommendations to the membership;71 as well as to

2. adopt conventions or agreements, on any matter within the competence of the organization.

Conventions are to be adopted by the Assembly by "a two-thirds vote" and are to come into force "for each member when accepted by it in accordance with its constitutional processes."72

Several organizations exercise indirect legislative competence through being empowered to adopt international agreements within a prescribed area of competence.73

Legislative competence of institutions referred to in the Convention on the Law of the Sea

Section III above outlined the extensive legislative competence granted to the International Seabed Authority under part XI and annex III of the Convention with a view to achieving both the optimal utilization of seabed mineral resources as well as their conservation. The Convention gives the Authority not only broad legislative competence, but also empowers it to monitor compliance with its rules, regulations, and procedures,74 and to deal with noncompliance with its rules and decisions.75 While such powers are appropriate, if not necessary, for the promotion of sustainable development of the resources dealt with, they were the result of an uncharacteristic attempt by States to adopt a precautionary approach and ensure rational and equitable utilization of the resources of the seabed through regulating the mining industry before the need for regulation had been generally recognized.76 Part XI was thus ahead of its time, and the scope of the Authority's legislative competence merely contributed to the reluctance of the developed countries to ratify the Convention.

Appropriate as the provisions of part XI may be for the achievement of sustainable development, they govern only a discrete topic of the Law of the Sea: mining the deep seabed. Other international organizations given responsibilities under the Convention, while satisfying the criterion of universality, have varying levels of legislative competence, and in that respect differ markedly from the International Seabed Authority. Thus, while the Authority may make rules, regulations and procedures binding on its members and is given broad competence to develop and codify international law on activities in the area, IMO is authorized to recommend to members for adoption, regulations and guidelines concerning maritime safety and the prevention and control of marine pollution from ships, and to adopt and place before its members international conventions on subjects within the scope of its activity.77 Although not intended to enlarge that scope, the UN Convention on the Law of the Sea may well have had the effect of enhancing IMO's impact on national legislation, for example, through conferring on the organization regulatory functions as the "competent international organization" for the establishment of "global and regional rules, standards, and recommended practices and procedures to prevent, reduce, and control [marine] pollution" from ships; and for the adoption of proposals for designating sea-lanes and prescribing traffic separation schemes, made by States bordering straits used for international navigation.78

The rule-making and regulatory competence of FAO, IOC, and UNEP are limited to organizational matters and do not extend to their respective operational areas. While the Convention does not purport to broaden the legislative authority of these organizations it may have, as with IMO, significantly enhanced their capacity to influence the legislative programmes of their members through their roles as "competent international organizations." Although the functions of FAO, IOC, and UNEP are essentially consultative and coordinative, the impact of these organizations as "catalysts" of international regulatory activity in their respective fields cannot be overstated. Few international treaties regulating fishing, whether concluded under UN auspices or on a regional basis could have been achieved without the information and advice furnished by FAO, while IOC's role has been comparable in the regulation of marine scientific research. The results of studies carried out by UNEP may be said to have a direct bearing both on national legislation and international cooperation, with the aim of laying the foundations of future treaty law, for example guidelines and principles, on offshore mining and drilling,79 and on marine pollution from land-based sources.80 UNEP's Montevideo Programme for the Development and Periodic Review of Environmental Law, is a survey of a comprehensive range of subject areas in which legislative action would facilitate the achievement of certain environmental objectives and strategies many of which have a bearing on the sustainable development of marine resources.

Recent legislative trend

A legislative technique involving conclusion of an "umbrella" or "framework" treaty setting out general obligations, and "protocols" or supplementary agreements on discrete issues concerning the subject-matter of the treaty, was used by the United Nations Economic Commission for Europe in dealing with air pollution. The pattern of ECE's "Convention on Long-range Transboundary Air Pollution," adopted in 1979,81 has been followed and developed in subsequent environmental treaties adopted under the auspices of UNEP, namely the 1985 "Vienna Convention for the protection of the ozone layer"82 and its 1987 "Montreal Protocol on substances that deplete the ozone layer,"83 and the 1989 "Baser Convention on the control of transboundary movements of hazardous wastes and their disposal,"84 and may indicate an evolving trend.

