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The regional level
National and regional ocean management are intimately linked, and one is not possible without the other. Without regional cooperation, national development would be handicapped in sectors where issues transcend the boundaries of national jurisdiction, such as fisheries of straddling stocks or transboundary pollution, or where economies of scale are needed, as, for example, in the advancement of the marine sciences or the development of marine technologies. Without strong national infrastructures and broad national constituencies, regional organization remains ineffective. National and regional institutional frameworks will have to be matched to be able to interact. Capacity has to be built nationally and regionally at the same time.
The development of regional organization is bound to be flexible and varied, depending upon the characteristics and needs of the region concerned: whether it is centred an enclosed or semi-enclosed sea, consists of a group of island States, a group of mainland States, or States bordering a wider ocean, and whether the countries included therein are developing States, industrialized, partly autonomous territories, or a combination thereof. Another consideration to be taken into account is the impact of overlapping continent-centred regional development and its institutions such as the Regional Economic Commissions, Regional Development Banks, and other regional institutions, and whether of an economic, environmental or scientific/technological character. Thus the Mediterranean Regional Seas Programme necessarily interacts with the European Community and its institutions, as well as with the Organization of African Unity and the League of Arab States.
The most advanced example of regional cooperation and organization for integrated ocean management, cited in the Secretary-General's Report on the Law of the Sea, is the Indian Ocean Marine Affairs Cooperation (IOMAC), established in 1990. Its purpose, as stated in its Plan of Action is:
to take measures to integrate the marine sector into development strategies; to give due regard to the rights and needs of land-locked and geographically disadvantaged States among them; to take measures to establish a system to acquire and disseminate marine affairs information; to make, harmonize or strengthen arrangements in implementing cooperation with other States active in the region; to formulate and establish marine affairs policy, and to coordinate them at the national and international level; to develop and maintain safe and efficient maritime transport services; to support and strengthen existing marine affairs institutions and, where necessary, to establish new ones; to influence international organizations to accord greater emphasis to marine affairs; and to cooperate with each other's initiatives and to take all measures necessary in accordance with these principles.
IOMAC's scope is more comprehensive than that of any other regional organization: both functionally - it covers all uses of the ocean - and geographically, it includes the hinterland of land-locked States, which are as yet excluded from other programmes such as the UNEP-initiated Regional Seas Programme. The inclusion of land-locked States into regional arrangements is not only highly desirable from the point of new of economic development and distributional justice, it is an absolute necessity for environmental conservation, considering that pollution is largely carried by rivers which may originate in land-locked countries. The inclusion of landlocked States in regional seas programmes will require institutional changes within the land-locked countries themselves, just as in coastal States. The scope of the new institutional framework in land-locked countries will have to be integrated with the policy and management of aquatic resources, including freshwater resources as well as seawater. A unique precedent for this integration is given by Sri Lanka's institutional framework NARA (National Aquatic Resources Agency) which covers both freshwater and marine aquatic resources. IOMAC's institutional framework is at an early stage of its evolution, and will have to develop in harmony with the national institutions of its Member States.
UNEP's Regional Seas Programme, a pioneering effort initiated in the wake of the 1972 Stockholm Conference on the Human Environment, started on the basis of the then still prevalent sectoral concept of action and institution-building. UNEP's focus is the conservation of the environment. Its very establishment as a separate organization, just as the establishment of separate Departments of the Environment within States, reflects the kind of sectoral approach that has now reached its limits. UNEP itself, however, and, in particular its Regional Seas Programme, has been a catalyst in the great transformation in thinking that has marked the two decades from Stockholm (1972) to Rio de Janeiro (1992), from "Environment" to "Environment and Development."
