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Significance and urgency of ratification
The significance of ratifying the Convention and bringing it into force at the earliest possible moment cannot be overemphasized for several reasons. The provisions of the Convention have been categorized under two broad headings, namely, those that are said to have passed into the realm of customary international law, and those that are deemed to be constitutive, having been developed and incorporated in the process negotiated at UNCLOS III. Such categorization of norms, while attractive, is in many respects misleading and could contribute to the unfortunate fragmentation of the Convention.
According to this approach, the limits of 12 nautical miles for the territorial sea, the 200 nautical mile exclusive economic zone, the regime of the continental shelf, and the freedom of the high seas are now part of customary international law. It has even been argued that transit passage through straits comes under customary international law, although this is at best a dubious contention. In this context it is our view that the principle of the common heritage of mankind has also entered into the realm of customary international law due to its almost universal acceptance. Without the guarantees provided by the provisions of the Convention, however, each State will be free to interpret these concepts unilaterally, particularly vis-à-vis the States not parties to the Convention.
It should also be emphasized that many of the recognizable traditional customary principles of international law of the oceans have undergone fundamental change in the process of negotiation leading to the adoption of the Convention. A comparative study of traditional customary principles now codified in the Convention, such as those of innocent passage or freedom of the high seas, shows that the Convention incorporates some very significant developments which can only be invoked within the framework of a binding Convention and not on the basis of customary international law.
One of the basic canons of interpretation of statutes is the principle that a statute must be read as a whole. The Convention therefore must be read as a whole and applied in its entirety. States cannot, and should not, be encouraged to pick and choose areas and parts of the provisions of the Convention which they find convenient, on the basis that they have become customary international law. It should always be remembered that the Convention as a whole is a delicate balance of rights and obligations. All rights claimed must be subject to the fulfilment of their concomitant obligations as provided for in the Convention.
The Convention has, among other things, enhanced the importance of baselines. It is from the baselines that the limits of the territorial sea, contiguous zone, exclusive economic zone, and the continental shelf are measured. Similarly, the Convention, in clarifying the status of atolls and of islands having fringed reefs, has made provisions legitimizing the drawing of baselines where coastlines are very unstable because of deltas and other natural conditions. Thus the importance of concretizing the baselines principle in a binding convention for various purposes can hardly be overemphasized if conflicts on delineation of respective national and international zones are to be minimized.
Significant new principles of law of the sea have been substantially developed by the Convention. The concept of transit passage through straits is an instance of an innovative principle which has no roots in customary international law. In customary international law, as it obtained before the Convention, the maritime areas or corridors within territorial seas in which transit passage is now conceded by the Convention, only allowed the regime of innocent passage with all its ramifications. The transit passage regime is an instance of the spirit of give and take that prevailed at UNCLOS III. The right of transit passage stipulated in the Convention cannot be availed of except within the context of the Convention. It cannot be assumed to have become part of customary international law.
While it is true that the Convention embodies several concepts of customary international law, these have in the process of negotiation undergone significant development. These concepts can today, strictly speaking, be deemed customary only in that the legal concepts themselves can be traced back to some date or event in the past. However, the mechanisms and systems incorporated in the Convention for the implementation of these "customary principles," such as those of territorial waters, contiguous zone, exclusive economic zone, and the continental shelf, are to be found, not in customary law, but in the provisions of the Convention.
Thus claims and determination of the extent of the rights and obligations within these maritime zones and the regime of transit passage are to be found in the provisions of the Convention. Similarly, though the concept of the Exclusive Economic Zone may be deemed to have become part of customary international law, in view of its almost universal acceptance, the details of rights and obligations in it can only be invoked within the 1982 Convention. Ratification of the Convention is therefore sine qua non in the claiming of these maritime zones, particularly the claim and exercise of the right of transit passage which has never been a part of customary international law, and whose acceptance in the Convention was in the concept of the overall package deal.