Thus, scientific study of problems concerning development of a resource leads to

1. "determination of a particular threat" to the resource; followed by

2. negotiation of an "umbrella" or "framework" treaty, providing for

(a) "general obligations" of parties directed to meeting that threat, including undertakings to cooperate in carrying out systematic observations, research, and information exchange, and to adopt appropriate legislative and administrative measures;85

(b) establishment of a plenary organ, the "Conference of the Parties," and secretariat;86 and

(c) "technical commitments" in one or more annexes to the Convention; and

3. adoption by the Conference of the Parties, of one or more "Protocols"87 or supplementary agreements dealing with aspects of the threat, each with its own plenary organ, the "meeting of the Parties" and secretariat,88 and technical commitments in annexes to a Protocol.

Entry into force of "Convention and Protocol" follow the traditional pattern: i.e., it is dependent upon ratification by a specified number of States - roughly twice the number being required for the umbrella convention, as for one of its protocols.89 As to decisions, parties to both categories of agreement, agree to adopt rules of procedure and financial rules by consensus.90 As to amendment of framework treaty and protocol, the parties, following the practice developed in connection with the UN Convention on the Law of the Sea, are first directed to "make every effort to reach agreement ... by consensus." However, each State has one vote, and, "If all efforts at consensus have been exhausted, and no agreement reached, ... as a last resort" a decision is to be taken by vote, a proportionately higher qualified majority being required for adoption of amendments to the Convention, as for amendments to a Protocol. Amendments to the Convention or a Protocol require ratification following the same pattern of differentional qualified majorities, and bind ratifying States only.91

With regard to "annexes" to the Convention or a Protocol, which would contain technical commitments and are thus intended to be sensitive to changes in relevant scientific and technical considerations, the procedure takes account of the need for rapid response: an amendment, once adopted and ratified, is to enter into force for "all Parties" following a period to be specified when the decision is communicated to them. However, following the "opting out" precedents noted above, the procedure provides that a Party would not be bound if, within that period, it declares in writing that it is "unable to approve" the subject matter of the decision.92 A certain autonomy foreseen for Protocols would allow omission of provisions on "opting out," but such a broadening of legislative reach may need to be balanced by a more stringent voting procedure for adoption, designed to attract the support and participation of a dominant industrialized minority.93

Other essential features of the institutional architecture evolving under UNEP auspices likely to facilitate legislation consistent with sustainable development, include:

1. universal participation, covering participation not only by States, but also by intergovernmental and non-governmental organizations as observers;94

2. general undertakings on cooperation over a range of scientific, technical, socio-economic, commercial, and legal matters, including provisions on transfers of funds and technology to the developing countries to enhance their participatory capacity;95 and

3. establishment of separate secretariats to administer each regulatory Convention and each Protocol, and granting to them extensive responsibilities with respect to administrative services, coordination, reporting, and information-exchange.96

While a strategy of dealing piecemeal with the vast range of complex problems affecting utilization of a common resource, and establishing a new institution to regulate each portion of them that appears separable, might be the only practical one for the time being, it would seem to lead inevitably to creation of a multiplicity of such institutions, with the attendant risks of duplication of effort and rivalry, and ultimately of inefficiency and waste. Accordingly, timely measures aimed at coordination of institutional action are of critical importance.

V. Coordination of marine resource institution

The 1982 Convention on the Law of the Sea, although dealing comprehensively with marine resources, provides no directions as to the manner in which the activities generated or inspired by it should be coordinated. Although coordinating roles are foreseen for the International Seabed Authority and other "competent international organizations" within their respective areas of competence, no overarching coordinating mechanism is provided. While the Convention confers on the Secretary-General of the United Nations certain depositary functions and powers of appointment, neither he nor the organization itself is given an overall coordinating competence among the institutions involved.

Useful coordinating functions were earlier assumed by the United Nations Secretariat through its Office for Ocean Affairs and the Law of the Sea (OALOS) as the result of its factual connection with the Convention through having provided the services needed by the Third UN Conference on the Law of the Sea, and its continuance of that role in relation to the Preparatory Commission. Following restructuring of the UN Secretariat, some of those functions may now be undertaken by the Office of Legal Counsel. The immense variety and complexity of the subjects and issues dealt with in the Convention are such as to make it extremely unlikely that any significant level of institutional coordination could be achieved, even with the best of intentions, through that Office or the UN's existing, already overextended, system-wide coordinating mechanisms such as the Economic and Social Council (ECOSOC), the Committee on Programme Coordination (CPC), the Administrative Committee on Coordination (ACC), the Consultative Committee on Substantive Questions (CCSQ), or the Office for Programme Planning and Coordination. Nor is it likely that such coordination could be achieved through other technical inter-agency mechanisms established for limited purposes over the years, including such distinguished examples as the Group of Experts on Scientific Aspects of Marine Pollution (GESAMP) and the ACC Inter-Secretariat Committee on Scientific Programmes Relating to Oceanography (ICSPRO).