The Regional Seas Programme quickly realized that, to be effective in the protection and conservation of the marine environment, one had to deal with all major uses of the sea as well as a number of land-uses. Activities in the Regional Seas' Plans of Action indeed cover a wide range, from fisheries and aquaculture to the extraction of energy, from coastal management to the development of technology. The Mediterranean Blue Plan is an exemplary document, from the point of view of the broadness of its scope. The institutional framework, however, remained as it has been conceived in the early seventies: sectoral. Policy is defined by a biannual meeting Of States Parties to the Barcelona Convention. States are, of course, free to send whomever they wish to represent them at these meetings. Thus far, however, it has generally been the Ministries of Foreign Affairs that have been represented. There have been no linkages to other national government departments engaged in ocean affairs, such as agriculture and fisheries, energy, mining, shipping, science and technology, etc. Clearly, here is an example of the "institutional gaps" noted in the Report of the WCED.
The objective of sustainable development and the integrated nature of the global environment/ development challenges pose problems for institutions, national and international, that were established on the basis of narrow preoccupations and compartmentalized concerns. Governments' general response to the speed and scale of global changes has been a reluctance to recognize sufficiently the need to change themselves. The challenges are both interdependent and integrated, requiring comprehensive approaches and popular participation.8
At the regional level, just as at the national level, "there is recognition of the need to integrate science, technology, and economics more closely into the decision-making processes involved," as stated in the Secretary-General's Report on the Law of the Sea (November 19,1990).
The changes needed at the national and at the regional level thus are strictly interrelated. If, at the national level an institutional infrastructure is created that transcends the sectoral approach and integrates decision-making on ocean policy, it will be this infrastructure, rather than a sectoral ministry, that will be the "constituency" on which the Regional Seas Programme will be based. This will change the character of the Meeting of States Parties, which will become a form of regional "Ocean Assembly," also including non-governmental sector as well as the intergovernmental organizations engaged in marine affairs at the regional level.
As regards the non-governmental sector, an interesting precedent is given by the Council of Europe's system of representation at meetings of the North-South Institute in Lisbon. Building on an earlier precedent set by the International Labour Organisation (ILO), this system provides for each national delegation to consist of four members, one representing the government, one the parliament, one the local authorities, and one the NGO sector including science, each delegate acting and voting on his/her own. This is to ensure the participation of all sectors in decision-making and to facilitate effective implementation of decisions taken in common.
As far as the intergovernmental organizations are concerned, most of them (FAO, IOC/UNESCO, IMO) already have regional offices in most of the regions. They have made crucially important contributions to regional development and cooperation. They must now be organically linked in the regional infrastructure responsible for integrated policy-making in ocean affairs. They would then become the regional executive departments responsible for the implementation of this commonly designed, integrated regional ocean policy.
Thus while every existing institution should be utilized as a building block for the new, integrated system, there will also be a need for the establishment of some new institutions at the regional level: first of all the Regional Centres for the advancement of marine sciences and the development of marine technologies, prescribed in articles 276 and 277 of the United Nations Convention on the Law of the Sea.
A great deal of work has already been done on the establishment of these Centres. The initiative came from the International Ocean Institute which, in 1986, published a policy study, followed by a feasibility study, for a Mediterranean Centre for Research and Development in Marine Industrial Technology. The project was endorsed by the Government of Malta, and supported by UNEP and UNIDO - a cooperation symbolic, one might say, of the integration of Environment and Development.
The main question was how to create such a centre without creating a new bureaucracy, and how to generate investments rather than create costs. The answer was sought in a flexible, decentralized, project-oriented network with a small coordinating centre, patterned after the European EUREKA system. This is a new, highly cost-effective form of industrial/scientific, private/public, international cooperation in the development of research and development in high technology, which, in the span of just a few years, has generated investments of tens of billions of dollars. The problem was: to open up the EUREKA formula to the participation of developing countries, and to pay for this participation with public funds (World Bank, UNDP, regional banks, etc.).
Obviously there is a need for such an institution, and other initiatives are now converging with the Maltese. One should mention in particular the project for the establishment of an Arab-European Centre for Environment and Development, initiated by UNDP and to be located in Cairo, which, among other things, will deal with the development of pollution-combatting technologies and with coastal management.
