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Part I: The existing framework for ocean governance
The United Nations convention on the law of
the sea: Sustainable development and institutional implications
Existing institutional framework and
mechanisms
The significance and cost of ratification of
the law of the sea convention 1982
The role of indigenous peoples in ocean
governance
I.
Introduction
II. The 1982 un convention on the law of the
sea
III. The convention's new institutions: The
international seabed authority and the enterprise
IV.
Legislative competence
V. Coordination of marine resource
institution
VI.
Conclusion
Notes
Christopher W. Pinto
Sustainable development
The word "development," in its international setting too readily associated with "economic development," refers here to the use or exploitation of a natural resource. The word "sustainable," which conveys the idea of holding up or support, in this context means development that is conservative, and is conducive to continued viability of a resource.
The term "sustainable development" which appeared in the World Conservation Strategy published in 1980 by the International Union for the Conservation of Nature and was adopted by the World Commission on Environment and Development, is used to describe management (i.e. regulation of use and exploitation, and conservation) of a given resource in such a manner that the benefits of the resource are optimized, that is, made available on an equitable basis to the largest number over the longest term. It requires the sparing and economical use of non-renewable resources, and maintenance of the productivity of renewable resources, as well as avoidance of or compensation for, irreversible effects caused to the resource through use or exploitation that does not meet these standards.
Such equitable allocation of benefits from a resource necessarily implies regulation of access to the resource, whether that resource is a stock of fish, a deposit of minerals, or the air or water; and whether the resource is fixed, or mobile and fluctuating across national boundaries, or beyond national jurisdiction in areas sometimes referred to as "global commons." The Report of the World Commission declares that
... physical sustainability cannot be secured unless development policies pay attention to such considerations as changes in access to resources and in the distribution of costs and benefits. Even the narrow notion or physical sustainability implies a concern for social equity between generations, a concern that must logically be extended to equity within each generation. (emphasis added)1
Thus, according to the Report, "sustainable development" requires, inter alia, (1) "that [the] poor get their fair share of the resources required to sustain [economic] growth"; and (2) "that those who are more affluent adopt lifestyles within the planet's ecological means.... Painful choices have to be made...." The Report is right to conclude, therefore, that "sustainable development" implies nothing less than the "progressive transformation of economy and society"; and to emphasize that "in the final analysis, sustainable development must rest on political will."2
It follows that "changes in access to resources and in the distribution of costs and benefits" can be accomplished equitably only through the establishment of objective standards and the corresponding regulative practices applicable to a comprehensive range of activities having an impact on these resources; and further, that such standards and practices should be based on the best available scientific evidence. The establishment of such standards and practices, as well as the evaluation of scientific evidence, the monitoring of compliance, and the application of the corresponding sanctions do, however, call for decisions based on judgement, and judgement, in turn, is necessarily influenced by the dominant system or values being applied. Inevitably, grave disparities in the economic needs of populations and their capacity for implementing action, will result in wide variations among the judgements arrived at (as articulated by their governments) and accordingly, the basis for regulating and monitoring access and applying sanctions should be some agreed system of values. That system could be one derived from a single dominant and effective ideology, for example free enterprise; or the system might be based on a synthesis of values arrived at after negotiation among the adherents of different ideologies. The latter may be more difficult to achieve, but could enjoy wider support and may be worth striving for.
As the Minister for Development Cooperation of the Netherlands observed:
We need a global mixed economy including a strong and clear international framework of powerful public institutions, a kind of global public sector. We need an internationalization of the concept of the welfare state with international transfers to correct gross inequalities. We need an international pluralistic democracy within which developing countries can participate effectively in international decision-making.3
The principles and rules of law which are to be derived from the concept of sustainable development,4 as well as the institutions created to implement them, must take account of existing variations and disparities in the economic needs and capacities of populations as reflected in the different policies articulated by States. Sustainable development is not to be understood, after all, as merely implying "sustainable economic development," for then one must surely ask "which country's economic development is involved"? Clearly, to "sustain" the economy of a highly industrialized country, dependent on escalating consumption, it would take proportionately much more from a given resource than it would to "sustain" the economy of one of the least developed countries, so that such a meaning for the term would merely contemplate perpetuation of the environmentally less-than-satisfactory status quo. Similarly, the term "sustainable" is apt to mislead if it is used, as is done occasionally, in such contexts as "sustainable industrial development" or again, "sustainable energy strategy." Such uses merely raise questions: whose industrial development? whose energy strategy? and make us forget that it is sustaining the environment, sustaining the resource, that is called for, and not the sustaining of any one country or group of countries, perhaps in the very pattern of production and consumption that has brought some parts of the environment to the threshold of collapse.