A measure of overall coordination of the activities of institutions concerned with marine affairs would seem necessary at the international level, and indeed at the regional and national levels, if the Convention's twin goals of conservation and optimal utilization of marine resources (or, in a word, their "sustainable development") are to be realized. For many countries, particularly the less developed, it was the external stimulus of the Third UN Conference on the Law of the Sea, brought about through exchange of technical information and informed debate, rather than any internal generation of interest, that focused awareness of the potential of marine resources. One way to maintain that awareness, and to build upon it, might be to create a forum in which discussion of issues related to marine resources could take place regularly in a similar setting.

Established as a subsidiary organ of the United Nations, the functions of such a forum would be essentially consultative, deliberative, and recommendatory. Thus, it would have no legislative capacities of its own, but would be able to influence the regulatory programmes of "competent international organizations" which, in turn, would have a corresponding impact at the regional and national levels. Its vision unrestricted by constituent instruments of limited scope, the forum would be free to scan the entire range of activities associated with marine resources, determining areas where regulatory action might be necessary, recommending cooperative and coordinative measures, and evaluating progress in their implementation at regular annual or biennial sessions. The cost of such meetings would be minimal if they were to be served by a staff consisting of officers assigned to such duties on a regular basis by the "competent international organizations," and coordinated by the Office of Legal Counsel.

Essential features of the forum should include:

1. universal participation open to States, "competent international organizations," non-governmental organizations and private sector representatives, and organized in a manner that would reflect the quadripartite composition of the membership;

2. strong scientific and technical support from a committee of experts appointed for specified terms by the Secretary-General so as to ensure that the forum's recommendations might be based upon the best scientific and technical knowledge available; and

3. a committee of legal experts appointed by the Secretary-General for specified terms who would carry out studies of the legal and organizational issues associated with sustainable development of marine resources, and assist in the preparation of new regulatory measures or the establishment of new institutions.

VI. Conclusion

Sustainable development implies management of a resource for the purpose of maintaining a balance between conservation of the resource and its optimal utilization. Vigilance is called for, as well as the capacity and readiness to take regulatory measures to redress imbalances. This in turn requires organization brought about through legal commitment at the global, regional, and national levels, and based on (1) a holistic approach to the problems of ocean space; (2) universal participation which would require resource transfers to enhance participatory capacities that are less developed, and undertakings that reflect balanced differential obligation; and (3) timely equitable regulation of access to a resource, aimed at preventing its depletion or degradation, taking into account the best available scientific information.

Many of the institutional and legal implications of sustainable development were foreshadowed in the 1982 Convention on the Law of the Sea. In particular, the provisions of part XI on seabed mining beyond the limits of national jurisdiction represent a self-contained regulatory system, including an institution endowed with a high level of legislative competence, the International Seabed Authority.

Legislative competence, a feature of critical importance in the architecture of institutions with regulatory functions, is conferred in varying degrees on the other "competent international organizations" indicated by the Convention as having responsibilities with respect to the more traditional marine resource activities such as shipping (IMO), fishing (FAO), protection and preservation of the marine environment (UNEP), and marine scientific research (IOC/ UNESCO), as well as by several other institutions with such marine-related responsibilities but are not expressly indicated as such. Recent institutional developments in the field of the environment indicate the following:

1. That the scope of the legislative competence of an international institution may be expected to vary directly with the degree to which the problem dealt with has been demonstrated scientifically and is, accordingly, recognized by participating governments and their important industrial constituencies.

2. A trend towards conclusion of "umbrella" treaties containing general undertakings, which are to be supplemented by Protocols with technical annexes dealing with particular problems, each with its own institutional apparatus.

The 1982 UN Convention on the Law of the Sea is in many respects an "umbrella" treaty that calls for implementation through supplementary agreements. Fragmentation of institutional responsibilities under the Convention make it necessary to establish a mechanism that could coordinate and monitor the implementation of institutional programmes, and the creation of a deliberative forum for the purpose within the United Nations system may offer a solution at minimal cost.