The newly established "Route des Hautes Technologies de l'Europe du Sud" is another example. This initiative seeks to consolidate into a South-Western European "Silicon Valley" the research and development centres of various high-technology industries: biotechnology, information technology, pharmaceuticals - all relevant to marine technology - in Northern Italy, Southern France, and North-Eastern Spain. This initiative stimulates, in turn, new relationships between industry and university research resources: a new source of science-based productivity for the region which could, in time, extend to embrace, first, collaboration with an analogous subregional structure nearby: the so-called "Pentagonale," developing between Italy, Yugoslavia, Austria, Czechoslovakia, and Hungary, and later also the southern shores of the Mediterranean, beginning with the States of the Maghreb.
Equally obviously, there is need for coordination and integration of all these initiatives into an effective network that should be beneficial to all participants through the synergism it could create. Furthermore, there is no reason to delay the participation of the developing countries of the Southern and Eastern Mediterranean shores which can and must be achieved if the goal of sustainable development is to be pursued in earnest.
In the meantime, an analogous initiative has been taken by Venezuela for the establishment of such a system in Latin America and the Caribbean. President Perez announced it in October, 1990, under the title Project Bolivar. Taking his cue from UNIDO, he, too, proposed a scheme for joint research and development in high technology on the pattern of EUREKA. A sector devoted in particular to the development of marine technologies, starting with ocean energy, aquaculture and depolluting technologies, will be part of this system, just as EUROMAR - especially devoted to the development of marine technologies - is part of EUREKA. The coordinating Centre of the Caribbean system for R&D in Marine Industrial Technology will be at INTECMAR, an Institute at the Simon Bolivar University in Caracas, Venezuela.
Other types of regional institutions may become necessary as new activities emerge. Data banks, the dissemination of information as well as training, will be increasingly important at the regional level. Examples in this latter area are the regional training programmes carried out by the International Ocean Institute in the Mediterranean, the Caribbean, and the Indian Ocean.
A second major gap in regional cooperation in the seas and oceans exists with regard to the management of non-living resources. The Law of the Sea Convention mandates regional cooperation with regard to fisheries, the protection of the environment, marine scientific research, and the development of technology. It is silent with regard to offshore oil and gas development, inasmuch as this was assumed to be carried out strictly under national jurisdiction.
As it turns out, however, there may be as many straddling oil fields as there are straddling stocks of fish. During the past years, these have given rise to numerous shelf disputes and conflicts - whose solution often was costly, and inconclusive. In recent years there has been a new trend to obviate such disputes through the creation of Joint Management Zones, in some cases, with an elaborate institutional framework for joint exploration, production, and profit-sharing. An example is the Memorandum of Understanding between Thailand and Malaysia (signed on 21 February 1979, entered into force on 15 July 1982) on the establishment of a joint authority for offshore oil and gas exploitation. A similar agreement between Thailand and Vietnam is also reported to have been concluded recently. Yet another example could be the Agreement between Australia and Papua New Guinea (December 1978). The International Herald Tribune recently (24 November 1990) carried an article, "Nations shelve old disputes for more oil," illustrating this trend: "Spurred by the need to reduce reliance on energy imports and increase economic growth, countries of South-East Asia are shelving longstanding maritime boundary disputes and agreeing instead to joint development of offshore oil and gas zones that have been subject to overlapping claims." This trend also affects wide areas of the South China Sea.
Such formulas might be generalized and applied to regional seas as a whole. The regime might even include land-locked States (as, we have seen, does IOMAC), thus solving a problem of distributive justice which the United Nations Convention on the Law of the Sea had left unsolved.