It should be noted that six of the sixty States that have so far ratified the Convention (December, 1993) are landlocked States. These landlocked States, including three Member States of the Asian-African Legal Consultative Committee (AALCC), are Botswana, Paraguay, Uganda, Zaire, Zambia, and Zimbabwe. It is hoped that other landlocked States, including other members of the AALCC, would consider ratifying the Convention in the near future. Their ratification of the Convention is a reflection in part on the faith they repose in part X of the Convention which provides for the right of access of landlocked states to and from the seas and freedom of transit. Once the Convention comes into force, the right of access to and from the seas and the freedom of transit of these landlocked States - and other ratifying States would cease to be a matter of bilateral arrangement with the neighbouring coastal States and would thereafter be governed and regulated by the provisions of articles 124 to 132.
The landlocked States also shall have the right to participate, on an equitable basis, in the exploitation of the living resources of the exclusive economic zone(s) of neighbouring coastal States. Article 69(1) of the Convention stipulates that the landlocked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. While the benefits to be enjoyed by these States under these provisions are somewhat problematic, they nevertheless provide new rights which they cannot attain outside the 1982 Convention.
The Convention also constitutes a blueprint for the preservation and protection of the marine environment. Preambular paragraph 4 of the Convention explicitly states that the objectives of the Convention, inter alia, are the establishment of a legal order designed to facilitate international communication, and to promote the peaceful uses of the seas and oceans, "the equitable and efficient utilization of their resources, the conservation of their living resources and the study, protection, and preservation of the marine environment" (emphasis added). The emphasis that the Convention, particularly in part XII, places on protecting and preserving the environment brings into sharp focus the primordial importance of the oceans in maintaining the global ecological balance as well as controlling and moderating the world climate. It is also one of the most coherent bases for sustainable development of marine resources.
As the international community prepares to negotiate a new social contract for the protection and preservation of the environment which has already been accepted as being a common concern of mankind, it may be proper to dwell at some length on part XII of the Convention to underline the significance - and the urgency - of ratifying it.
Even a cursory reading of the provisions of articles 192 to 237, comprising part XII of the Convention, would show that they are not merely a restatement of existing conventional law or practice but are fundamental or constitutional in character in that they are the first comprehensive statement of basic international legal norms on the subject. In fact they have already become widely accepted so as to be considered as a part of "customary international law." Those provisions mark a movement to regulation based upon a holistic conception of the oceans as an exhaustible and finite resource. Part XII of the Convention is thus a maiden venture towards a global response to the problems of combating marine pollution.
It is also the first codification of the principles on marine pollution as articulated in the Stockholm Declaration. In spite of the fact that the provisions of part XII impose extensive obligations, which perforce restrict state autonomy, consensus on these obligations was achieved at an early stage during the UNCLOS negotiations. This, it may be stated, is illustrative of the unanimous concern of the global community about marine pollution problems and the relatively non-controversial nature of the solutions required. Yet these provisions will only become legally binding on the coming into force of the Convention.
Part XII and allied provisions of the Convention are significant for the general development of international law because they comprise the first such endeavour to develop a public international law framework in response to the deterioration of, and threats to, the marine environment. More significantly they are reflective of the nature of the subject matter, and part XII is expressly designed to operate as an "umbrella" or framework for further global and regional actions. Besides the traditional norm-setting function, regional approaches are expressly recognized and indeed mandated. Thus section 2 of part XII is entitled "Global and Regional Cooperation" and, inter alia, directs the States to cooperate on a global and as appropriate, on a regional basis, "taking into account characteristic regional features."
The Convention, as a whole, by striking a balance between the protection of the marine environment and the rational exploitation and sound conservation of both the living and non-living resources of the sea, endeavours to protect marine ecosystems from abusive activities and harm. It also incorporates a system of exploitation which could contribute to sustainable development, that is, development which meets the needs of the present without compromising the ability for future generations to meet their needs. Adherence to the Law of the Sea Convention is considered, therefore, the most significant initial action that nations can take in the interests of the ocean's threatened life-support system.
It is significant also that among the 60 states that have ratified the Convention there are 20 island and archipelagic States, including 3 members of the AALCC. For these island and archipelagic States besides their expanded jurisdiction over living and non-living resources - the provisions of part XII of the Convention on the preservation of the marine environment could be, in view of the adoption and coming into force of the Convention on Climate Change, a very significant first line of defence against the "heat trap" caused by the greenhouse effect. The significance of ratification of the Convention and bringing it into force at an early date for the island and archipelagic States can hardly be overemphasized. It is hoped, therefore, that more of these States would consider ratifying the Convention.