Institutional implications
These thoughts on the concept of sustainable development suggest four sets of implications as regards its implementation in the field of marine affairs, or indeed in any other. First, the holistic approach adopted by the UN Convention on the Law of the Sea in declaring at the outset that "the problems of ocean space are closely interrelated and need to be considered as a whole,"5 is of particular importance in formulating principles and rules of law for achievement of the aims of sustainable development, given (a) the multiplicity of factors, scientific, economic, social, and political which need to be taken into account in the process; and (b) the number and variety of marine resources, management of each of which must be conceived and carried out after taking into account management requirements of the others.
A second set of implications which follows from the first, is that there must be universal participation in that endeavour: every State, irrespective of its social and economic system, and its level of economic development must be recognized as having both the right and the duty to contribute to achieving sustainable development of a resource.6 Three implications derived from the principle of universal participation are of special importance:
a. Participation by States must be based on the principle of the sovereign equality of States proclaimed in the Charter of the United Nations and repeatedly reaffirmed through its organs.7
b. Universal participation is optimized when all States are enabled to possess the essential equipment and capacities (finance, technology, science) to take part effectively in making and implementing decisions.8
c. Since the capacities of States to participate may be expected, in the short and medium term, to vary considerably, equity would prescribe that implementing sustainable development allows for a system or balanced differential obligation, that is each State would be called upon to undertake obligations to contribute to the process which takes into account its capacity to do so.9
Thirdly, for development of a resource to be sustainable there must be regulation of access to it. The rules governing access to the resource, which must reflect, in the words of the Brundtland Report "a concern for social equity between generations, a concern that must logically be extended to equity within each generation,"10 should (a) seek to give effect to these equities in a manner determined by universal participation, (b) be devised, formulated, and applied in a timely manner so as to prevent, rather than merely be the response to, irreversible depletion or degradation of the resource, as well as personal injury and damage to property (preventive or "precautionary" principle);11 and (c) be based on the best scientific information and data available.12
Finally, the implementation of the holistic approach, universal participation and regulation of access to the resource require orderly cooperation at global, regional, State, and community levels. The promotion and ordering of wills, whether of States or individuals, to cooperate require the application of at least two institutions: organization and law. As to organization, as one authority puts it:
By binding people together in a long-term multilevel game, organizations increase the number and importance of future interactions and thereby promote the emergence of co-operation among groups too large to interact individually.13
Law, by establishing obligations through rules and mechanisms aimed at securing compliance, supports or substitutes the will to cooperate when changes in circumstances have weakened or removed the original impulse to do so freely. Law and organization must together provide for one or more systems for the orderly settlement of disputes, to deal with possible infractions of rules and the protection of the rights of affected individuals,14 the latter aspect implying, in turn, the early development of rules relating to liability for damage, as well as of efficient and effective procedures for the presentation of claims.15
II. The 1982 un convention on the law of the sea
In considering the extent to which existing international institutions are adequate to the task of making a reality of the concept of sustainable development in the field of marine resources, the obvious starting point is the 1982 UN Convention on the Law of the Sea. Designed to reflect elements of the "New International Economic Order" and to establish the legal content of the concept of the "common heritage of mankind," the Convention gives expression precisely to those elements of universal participation, equity and balanced reciprocal obligation, transference of funds, science and technology to the developing countries, and regulation of access to shared natural resources, that are also inherent in the concept of sustainable development. The Convention, moreover, adopts a holistic approach to marine resources. Recognizing that "the problems of ocean space are closely interrelated and need to be considered as a whole," it deals with a comprehensive range of subjects and issues of the law of the sea. Some (for example concerning seabed mining) are treated in detail, while in respect of others (e.g. marine environment, marine science, and technology) the Convention serves as an "umbrella" or "framework" treaty, laying down broad cooperative undertakings, foreseeing that detailed commitments would be negotiated and included in supplementary agreements.
The Convention is replete with provisions which call for cooperation among States, among States and international organizations, as well as among international organizations themselves, that have as their overall objective the conservation of marine resources to ensure their optimum utilization. For example, a coastal State's rights for the purpose of exploring and exploiting the natural resources of an "exclusive economic zone" are recognized, but only in conjunction with rights for the purpose of conserving and managing those resources.16 A coastal State's rights are further balanced with countervailing duties,17 to an extent that its role may be interpreted as being, in some respects, that of a trustee in relation to those resources. In its provisions on the living resources of the high seas, including "straddling stocks," highly migratory species, marine mammals, and anadromous and catadromous species, in which conservation is the dominant theme,18 the Convention clearly anticipates the concept of sustainable development. As to part XII of the Convention, its express objective is the protection and preservation of the marine environment and restates, for the first time in what is intended to become a binding legal instrument, general and specific obligations of States directed to that end.19 Provisions on navigational safety20 have, in part, the same objective, in addition to those of protecting life and property at sea. Through providing, in part XI and annexes III and IV, for implementation of the concept "common heritage of mankind," based on universal participation, regulated non-exclusive access to resources, and equitable sharing of benefits, the Convention foreshadows to a remarkable degree principles associated with sustainable development.