One further aspect of the emerging regional institutional framework for sustainable development should be mentioned: peaceful uses; reservation for peaceful purposes; and naval issues, in the context of surveillance and enforcement. This is particularly important in consideration of the imperative linkage between disarmament, development, and the environment. As the Report of the World Commission on Environment and Development states,
Among the dangers facing the environment, the possibility of nuclear war is undoubtedly the gravest. Certain aspects of the issues of peace and security bear directly upon the concept of sustainable development. The whole notion of security as traditionally understood - in terms of political and military threats to national sovereignty - must be expanded to include the growing impacts of environmental stress - locally, nationally, regionally, and globally. There are no military solutions to "environmental insecurity."9
The 1990 Secretary-General's Report on the Law of the Sea summarizes surveillance and enforcement needs with regard to regulations for safety of navigation, conservation of living resources, preservation of the environment, conduct of scientific research and survey, prevention of customs, fiscal, immigration and sanitary laws, and implementation of special measures that regulate nuclear-powered vessels, or those carrying dangerous or noxious substances. It points out that surveillance would also be called for in the suppression of illicit drug trafficking and to exercise civil jurisdiction over liabilities incurred or assumed during a voyage through coastal State waters, and some other sea uses.
The Report on the Law of the Sea also states that:
It may be important to note the expert view that regional agreements or other arrangements are likely to prove the most useful, considering that maritime security, for many countries, is more linked to tensions relating to resources and to the delimitation, policing and protection of EEZs. Ecological threats to the marine environment are also increasingly seen as a more serious threat to national security.10
The Report then cites two examples where regionalization of surveillance and enforcement is under discussion or in progress, namely, the South Pacific and the Eastern Caribbean.
Arrangements for joint surveillance and enforcement, and all other peaceful uses of navies, could be complemented by the establishment of nuclear weapons-free zones, as in the South Pacific, and the Secretary-General's Report notes that:
Committee-level consensus was reached at the Fourth Review Conference of the Treaty on Non-Proliferation of Nuclear Weapons on the importance for disarmament of nuclear weapon-free zones based on arrangements freely arrived at among States of a region.... The Conference Committee agreed that note should be taken of the 1986 Treaty of Raratonga, which is now in force....
The integration of denuclearization as a means of enhancing environmental security at the regional level, and of joint regional surveillance and enforcement measures to create economies of scale, has important institutional implications. It requires linkages between the regional institutional framework and national navies, departments of defence and coastguards, as well as linkages between the regional institutional framework and global arms control and disarmament efforts. Surveillance and enforcement may give rise to disputes. Therefore, an effective system for the peaceful settlement of disputes will enhance the acceptability of surveillance and enforcement.
An essential institutional element in the management of complex legal and economic relationships among sovereign States, such as those arising in the course of interpreting and applying the new regime of the oceans, is a scheme for the amicable resolution of disputes. The United Nations Convention on the Law of the Sea offers the most comprehensive and advanced international dispute settlement system so far devised. It incorporates the traditional choice of the means of resolving disputes, together with a residual system of compulsory settlement applicable to a wide range of disputes including those to which States, international organizations or private persons may be parties. The system, which provides inter alia, for recourse, in appropriate cases, to the International Court of Justice as well as to a new judicial institution, the International Tribunal for the Law of the Sea, and for important roles for specified "competent international organizations" in the arbitration of certain disputes, needs to be complemented through linkages to national judicial and enforcement systems for its full potential to be achieved.
The Caribbean Regional Seas Programme, through the Cartagena Convention, provides for a regional system for the peaceful settlement of disputes. In some cases, such regional systems may be desirable to reduce the cost of dispute settlement and enhance confidence: in judges or arbitrators knowledgeable of local circumstances and familiar to the litigants.
The global level
As the Secretary-General's Report on the Law of the Sea points out:
While there has been a long-standing international consensus that the main opportunities for internationally agreed regulations and other actions lie at the regional level, it is also clear that regional action alone will not suffice in every case. Some environmental problems - ozone layer, hazardous wastes, loss of biological diversity and climate change - are understood to require global action, supplemented by regional arrangements.... The eight regional seas conventions and their associated protocols also require close global coordination in order, inter alia, to avoid codification of conflicting interests for parties adhering to several regional conventions, as well as to global conventions, including particularly the Convention on the Law of the Sea.