It is therefore necessary to urge all States, who have not already done so, to ratify or accede to the Convention to enable them to claim and exercise the rights stipulated therein. The process of ratification leading to early entry into force would contribute to lending to the Convention the legal and moral authority of the Law which is so necessary to guarantee particularly the rights of developing countries vis-à-vis the encroachment from the maritime powers which have in the past been the hallmark of the regime of the oceans.
At this juncture it may be pertinent to refer to some recent developments. The reluctance on the part of the industrialized countries to ratify the Law of the Sea Convention, or become bound by it, after all the concessions made at UNCLOS III to accommodate their then expressed concerns, has generated a feeling of frustration and betrayal among the developing countries. Recently, somewhat clandestine efforts have been made in some quarters to amend the Convention even before it comes into force. Those who have advocated and lobbied for such premature amendment have ignored the strong feelings of many developing countries in general, and Member States of the AALCC in particular.
The AALCC is generally of the view that under Resolution I and II of UNCLOS III it is neither permissible nor within the mandate of the Prepcom, as had been mooted, to make substantive changes to the Convention to be incorporated in a protocol to come into force simultaneously with the Convention. This is not to suggest that the Convention is sacrosanct and immutable. The Convention itself admits amendments of any of its provisions - except those concerning the Common Heritage of Mankind. But the procedure for amending is very clearly spelt out and can only be applied subsequent to the entry into force of the Convention, if the need arises.
It has been argued that the Convention can and must be amended to remove certain reservations of a number of industrialized countries. Last year the Secretary-General of the United Nations convened informal consultations on outstanding issues relating to the deep seabed mining part of the Convention. In the course of the first of these informal consultations in July 1990, to encourage States to enter into a dialogue in order to resolve the problems that some States have, the delegate of the United Kingdom identified seven areas of difficulties or reservations. These related to:
1. the Enterprise;
2. cost to States Parties;
3. production limitation;
4. compensation fund;
5. financial terms for commercial operations;
6. decision-making; and
7. the review conference.
In some instances the MARPOL Convention adopted under the auspices of the International Maritime Organization (IMO) has been cited as a precedent of an international instrument having been amended before its coming into force. This in itself is insufficient justification or rationale for amending the "Social Contract" for the oceans. Besides one of the provisions sought to be amended is the very procedure for amendment to be followed by the review conference which is to be convened fifteen years after the commencement of commercial exploitation in accordance with article 155 of the Convention.
The importance of a globally binding Law of the Sea Convention to the entire international community was the basis of the unique, and in many respects peculiar, negotiating procedures which characterized UNCLOS III. Realizing the need for a consensus, comprehensive package deal Convention, the developing countries seriously engaged in evolving compromise solutions with the maritime powers and other industrialized countries; and the result was the 1982 Convention. Indeed this Convention involved numerous concessions from the developing countries to meet the then expressed fears and concerns of the developed countries. Among these compromises and concessions are the very provisions in the Convention relating to each of the above-mentioned issues.
Nothing new has emerged since 1982 to justify tinkering with the above provisions. Neither the proposed amendments to the Convention nor the "empty chair" negotiating tactics hitherto adopted by one of the major maritime powers is therefore a solution to the reservations nursed by the developed countries. The United States attended the informal consultations convened by the Secretary-General of the United Nations in 1990, but has made no undertaking that, should the identified issues be resolved, she would accede to the Convention. It is not inconceivable that, if concessions were made on the above issues, new "problems" would be identified for further amendments.
Finally, it should be pointed out that a new international legal order will be built up in slow measures literally by placing one stone atop another. The Law of the Sea Convention is the cornerstone of the new international legal order in the oceans, and it is therefore imperative that it be placed firmly and squarely into the realm of binding international law. Several states have reiterated their conviction that the Law of the Sea Convention is indeed the cornerstone of a new and emerging order in all aspects relating to oceans from economic, ecological, and navigational perspectives.
Financial obligations and cost of ratification
Many developing countries have been cautioned by some quarters that the accession to, or ratification of, the Convention would entail colossal and increased financial obligations for them. It is important that such misconceptions be clarified and, where necessary, categorically refuted.