As to institutional support for implementing these provisions, the Convention adopts two basic approaches: in regard to more traditional marine activities - for example, fishing and the conservation of the living resources of the seas, navigation and communication, protection and preservation of the marine environment, and marine scientific research - the Convention assigns important roles to organizations within the UN family already active in these fields (FAO, IMO, UNEP, IOC/UNESCO); in regard to the non-traditional activity of deep seabed mining, the Convention establishes new institutions the International Seabed Authority, and its affiliate, the Enterprise.
Institutional support for traditional marine activities
Thus, IMO is given regulatory responsibilities with respect to the safety of navigation including designation of sea-lanes,21 establishment of traffic separation schemes,22 the construction, operation, and removal of artificial islands, installations and structures,23 vessel source pollution24 and dumping,25 and maritime transport of noxious substances.26 FAO is assigned a wide range of consultative functions in connection with the conservation and management of fish stocks both within national jurisdiction,27 and outside it on the high seas,28 as well as with the conservation of marine mammals.29 Several responsibilities are to be undertaken by UNEP in connection with the protection and preservation of the marine environment,30 while IOC/ UNESCO will be required to carry out a range of functions related to the promotion and regulation of marine scientific research.31 In addition to the regulatory and promotional functions allocated to these "competent international organizations," the Convention gives each of them a role with respect to the settlement of disputes arising within their respective fields.32
Organizations not referred to in the Convention either directly or by necessary implication, also have roles of importance in bringing about sustainable development of marine resources and may, in time, be recognized as "competent international organizations" under the Convention. Some, of "universal" membership, have functions with a direct bearing on the utilization of marine resources:
- the International Labour Organisation, through its contribution to maritime safety resulting from its maritime labour conventions and recommendations;
- the World Meteorological Organization, through its contribution to maritime safety in providing meteorological and related geophysical information, supervised by its Commission for Marine Meteorology;
- the International Civil Aviation Organization, through regulating aspects of air navigation and air transport, activities which, carried out to a great extent across marine areas, influence, and are influenced by, the oceans and the laws that govern them;
- the International Maritime Satellite Organization, through improving significantly the efficiency of maritime communications;
- the International Whaling Commission, through regulating catches of whales so as to protect species threatened by over-exploitation, and promoting research on whales and related activities;
- and global environmental protection institutions established pursuant to agreements concluded under the auspices of UNEP.33
Other institutions which may not be characterized as "universal," but which nevertheless contribute to the sustainable development of marine resources, include those established and supervised by the Consultative Parties to the 1959 Antarctic Treaty34 and a number of regional institutions dealing with fisheries,35 mineral exploitation,36 preservation of the marine environment37, and marine scientific research.38
III. The convention's new institutions: The international seabed authority and the enterprise
Nowhere does the Convention more clearly anticipate the concept of "sustainable development" than in the new international institutions established by it to implement the concept of the "common heritage of mankind": the International Seabed Authority, which will regulate, supervise and administer mining of the seabed beyond the limits of national jurisdiction; and its affiliate, the Enterprise, which will actually carry on mining of that area in competition with States and state-sponsored miners. Nowhere in the Convention are the Brundtland Report's prescriptions regarding "changes in access to resources and in the distribution of costs and benefits," and concern for social equity "between generations" and "within each generation" more strikingly foreshadowed than in part XI and annex III. Those provisions regulate access to the area's resources as well as all resource exploration and exploitation activities therein, promote the transfer of scientific knowledge and technology associated with seabed mining, and ensure to a feasible extent the equitable distribution of the costs and benefits of activity in the area. The Enterprise, established by article 170 and annex IV as an "organ of the Authority," and given a measure of autonomy to enable it to function on a commercial basis with a view to optimal utilization of the area's resources, is nevertheless "subject to the directives and control of the Council," so that its operations as a whole will be consistent with the common heritage concept as elaborated in the Convention.
The Convention's provisions illustrate three features of particular importance in the design of international institutions responsible for the sustainable development of a natural resource: universal participation, comprehensive powers, and legislative competence.
Universal participation
Part XI of the Convention, together with annex III are of particular importance from the institutional point of view, since they may represent the furthest attainable refinement of an inter-State management mechanism that remains faithful to the principle of the sovereign equality of States and is based firmly on the democratic ideal of one-State-one-vote, which the overwhelming majority of participants considered essential.