In the scope of the Regional Seas Programmes now broadened to integrate environment and development and cover all major sea uses, one should lengthen this list of global issues calling for interregional action. A number of shipping problems as well as the problems associated with highly migratory species (especially tuna) in the fisheries sector belong to this category. So do many aspects of marine scientific research, also disarmament issues.
The United Nations Convention on the Law of the Sea contains about 60 references to the "competent international organizations" - named only once, in annex VIII of the Convention: IMO, for issues arising from shipping and vessel-source pollution; FAO, for fishing; IOC/UNESCO, for marine science; UNEP for the protection of the marine environment, to which one has to add the International Seabed Authority (ISA). These are the best prepared to take care of "global issues" and of coordinating interregional issues, besides the many other tasks which the Convention imposes on them: from the establishment of lanes for vessel traffic control to the assistance to be given to developing countries in all sea uses and coastal management and the development of human resources.
There are, besides the above-mentioned five, other UN Agencies involved in ocean affairs: above all, UNCTAD (in the economics of shipping; commodities, including those produced from the sea; technology transfer; the development of land-locked and small island States); UNDP (development cooperation in the marine sector); WMO (ocean/atmosphere interaction); ILO (labour in the marine sector); WHO (health in the marine sector). There are, as a matter of fact, as many specialized agencies and institutions involved in marine affairs at the international level as there are government departments within nation States. This entire institutional framework is in need of exactly the same kind of overhauling as national government structures. Each institution needs to be strengthened internally, in structural as well as in financial terms, to be able to cope with its new tasks; and inter-agency linkages must be intensified or newly created, to enable these institutions to generate an integrated oceans policy.
There are, furthermore, a growing number of increasingly important NGOs, who must also be included in the making of such a policy and in the monitoring of its execution. It is significant, for example, that they were represented at UNCED in Brazil, 1992, by as many as 30,000 delegates from all parts of the world!
Individually, the "specialized agencies" dealing with ocean affairs will have to undergo a twofold development - both aspects being interconnected. First, they will have to develop from a merely coordinating role to an operational role, and this development is well on its way.
At the time of their establishment, nearly half-a-century ago, the responsibilities of intergovernmental institutions consisted essentially in coordinating the activities of a limited number of mostly industrialized countries, each with its own well-developed scientific and technological infrastructure. Today this membership has tripled and includes a majority of developing countries lacking this infrastructure. Coordination is not, itself, operational. Assistance in the building of national infrastructure, which is what is required today, is necessarily operational. The ISA, which is the youngest of these organizations, clearly points in this direction. The ISA is itself a producer of goods and services. Training/development of human resources; marine scientific research; sustainable technology development; environmental monitoring; hydrological measurements; the establishment of traffic lanes; a far more active role in the management of fisheries; the development of the relevant technologies: all this will transform the "competent international organizations" increasingly into a global service sector in the twenty-first century. The second change follows from the first. New ways of paying for these goods and services will have to be devised.
The Report of the World Commission on Environment and Development stresses the need for new sources of revenue and automatic financing to pay for sustainable development. It cites a series of studies and reports which have identified and examined a growing list of new sources of potential revenue, including:
revenue from the use of international commons (from ocean fishing and transportation, from seabed mining, from Antarctic resources, or from parking charges for geostationary communications satellites, for example).
particularly considers that the proposals regarding revenue from the use of international commons and natural resources now warrant and should receive serious consideration by governments and the General Assembly.
The IOI has advocated the introduction of such a tax ever since the first preparatory efforts in 1967. We pointed out, at that time, that a tax, to be successful, needs two things: a clearly defined institutional infrastructure and a clearly defined purpose, close and tangible to the taxpayer. The institutional infrastructure is now in the making, the goods and services it is to produce define the purpose of the tax.
If closeness to the taxpayer is important, it will be useful to collect the tax at the regional level. Regional trust funds already exist within the framework of the Regional Seas Programmes. In most cases, they are severely underfunded thus flouting the purpose of sustainable regional development. In the Mediterranean, the Blue Plan estimated that about 15 billion dollars would be needed during the current decade to cope with the sources of land-based pollution and install an economic regime of sustainable development. Only 1 billion dollars has been collected so far.