A holistic approach to resolving economic problems, universal participation, and notions of equity and balanced differential obligation, and of interdependence and cooperation among nations, which must be taken to inform "sustainable development" as this term is used in the Brundtland Report were, we should recall, considered equally fundamental for the implementation of two other great concepts of our time: the seabed beyond national jurisdiction as the "common heritage of mankind" (1970) and the "New International Economic Order" (1974). In those days of hope and enthusiasm, some believed that the industrialized countries' great hunger for oil and the developing countries' possession of that resource, would induce at least the perception that nations were, in fact, interdependent, and thereby generate relationships of constructive reciprocity that would be the foundation for a new era of cooperation among States. Viewed with suspicion by the industrialized countries, as being likely to undermine free market prescriptions of proven efficacy, those initiatives seem to have been turned into stone, as by the eye of Medusa. Today groups of States contend again, this time to determine the practical content of a concept which all seem to believe - each interpreting it according to its own view of the world - could offer durable solutions: "sustainable development." Will the efforts of States to translate this concept into usable and beneficial form fare better than those that preceded it? If "sustainable development" is indeed the concept that does at last inspire and rally the will of States to action, it is perhaps because it was introduced and promoted as the key to prevention of scientifically demonstrated and universally apprehended physical danger: the threat of environmental collapse. Human beings, having fouled their nest, may have realized that the trend may be irreversible unless all, even the weak and less significant among them cooperate actively - each according to its capacity - to avert the impending catastrophe. This in turn may have generated the will to do so, always provided that the costs (painful choices) are not perceived as being too high for national political constituencies to bear.

Notes

1. World Commission on Environment and Development (WCED), Our Common Future (Oxford: Oxford University Press 1987), p. 43.

2. Ibid., pp. 8-9.

3. Minister Jan Pronk, speaking at the UN General Assembly's Special Session on "International Economic Cooperation, in Particular the Revitalization of Economic Growth and Development of the Developing Countries," 1990, reported in American Journal of International Law, vol. 85 (1991), p. 196.

4. See "Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development," adopted by the WCED Experts Group on Environmental Law in annex I to Our Common Future. The full text of the legal principles and recommendations adopted by the Experts Group, with commentary, was published by Martinus Nijhoff, Dordrecht, 1986. See also the "Programme for the Development and Periodic Review of Environmental Law" drawn up by the Meeting of Senior Government Officials Expert in Environmental Law, Montevideo, 6 November 1981, and Decision 10/21 of UNEP's Governing Council, 31 May 1982.

5. Preamble, third para.

6. Compare: Declaration on the Establishment of a New International Economic Order, para. 4, sub-para. (c), which calls for "Full and effective participation on the basis of equality of all countries in the solving of world economic problems in the common interest of all countries ... "; Charter of Economic Rights and Duties of States, art. 10, states:

All States are juridically equal and, as equal members of the international community, have the right to participate fully and effectively in the international decision-making process in the solution of world economic, financial and monetary problems....

7. United Nations Charter, art. 2, para. 1; see also Declaration on the NIEO, para. 4, sub-para. (a). By art. 157, para. 3 of the UN Convention on the Law of the Sea, the International Seabed Authority is "based on the principle of the sovereign equality of all its members."

8. As emphasized in Our Common Future, " ... economic partners must be satisfied that the basis of exchange is equitable; relationships that are unequal and based on dominance of one kind or another are not a sound and durable basis for interdependence.... The asymmetry in international economic relations compounds the imbalance ...," p. 67. Compare: Declaration on the NIEO, para. 4, sub-pares. (j) and ff., directed at achieving balanced economic relations.

9. What is implied is a network of complementary responsibilities. For the developing countries, revitalization of economic growth would be of the first importance; but subject to that priority they should be willing to undertake environmental protection responsibilities which are, or are enabled to be, within their capacities. This in turn implies a responsibility on the industrialized nations to bring about the transfer of advanced and environmentally sound technologies to the developing countries, so as to enable them to fulfil their environmental commitments. On the current need to recognize asymmetrical rights and obligations, see Sand, P. Lessons Learned in Global Governance. New York: World Resources Institute (1990), pp. 6-8.

10. As to the responsibility of the present generation to exercise restraint for the benefit of future generations, see Brown Weiss, E. In Fairness to Future Generations. Tokyo: United Nations University (1989), and "Our rights and obligations to future generations," American Journal of International Law, vol. 84, (1990) p. 198. As one writer observes "... without equity within the present generation, we will not be able to achieve equity among generations." GŁndling, L., "The status in international law of the principle of precautionary action." International Journal of Estuarine and Coastal Law, vol. 5 (1990), p. 23.