Ratification of the Convention by the developing coastal States by itself entails no financial obligation on the part of the ratifying States. Any significant financial obligations which may devolve to the States Parties would arise only when the deep seabed mining arm of the International Seabed Authority - the Enterprise - undertakes a venture for the exploration and exploitation of the polymetallic nodules in the area.
As the Chairman of the Group of 77 observed during the course of the summer meeting of the Seventh Session of the Precom, a "false impression has been conveyed and perpetuated, despite repeated statements by Members of the Group of 77 to the contrary, that the Group of 77 contemplated the establishment of a large bureaucratic organization, unrelated to the activities which the Authority is legitimately required to perform under the Convention from time to time. Nothing could be further from the truth. The Group of 77 is desirous of establishing an Authority which would be efficient and cost effective, the size of which would be no larger or smaller than is required to enable the Authority to carry out its functions efficiently."
It is now generally accepted that a commercial undertaking or venture is not likely in the foreseeable future. It should also be pointed out that there is nothing in the Convention which obligates States Parties to bring into being the entire machinery and bureaucracy foreseen in part XI on the exploration and exploitation of the Area of the Convention before commencement of commercial exploitation. A modest secretariat, such as the one already existing within the United Nations Secretariat, could be charged with the necessary functions of implementing whatever needs to be done before the Enterprise becomes fully operational. In the words of the Chairman of the Group of 77 at the Prepcom, "the costs of the Authority at any given moment will depend upon the activities it will be required to perform on a cost effective basis. The contribution of members will be related thereto and if the organization is initially established on a modest basis, because the activities at that stage will not be enormous, so too the contributions of members will be correspondingly small." It should be pointed out that there is "a consensus among all regional groups and interest groups with regard to these guidelines."
In the event of the Enterprise commencing its ventures before the turn of the century, the financial obligations, if any, of the developing States would, therefore, not be of the astronomical proportions that they are made out to be. The financial obligations of the States Parties could in the initial stages be kept at the bare minimum through various options. For one, the entire machinery and system with all its paraphernalia, as envisaged by the Convention, need not be established immediately. In the initial stages, modalities for the functioning of the Nucleus Enterprise making use of the existing administrative and secretariat staff of the United Nations Division of Ocean Affairs and the Law of the Sea could be envisaged. The secretariat of the International Seabed Authority, and such other subsidiary organs as may be required, could be established in due course as and when the ventures of the Enterprise start bringing returns.
An endeavour is made below to show that the cost of ratification would not be as astronomical as has hitherto been made out. A study of the cost of ratification of the Convention made by the International Ocean Institute has rightly pointed out that the costs of ratification can be broken down into two parts, namely:
(a) costs arising from the new responsibilities which come together with the new rights over extended areas of jurisdiction; and
(b) payments for the establishment, and running, of the new institutions to be set up under the Convention: the International Seabed Authority; the Enterprise; the International Tribunal for the Law of the Seas; and the Commission on the limits of the continental shelf.
That study had, inter alia, observed that the costs arising from the new responsibilities which come together with new rights of resource jurisdiction may vary depending on the stage of technical and organizational preparedness of a State at the time the Convention comes into force. It had rightly recommended that "the amount to be spent should not be considered simply as a 'cost' and that it should be accepted as an investment in development." It had gone on to observe that the greatest benefit of the Convention may in fact consist in the stimulus it gives to this kind of investment in development of human resources, of infrastructure, and of technology.
As regards the implementation of part XI, the International Ocean Institute study had estimated that the recurring costs, of establishment and running the machinery envisaged, for the first five years would amount to some US$50 million per annum. That figure was based on some assumptions that activities will take place in Jamaica where the infrastructure is already in place, and in Hamburg where Germany would take care of establishment costs. It had also assumed that the Convention would come into force in 1990. The said study had accordingly concluded that "if the Convention were ratified by all States Members of the United Nations, the poorest States would have to contribute US$5,000 to the annual budget, the richest (USA), US$12.5 million: a very modest undertaking indeed, which, however, would be sufficient to globalize the most advanced concepts of international scientific/industrial cooperation, including the developing countries as equal partners."