The International Ocean Institute recently completed a study, financed by the Ford Foundation, on "Alternative Modes of Financing the Mediterranean Trust Fund for the Conservation of the Mediterranean Environment." The study is a pilot experiment. The Blue Plan tells us that, today, about 100 million tourists visit the Mediterranean annually, and by the end of the century, it is anticipated that they will be 300 million annually. They have a vital interest in the conservation of the Mediterranean environment, so if it were to be allowed to deteriorate further, that would be the end of Mediterranean tourism. On the other hand, tourists' budgets allow for some flexibility; tourism, after all, is an extra, if not a luxury.
The IOI distributed 3,000 rather complex questionnaires in several languages among Mediterranean tourists in the summer and autumn of 1990. The replies have now been carefully evaluated, and the unambiguous result is that tourists are largely unaware of the existence of the Mediterranean Action Plan and Trust Fund, but they would be happy to contribute up to $5 a person per vacation to the Trust Fund. This alone would be sufficient to pay for the entire Mediterranean Action Plan gradually. The IOI study also proposes a number of mechanisms for the cost-effective collection of such a tourist tax. If this pilot experiment were to be successful, similar taxes might be imposed on other ocean uses, whether regionally or globally.
Another new, effective way of generating international income for the action plans of the specialized agencies would be participation in the Regional, EUREKA-type Centres for the development of environmentally sustainable technology (including the development of pollution-abating technologies), described in the "Regional Level" section of this annex.
As to improving coordination among the agencies and institutions at the global level, so as to enable them to formulate an integrated ocean policy, the Secretary-General's Report on the Law of the Sea contains a section, entitled "Cooperation within the United Nations System," in which it enumerates a number of coordinating mechanisms such as the Joint Group of Experts on Scientific Aspects of Marine Pollution, the Joint United Nations/IOC Programme on Ocean Science in Relation to Non-living Resources; the Joint United Nations/FAO/IOC Aquatic Sciences and Fisheries Information System (ASFIS); or the Intersecretariat Committee on Scientific Programmes Relating to Oceanography (ICSPRO). The Report also points out that:
The Office (for Ocean Affairs and the Law of the Sea of the UN Secretariat) is currently preparing, jointly with the relevant agencies as appropriate, its contribution to the comprehensive report with recommendations for action to be drafted by the Conference secretariat for the Preparatory Committee on the topic of protection of the oceans and all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use, and development of their living resources....
Clearly, progress is being made. But all these initiatives still fall short of the making of a comprehensive, integrated ocean policy, based on the awareness that "the problems of ocean space are closely interrelated and need to be considered as a whole."
As already noted by the Delegation of Portugal, just before the end of UNCLOS III, a forum is needed where States can discuss the problems of ocean space in their close interrelation, where they can consider them as a whole, and take decisions on an integrated ocean policy. This then can be implemented by the specialized agencies and their international civil service functioning like government departments at the international level.
Such a forum, which must also include the non-governmental sector, could take a number of forms: a permanent Conference, like UNCTAD; a Special Session of the United Nations General Assembly, perhaps every two years; a wider mandate to the periodic meeting of States Parties to the Convention, already foreseen in the Convention; or some other form. But such an "Ocean Assembly" is an absolutely essential part of the institutional framework for ocean governance in the twenty-first century. Multiple, functional representation within each delegation, as proposed for the regional "ocean assemblies" - and as practiced by some States (e.g., Canada) throughout UNCLOS III! might solve the problem of grass-root participation in decision-making.
Considering the "porousness" of the boundaries between levels of governance national, regional, global - this institutional framework is highly interdependent and interlinked.