11. The principle of "preventive action" is incorporated in the Single European Act (1987) amending the Treaty of Rome, art. 130r, para. 2. Text in 25 International Legal Materials 503 (1986); entered into force 1 July 1987. As to the "precautionary principle," the Bergen Declaration on Sustainable Development of 14 May 1990 adopted within the framework of the UN's Economic Commission for Europe states:

7. In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Reproduced in Environmental Policy and Law vol. 20 (1990) pp. 100-103. See also: GŁndling, L., op. cit. above, note 10. For a summary of the current stage of development of the principle in the context of international law, see Handl, G., "Environmental security and global change: the challenge to international law." Yearbook of International Environmental Law, vol. 1, London: Graham & Trotman (1990) p. 20 ff.

12. 8. Environmental problems require greater and more systematic use of science and scientific knowledge..." ibid., para. 8. On the question of climate change and the gradual reduction or elimination of greenhouse gases, the accompanying "Joint Agenda for Action" requires that "The formulation of quantitative targets should be based on the best scientific evidence available..." (para. 7(c)).

13. Axelrod, R., The Evolution of Co-operation. New York: Basic Books (1984) p. 131.

14. See, for example, treaties formulated within organizations of the United Nations family: International Labour Organisation, for example protecting workers against occupational hazards in the working environment due to air pollution, noise, and vibration (1977, EIF 1979), occupational safety and health and the working environment (1981, EIF 1983); International Atomic Energy Agency, for example Paris Convention on Third Party Liability in the Field of Nuclear Energy (1960), Vienna Convention on Civil Liability for Nuclear Damage (1963), Convention on Early Notification in the Event of a Nuclear Accident (1986, EIF 1986), Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986, EIF 1987), e.g. art. 235 (responsibility and liability). See Kiss, A., and D. Shelton, International Environmental Law. New York: Transnational Publishers (1991) pp. 360376. See also Caron, D., "Liability for transnational pollution arising from off-shore oil development." Ecology Law Quarterly, vol. 10 (1983) pp. 641 ff.

15. For a survey of current developments, see Francioni, F., and T. Scovazzi, eds International Responsibility for Environmental Harm. London: Graham & Trotman (1991); Kiss, A., and D. Shelton, op.cit. above, note 14.

16. 1982 United Nations Convention on the Law of the Sea (UNCLOS) art. 56, para. 1 (a).

17. UNCLOS, arts. 56, para. 2; 60, para. 3; 61; 62; 69-70.

18. UNCLOS, arts. 63-67. See also arts. 116-120.

19. UNCLOS, arts. 192-196.

20. UNCLOS, arts. 22, 23, 41, 43, 53, 60, 94, 147.

21. UNCLOS, arts. 22, para. 3 (a); 41, pares. 4 and 5; 53, para. 9.

22. UNCLOS, arts. 22, para. 3 (a); 41, pares. 4 and 5; 53, para. 9.

23. UNCLOS, arts. 60, pares. 3 and 5; 80.

24. UNCLOS, art. 211.

25. UNCLOS, arts. 210, 216.

26. UNCLOS, arts. 22, 23; and compare arts. 194, 207.

27. UNCLOS, arts. 61-67.

28. UNCLOS, arts. 116-119.

29. UNCLOS, arts. 65, 120.

30. UNCLOS, arts. 207 (213), 208, 212 (222).

31. UNCLOS, arts. 238-265.

32. UNCLOS, annex VIII.

33. For example, Conference of the Parties established by art. 6 of the 1985 Vienna Convention for the Protection of the Ozone Layer; Meeting of Parties provided for by art. 11 of the 1987 Montreal Protocol on Substances that deplete the Ozone Layer.

34. 1972 Convention for the Conservation of Antarctic Seals; 1980 Convention on the Conservation of Antarctic Marine Living Resources; 1988 Convention on the Regulation of Antarctic Mineral Resource Activities.

35. For example South Pacific Forum Fisheries Agency (FFA), FAO's Indian Ocean Fisheries Commission (IOFC).

36. ESCAP's Committee for Coordination of Joint Prospecting for Mineral Resources in Asian Offshore Areas is an example.

37. Regional Convention for Cooperation on the Protection of the Marine Environment (Kuwait, 1978); Abidjan Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (1981), and others in UNEP's Regional Seas Programme.

38. Scientific Committee on Antarctic Research (SCAR); the marine scientific organization for the North Pacific region established by the PISCES Convention (1990); and the Organization for Indian Ocean Marine Affairs Cooperation (IOMAC).