During a seminar on "Alternative Cost-Effective Models for Pioneer Cooperation in Exploration and Technology Development and Training" organized jointly by the AALCC and the IOI during the Eighth Summer Session of the Prepcom in August 199O, it was, inter alia, pointed out that the proposal on joint ventures directed itself to the functional operations of joint ventures during the initial stages from the coming into force of the Convention to the commencement of the mining operations. This is important to ensure that the Enterprise would be able to keep pace with the activities of States and State enterprises in exploration and exploratory stages. It was underlined that an estimated 100 million dollars per annum are being spent on research and development on deep seabed mineral extraction technology and that it would be significant if a part of this amount could be brought under the auspices of the Prepcom or that of the International Seabed Authority when the Convention comes into force. Needless to say, such pooling of resources in joint ventures could reduce costs by as much as 75 per cent if efforts on research and development were to be conducted jointly. The undertaking of joint ventures as proposed in the paper on "Alternative Cost-Effective Models for Pioneer Cooperation in Exploration, Technology Development, and Training," offers an approach whereby cost of implementation of part XI can be shared and thus the financial obligations both of the developing and developed countries kept at a minimum. Apart from the importance of reduction of costs of such developments through joint ventures, such an enterprise would also be instrumental in technology transfer and for training.
The proposal of AALCC and IOI had envisaged that about 50 per cent of the financing of such joint ventures would be made by private corporations or States Parties through the pioneer investors or other ventures while the remainder would be contributed by public financial institutions such as the World Bank and others such as UNDP. It was foreseen that such joint ventures would be most effective if some 200 million dollars over a period of four years could be made available.
The United Nations Office of Ocean Affairs and the Law of the Sea, recognizing the need for economy, the need to minimize the financial burden to States Parties, and the importance of taking into account "the likely developments in deep seabed mining" prepared a background note on Administrative Arrangements, Structure and Financial Implications of the International Seabed Authority. The note, inter alia, that the financial implications for States Parties are to be viewed within the overall institutional arrangements provided for in the Convention, involving the two new institutions: the Authority and the Tribunal, and the United Nations. The financial requirements of the United Nations for the fulfilment of the functions under the Convention will be met from the regular budget of the United Nations. The financial implications with regard to the Authority and the Tribunal are summarized in the following table:
Table 1 Financial implications for Authority and Tribunal institutions
|(a) Recurrent annual expenditures||2,978.6|
|(b) Annual conference servicing costs||1,639.0|
|(c) Initial one-time capital outlay||100.0|
|2 United Nations-linked|
|(a) Recurrent annual expenditure||1,639.0|
|(b) Annual conference servicing costs||1,639.0|
|(c) Initial one-time capital outlay||20.0|
|(a) Recurrent annual expenditures||5,750.0|
|(i) Authority: Self-administered + Tribunal||10,467.6|
|(ii) Authority: UN-linked + Tribunal||9,048.0|
The self-administered Authority headed by a Secretary-General, comprises a total staff of 50 personnel including a deputy to the Secretary-General. The staff structure envisages a total of 20 personnel in the professional and technical category and 30 in the general services category. On the other hand, a UN-linked Authority headed by a Secretary-General shall comprise 10 personnel in the professional category and 17 in the general services category. The UN Office on Ocean Affairs and the Law of the Sea note envisages a one-time capital outlay for the self-administered institution (Authority) as US$100,000, and for the UN-linked institution as US$20,000. This capital outlay would be required for purchase of certain office equipment.
From the foregoing, therefore, the cost of ratification would not be of the astronomical proportions that it has been made to sound, and the cost for most developing countries is likely to range between US$2,000 to US$8,000 depending on policy choices made. Clearly joint ventures would also significantly help in reducing the costs, in promoting economy, and minimizing financial obligations of States.
1. In the preparation of this paper, the author has received valuable research assistance from Mr. Kanwar Jeet Singh Ramdass Kapoor, Principal Legal Officer at the Secretariat of the AALCC. The paper is an abbreviated version of the brief prepared for the Thirtieth Session of the Asian-African Legal Consultative Committee, held in Cairo, April 1991.