Clearly, the structure of international relations has been in a process of transformation for some time. Suffice it to refer to the Preamble of the United Nations Charter. The opening words refer to the fact that "We, the Peoples of the United Nations" have undertaken and shall undertake in the present and in the future a number of principles and obligations. While the basis of the international system is still the nation State - in ocean affairs as in other sectors of international relations increasingly, the pivot of the system is shifting from the national to the regional level in production, trade, financing, just as in the ocean sector. The regional level of organization cannot function properly, however, without effective national infrastructures and proper linkages to national and local levels, or without an effective global institutional framework and proper linkages to it. In the marine sector - due to the very nature of the marine environment in which everything flows and everything is linked together - the development is most advanced and offers concrete opportunities, or more than that, an ineluctable necessity, for action. Here we can build the prototype for global governance in the twenty-first century.
In a democratic society, decisions should be taken at the level closest to the individual: family; municipality; province; national government; regional organization; global organization - rising on the scale as issues transcend boundaries of jurisdiction. It should be noted also that the emergence of new levels of decision-making and governance, progressively internalizing "externalities," does not abrogate the principle of national sovereignty and the equal sovereignty of all nations. It does not abruptly - or idealistically - change the structure of international relations which will be based, for some time to come, primarily on the nation States, still the main actors on the international scene, even though others - non-governmental, intergovernmental - are beginning to play an increasingly important role.
What it changes, instead, is the nature of Law, and this, again, is happening at intranational as well as international levels concurrently. What it implies is an enlargement of the concept of "legislation": its loosening up over an ever-wider range of "laws" or "norms," "regulations," "directives," "recommendations," and "opinions." This appears to be a general phenomenon, also at the level of federal or even unitary States. It is connected with the role of planning. Planning transforms and enlarges the concept of law. Planning plays a vital role in the ocean regime. Without long-term planning there is no solution to the environment/development problem: as clearly stated in the Brundtland Report. The apparent contradiction of contempary trends: towards more and more "privatization" and "free enterprise" on the one hand, and towards global planning to save our planet on the other, must be resolved through new forms of public/private cooperation.
Planning is a function distinct from that of law-making. It really adds a fourth dimension to government or governance. Western constitutional theory is as deeply imbued with the notion that government can only have three branches as people used to be with the conviction that space had three dimensions. Then came Einstein and proved that there was a fourth dimension, time. With planning, a fourth dimension is added to government. It may even turn out that government has more branches or dimensions than four. Chinese constitutional theory recognizes five. Riemann space is multi-dimensional. We must shed Western prejudices as our interests curve round the globe, into outer space, into ocean space.
Plans do not have the character of "laws" in the technical sense. It is not of decisive importance whether they are "enforceable" or not; it is far more relevant that they benefit those who comply, and exclude from benefits those who do not comply. In other words, they are based on cooperative rather than coercive law. And this accords with the sovereignty of nations.
As Ambassador Pinto of Sri Lanka put it, one of the innovating features of the new Law of the Sea is indeed that it recognizes and gives textual expression to a "new international law of cooperation" which is the cornerstone of the United Nations Charter and must prevail in the twenty-first century. What seems to be lacking is the will of certain States to live up to their legal commitments in this respect. It is our obligation to accept, and live up to, the interdependence that binds us together rather than the atavistic forces that try to tear us apart. Our globe's landmasses, oceans, atmosphere and outer space, as well as the manifold species of fauna and flora that enrich our globe, must be accepted and cherished as the global commons of humankind.
1. WCED. Our Common Future, Oxford: Oxford University
Press, p. 310.
2. Ibid, p. 16.
3. Ibid, p. 312.
4. Ibid, p. 264.
5. United Nations Doc. A/45/712, 16 November 1990.
6. United Nations Doc. A/45/721, 19 November 1990, pp. 10-11.
7. Centre for the Study of Democratic Institutions. The Ocean Regime, Santa Barbara, CA, 1968.
8. WCED. Our Common Future, Oxford: Oxford University Press, p. 9.
9. Ibid, p. 19.
10. Secretary-General's Report on the Law of the Sea, pp. 14-15.
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