39. UNCLOS, art. 160, para. 1.

40. UNCLOS, art. 159, pares. 9 and 10.

41. UNCLOS, art. 161, pares. 1 and 2.

42. UNCLOS, art. 161, para. 8.

43. UNCLOS, arts. 143, 247, 256.

44. UNCLOS, arts. 145, 204, 208-209, 215.

45. UNCLOS, art. 146.

46. UNCLOS, art. 147.

47. UNCLOS, arts. 144, 272-274, 278.

48. UNCLOS, art. 148.

49. UNCLOS, art. 160, sub-para. 1(f); art. 161, sub-para. 2(o).

50. Note UNCLOS, art. 158, para. 4, which incorporates a principle of "separation of powers" as among the principal organs of the Authority.

51. UNCLOS, art. 161, sub-para. 8 (d); art. 162, sub-para. 2(o)(ii).

52. UNCLOS, art. 159, para. 8; art. 160, sub-para. 1(f)(ii).

53. UNCLOS, art. 162, sub-para. 2(w).

54. UNCLOS, art. 153, pares. 4 and 5; art. 160, sub-para. 2 (m); art. 161, sub-para. 8(c); art. 162, sub-para. 2(t). See also art. 162, sub-para. 2 (1).

55. UNCLOS, art. 162, sub-para. 2(x).

56. UNCLOS, arts. 186-91, and annex VI, arts. 35-40.

57. UNCLOS, art. 314; art. 161, sub-para. 8(d); art 158, para. 8.

58. Above, footnote 11.

59. Convention on International Civil Aviation (1944, EIF 1947), art. 90, para. (a).

60. Ibid. art. 37.

61. Ibid. art. 54, sub-para. (1).

62. Ibid. art. 90, para. (a).

63. Ibid. art. 38.

64. Ibid. art. 54, sub-para. ( j).

65. Ibid. art. 54, sub-para. (k).

66. Ibid. chapter XV.

67. Ibid. art. 84. See also Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), ICJ Reports (1972), pp. 46 ff.

68. Ibid. arts. 87-88.

69. Constitution of the World Health Organization (1946, EIF 1948), art. 21.

70. Ibid. art. 22.

71. Ibid. art. 23.

72. Ibid. arts. 19-20.

73. For example ILO, IMO, UNEP.

74. UNCLOS, art. 153, pares. 4 and 5; art. 162, sub-para. 2(1).

75. UNCLOS, art. 162, sub-pares. (t), (u), (w); annex III, art. 18 and annex VI, section 4.

76. While, for historical reasons, the Convention places emphasis on the mining of polymetallic nodules, its provisions cover all seabed mining activity: see UNCLOS, art. 151, para. 9, art. 161, para. 8, and art. 162, sub-para. 2(o)(ii).

77. Convention on the International Maritime Organization, art. 16, sub-pares. (f) and (k); arts. 30, 35, 40.

78. Above, notes 22-27.

79. "Guidelines for Drilling and Mining Activities conducted Within the Limits of National Jurisdiction," reproduced in Environmental Policy and Law, vol. 7 (1981) pp. 50-52.

80. Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources, Decision 13/18/II of the Governing Council of UNEP, 24 May 1985.

81. Reproduced in International Legal Materials (ILM) vol. 18 (1979) p. 1442.

82. Reproduced in 26 ILM (1987) p. 1516.

83. Reproduced in 26 ILM (1987) p. 1550.

84. Reproduced in 28 ILM (1989) p. 657.

85. 1985 Vienna Convention for the Protection of the Ozone Layer (VOL), art. 1.

86. VOL, arts. 6-7.

87. 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (MPOL).

88. MPOL, arts. 11 -12.

89. VOL (the "framework" treaty) required deposit of 20 instruments of ratification, acceptance, approval or accession, for its entry into force (art. 17), while MPOL would enter into force following deposit of 11 such instruments (art. 16).

90. VOL, art. 6, para. 3; MPOL, art. 11, sub-pares. 3 (a) and (b).

91. VOL, art. 9, pares. 3 and 5.

92. VOL, art. 10, sub-para. 2(b).

93. VOL, art. 9, para. 5.

94. VOL, art. 6, para. 5; MPOL, art. 11, para. 5.

95. VOL, arts. 2-5; MPOL, arts. 7, 9-10.

96. VOL, arts. 6-7; MPOL, arts. 11-12.


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