The role of indigenous peoples in ocean governance
Sharing the ocean's bounty in a spirit of
kinship and harmony
Traditional native approaches to ocean governance
The pursuit of ocean claims
International recognition of the rights of indigenous peoples
Summary and conclusion
Jon M. Van Dyke
Sharing the ocean's bounty in a spirit of kinship and harmony
Although indigenous or native peoples vary markedly in their cultures and political situations, they share a common heritage of living in harmony with their natural environment. Those who have lived in continental areas have been hunters and gatherers, and later cultivators of crops, always with a sensitivity for the need to sustain and renew the soil and the forests so that future generations can continue to find sustenance there. Those who have lived along coasts or on islands have turned to the sea for its rich bounty, but again with a realization that the creatures of the sea are exhaustible and that they must be harvested with a sensitivity to the natural limits of their ability to reproduce.
Native peoples reflect this desire to live in harmony with their environment in the spiritual values, symbols, and stories of their religions. In the creation chant of the native Hawaiian people, the Kumulipo, the ocean is described as "more than just an 'environment' or a 'resource'.... [It] is a living being - a home for other living beings and of living gods." (Laenui 1993) The Hawaiians recognized that they "are connected ... biologically ... to all the creatures and plants of the earth," but more importantly they recognized that they are also "spiritually" bonded. (Ibid.)
Our relationship with ocean life ... is not merely the sharing of the same physical makeup. It is the sharing of a spiritual interrelationship as well. (Ibid.)
The protection of the ocean from pollution is thus essential, because the ocean is a part of the life-giving and living force that sustains us and connects us to other peoples.
The ocean is a great connector of countries and of peoples, the common amniotic fluid from which we have all come and that we continue to share. (Ibid.)
This vision of a kinship relationship with the oceans contrasts sharply with the standard Western view "that the oceans are simply another resource to be used for economic gain: either indirectly, as a passageway, or directly as a source of food or other wealth." (Jackson 1993) Under this view, which has been "the guiding principle behind the law of the sea," "nations were to be protected in their use of the sea, without any parallel protection for the sea itself." (Ibid.)
The Maori people in Aotearoa, or New Zealand, developed their own "te tikanga o te moana" or law of the sea, which is based on "four basic precepts deeply rooted in Maori cultural values," similar to those that guided the native Hawaiians:
First, the sea is part of a global environment in which all parts are interlinked.
Second, the sea, as one of the Taonga or treasures of Mother Earth, must be nurtured and protected.
Third, the protected sea is a koha or gift which humans may use.
Fourth, that use is to be controlled in a way that will sustain its bounty. (Ibid.)
These principles still guide the Maori, and they have drawn upon them in their recent claims before the Waitangi Tribunal to protest, for instance, against sewage discharges into the rivers, lakes, and estuaries that are part of their natural environment. (Ibid.) The Maori perspective is that pollution should not be attacked "by seeking more effective methods of waste disposal as is often advocated today, but by ensuring that any activity produces as little waste as possible at its source." (Ibid.)
It is sometimes argued that this view of the ways native peoples treat ocean resources is too romanticized or idealistic, and that one cannot always be sure that indigenous peoples will be environmentally sensitive. It is observed, for instance, that native people still seek to kill the bowhead whales in the Arctic area, even though this species is endangered. Similarly, Pacific islanders still occasionally harvest turtles that are endangered.
One response to these observations is, of course, that these species are not endangered because of native harvesting, but rather because of the exploitive practices of the industrialized world. The native take is still modest and would be insignificant if it was not for the high-tech harvesting practices of others.
In Hawaii, recently discovered remains have established that some species became extinct before Westerners came to the islands, notably some birds that were overhunted because of the beauty of their feathers. Certainly mistakes have been made by native peoples as well as by non-natives, frequently because of a lack of information about the effect of certain activities. But overall the traditions and practices of native peoples have been well designed to provide protection for the natural environment, and members of the modern industrialized world should be able to learn from the native peoples about the advantages of living in harmony with the creatures that surround us.
In an article presenting the view that Pacific islanders should have the power once again to control the oceans surrounding them, Governor Joseph Ada of Guam argued that the islanders were fully capable of protecting the oceans. To contrast the caring attitude of the islanders with the approach of the industrialized world, he observed that:
[T]he political leadership of Guam has never in its history issued permission for drift gill-net fishing, decimation of whale herds, ocean dumping of human garbage, open ocean incineration of hazardous materials, nuclear detonations on or under island atolls, dumping of nuclear waste and hazardous chemicals in degradable containers, ocean usage for practice bombing and missile targets, or resource exploitation without accountability to those most directly affected. (Ada 1991)
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