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Part IV: Ocean governance: Global level
Ocean governance and the global picture
The competent international organizations: Internal and external changes
Information and communication on the oceans
Collective security and the changing role of navies
Ocean governance and development: The question of financing
An ocean assembly
Ocean governance and the global picture
Jan van Ettinger, Alexander King, and Peter Payoyo
I. Ocean problems are global problems
II. The common heritage of mankind
III. The common heritage of mankind and four other problem areas
IV. Global governance and the four problem areas
I. Ocean problems are global problems
In the Preamble to the United Convention on the Law of the Sea, signed at Montego Bay in December 1982, recognition is made that "the problems of ocean space are closely interrelated and need to be considered as a whole." The acknowledgement of this fundamental unity of concerns within the marine sphere has been a first significant step that necessarily leads to further recognition that ocean space problems are inseparable from the problems associated with land and with the air. The fact, for instance, that 90 per cent of ocean pollution results, through river run-offs and via the atmosphere, from land-based human activities encourages a rethinking of the meaning of ocean problems. Ocean problems can no longer be viewed in isolation from those on land and in the atmosphere. There are two main reasons for this: one is economic and the other, environmental.
As a result of technological as well as world population growth, the variety and intensity of uses of the oceans have been rapidly increasing. A meaningful view of the totality of these uses, and the problems of the oceans that they imply, is given in the 1982 Convention on the Law of the Sea. Activities on land and in air (and outer) space have, likewise, become inextricably related to human activities in the oceans. Consequently the environmental and economic impact of these activities are part of the ocean problems that have, therefore, become global in magnitude. Some examples of the vital economic relationship between human activities in the oceans and on land or in air (and outer) space are following:
- harvesting living resources, fisheries and aquaculture, is part of the global food supply;
- mining the ocean's minerals is becoming integrated into the world's raw materials system;
- shipping and navigation form a vital part of the world trade and communication network;
- exploiting submarine oil and gas deposits are an increasingly important element of the world's energy sources, making up more than 20 per cent of world supplies;
- tapping the endless movement of tides and waves and the ocean's thermal gradient have a large potential for future energy supply;
- developing marine technologies is increasingly carried out in symbiosis with other advanced technologies; and
- the global armaments race already embraces lands and oceans, as well as (outer) space.
These human activities generate waste, which increases in quantity, variety, and perniciousness. The resulting ocean-based pollution, interacting with the much more considerable land-sourced pollution of the oceans, conveyed through the atmosphere and river run-offs, exacerbates the already critical pollution of the entire planet. Thus, most of today's technology spews out effluents of radioactive materials and non-biodegradable toxic chemicals which persist and diffuse throughout the ecosystem. This bring us to a second, environmental, reason why the marine sphere cannot be seen in isolation from the land and air spheres: pollution consolidates land, air, and oceans into a truly single physical space.
Inasmuch as the activities in the oceans cannot, therefore, be viewed in isolation from those on land or in air (and outer) space these activities being qualitatively the same with respect to both economic aims and environmental consequence - the problems of the oceans must not be seen in isolation from the problems of land and air (and outer) space. Ocean problems are part and parcel of the totality of global problems.
Economic and environmental considerations in the appreciation of ocean problems cast a notion of ocean management which relies on the key importance of the biosphere - the ecological whole consisting of the oceans, land, and air. It is amazing to realize that a basic scientific truism which states the fundamental ecological unity of oceans, land, and air has only been established recently as a politically significant premise in understanding worldwide problems and in formulating approaches to their management and resolution.
The marine sphere forms not only an inseparable element of the biosphere. The oceans also play a central role in the regulation of the climate of the planet. Global climate change in the direction of warming has become a concern inevitably connected with the processes and changes taking place in the oceans. Should global warming materialize, sealevel rise will change the face of the planet. Climate change boosts a perspective on the oceans that unifies its peculiar problems with universal problems.
Ocean governance in the 1982 Convention on the Law of the Sea is viewed as a balanced matrix of ocean activities or uses, on the one hand, and protection and preservation of the marine environment, on the other hand. The guiding inspiration in evolving a comprehensive regime for this purpose was the concept of the Common Heritage of Mankind. This concept forms the core precept, the heart, of ocean governance in the new law of the sea. However, though its application is limited to the international seabed, its significance as a foundational concept in the tackling of ocean problems is not precluded.
Keeping in mind the relationships between ocean and global problems, the following questions can be raised: How far should the concept of the Common Heritage of Mankind and its institutional implications be extended to the management of other areas of global concern? How far can ocean governance in the 1982 Convention on the Law of the Sea - with its guiding concept of the Common Heritage of Mankind - stand as a model for the management of other areas of global concern?
II. The common heritage of mankind
It was Ambassador Arvid Pardo of Malta who on 1 November 1967 first proposed that the new law of the sea must be based no longer on the notion of "freedom of the seas" but on a new concept, the Common Heritage of Mankind (CHM). He presented this concept as a novel legal principle worthy to be introduced in international law. With this concept began the "marine revolution." Professor Elisabeth Mann Borgese (1980) commented:
The basic principle, the motor force of the 'marine revolution,' is the concept of the Common Heritage of Mankind. It cannot be stressed enough that the adoption of this principle by the XXV General Assembly as a norm of international law marked the beginning of a revolution in international relations....
It is surprising, therefore, that the Law of the Sea Conference itself has done so little about elaborating the concept of the Common Heritage and giving it a clear definition in legal and economic terms. For the outsider or newcomer to the law of the sea, it is difficult to conceptualize the precise meaning of this concept which remains somewhat rhetorical and etherial. Yet the components of a definition are all in the present version of the Draft Convention, that is the Informal Composite Negotiating Text, and one might use the components drawn from four different Articles (136,137,140, and 145) to formulate a definition in two basic articles:
The Area and its resources are the Common Heritage of Mankind.
For the purpose of this Convention 'Common Heritage of Mankind' means that:
1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or person, natural or judicial, appropriate any part thereof. No such claim or exercise of sovereignty of sovereign rights, nor such appropriation shall be recognized.
2. The Area and its resources shall be managed for the benefit of mankind as a whole, irrespective of the geographical location of the States, whether coastal or land-locked, and taking into particular consideration the interest and needs of the developing countries as specifically provided for in this Part of the Convention.
3. The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked without discrimination and without prejudice to the other provisions of this Part of the present Convention.
4. Necessary measures shall be taken in order to ensure effective protection of the marine environment from harmful effects which may arise from activities in the Area, in accordance with Part XII of the present Convention."
In 1970, the UN General Assembly adopted Resolution 2749 declaring the CHM as the primal principle governing the exploitation of the international seabed. The CHM concept was thereafter given legal status in the 1982 Law of the Sea Convention (entered into force November 1994) as well as in the earlier 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage and in the 1979 Moon Treaty (both already in force).
The CHM concept underpins the whole process of sustainable development in the marine sphere and constitutes the basis for ocean governance in the new law of the sea. What cannot be overemphasized is that the CHM concept - with its developmental, environmental, and peace-enhancing approaches to the resolution of ocean problems - embodies the most comprehensive formula and rationale for the management of marine resources or the ocean environment. Thus, the concept has significant implications for the governance of world resources, in general, and of the biosphere as a whole.
It is said that in searching for a regime to govern the exploration and exploitation of nodules in the deep seabed, the international community found instead, through the CHM concept, the most advanced system for international cooperation in technology development and transfer, crucial in the bridging of the development gap, creating in the process the beginning of a new form of ocean governance, and world governance in the twenty-first century. (Borgese 1990) The growing impact of the concept, in the context of the process of its definition, is an outstanding development in international relations. (Postyshev 1990)
Acceptance of the CHM concept, although at present limited to areas like the international seabed area, could be an immensely important innovation in geopolitical thinking, introducing new ingredients of equity and social justice to political decision-making. In addition, the CHM concept introduces a totally new economic theory, transcending both the market theory and the central planning theory. (Borgese 1991 ) An emerging economics of the CHM, founded on a new economic philosophy, holds a potential to transform our present world!
Certain guiding principles of the CHM concept lend themselves for application to other areas of global concern. The five principles may stated (see Borgese 1980): first, the principle of non-appropriation which determines that no single State can claim exclusive title to the CHM; second, the principle of shared management which entails a new form of social relations based on an international regime of cooperation; third, the principle of "common benefit for mankind as a whole," implying an equitable scheme of distribution and redistribution of wealth; fourth, the principle of "use for exclusively peaceful purposes," which injects the notion of disarmament in the process of implementing the CHM concept; and fifth, the principle of conservation for future generations which reiterates the principle of sustainable development in the oceans.
Underlying these five principles is a system of peaceful settlement of disputes without which the CHM philosophy cannot be logically pursued. This makes the CHM a complete framework for the comprehensive process of global governance. Moreover, from an appreciation of the principles or attributes of the CHM, it becomes apparent that the CHM concept is in agreement with the fundamental principles and purposes of the United Nations.
From an institutional standpoint, the challenge posed by the CHM concept may be conceived as a problem of integration. The institutional mechanisms required to implement the CHM concept need to be unified in a new system of global governance. The model for this integration spans horizontal and vertical levels of governance.
At the horizontal level, integration takes place in two ways: first, among sectoral/disciplinary institutions (for example environment, defence) which have hitherto been operating independently from one another, and second, between the public and private sectors whose interactions point to the direction of more intense cooperation. At the vertical level, integration of national, regional, and global institutions concerned with similar issues is called for. Relevant to this is, for example, the proposal to establish an Ocean Assembly in the United Nations to fulfill the role of a global mechanism which addresses the domain of ocean problems: from policy setting, to operational activities, to dispute settlement. The institutional implications of the CHM concept constitute its strategic value in shaping the world of the twenty-first century.
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