Thus, in the Assembly - the International Seabed Authority's "supreme organ"39 - all States' Parties are represented, and the vote of each is equal in value to the vote of any other. A simple majority of all the members constitutes a quorum, and a majority of members present and voting is needed in order to decide a question of procedure. For a decision concerning a question of substance (and the decision whether a question is one of substance or not), a qualified majority is required, that is two-thirds of the members present and voting, provided that number includes two-thirds of the members participating in the session. Minority positions are safeguarded through provisions for postponement of voting on a question, pending negotiation; and postponement of voting on a proposal pending its referral to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea for an advisory opinion on conformity of the proposal with the provisions of the Convention.40
The Council, the executive and supervisory organ of the Authority, also functions in accordance with the one-State-one-vote principle. A simple majority of its members constitutes a quorum, and a decision on a question of procedure requires a simple majority. As some of the Council's decisions on questions of substance are likely to be of economic and political significance to States' Parties, and may generate strongly held views among them, a delicate balance in decision-making power was achieved through combining:
1. Constitutional provisions which, while maintaining overall geographical distribution of seats on the Council, ensures that half its number (18) would be filled on the basis of equitable representation of States with special interests. These include the principal consumers of seabed minerals and the principal investors in seabed mining (thus guaranteeing representation of the most highly industrialized countries) as well as the principal land-based producers of the same minerals.41
2. A procedure for voting on matters of substance that safeguards the integrity of the regime by protecting strongly-held minority positions through (a) requiring, with respect to specified categories of questions of substance, that decisions be taken by qualified majorities of two-thirds, or three-fourths of the members present and voting, or by a consensus among them, reflecting, in general, the economic or political significance attaching to each category of questions, together with residual application of the consensus rule to any question or category of questions not so specified; and (b) provisions for postponement of voting on a question pending the operation of a conciliation procedure aimed at achieving consensus.42
With the emergence of this balanced system for the exercise of executive and supervisory authority out of a rigorous negotiation which took into account the concerns of States with widely different economic and political interests, the Conference avoided having to adopt devices such as guaranteeing one or more seats for States by name. This was to assure appropriate representation of States with the highest level of economic interest and contributory capacity; grant of the power of veto to any State or group of States; or, again, making a State's voting strength proportionate to its budgetary contribution (weighted voting).
Comprehensive powers
Article 137 of the convention declares that "All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act ..." laying the foundation for the Authority's comprehensive powers. Thus, article 153 empowers the Authority to organize and control seabed mining in the Area, and also to carry out seabed mining by the Enterprise, or through contracts with States, or with State enterprises or natural or juridical persons sponsored by States. Article 150 gives the Authority important roles, on the one hand, in increasing the availability of minerals from the Area, and expanding the opportunities for participation by all States in the development of the Area's mineral resources; and, on the other hand, in regulating the production of seabed minerals so as to protect land-based mineral producers from "adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected mineral, or in the volume of exports of that mineral ..." caused by seabed mining in the area. Article 140 requires the Authority to provide for the equitable sharing of financial and economic benefits derived from activities in the area on a non-discriminatory basis.
Other provisions of the Convention empower the Authority to carry out, as well as to promote and encourage the conduct of, marine scientific research concerning the Area and its resources, as well as to coordinate such research and disseminate its results;43 to regulate activities in the Area so as to prevent, reduce and control pollution and other hazards to the marine environment, and to protect and conserve the Area's mineral resources, its flora and fauna;44 to regulate activities in the Area for the protection of human life, where necessary, supplementing the existing treaty law on the subject;45 to regulate the emplacement, safe utilization, and eventual removal of installations in the Area, so as to ensure the safety of navigation;46 to take measures to acquire technology and scientific knowledge relating to seabed mining and to promote, encourage, and facilitate its transfer to the developing countries;47 and to promote, through measures including transfers of financial and other benefits from deep seabed mining, and the results of scientific research and the relevant technology, the "effective participation of developing countries in activities in the Area...."48
Legislative competence
The Council, which is required to meet at least three times a year, has policymaking power as well as legislative and supervisory competence in all questions and matters within the competence of the Authority. Although it is the Assembly that must actually adopt the rules, regulations, and procedures applicable over the range of the Authority's functions, it may do so only on the recommendation of the Council,49 and it does not appear likely that the Assembly would, as a rule, assert its "supremacy" over the Council.50 When adopted by the Council by consensus,51 and by the Assembly by a two-thirds majority,52 the provisions of the Authority's mining code will become applicable without the need for additional separate consent by States' Parties. Similarly, action taken in emergencies,53 in cases of noncompliance,54 or in the exercise of the power to disapprove areas for exploitation on environmental grounds,55 bind States' Parties and seabed miners directly, although it may be open to an aggrieved party in an appropriate case to have recourse to dispute settlement procedures.56 Amendments "relating exclusively to activities in the Area" approved by the Council (by consensus) and by the Assembly (by a two-thirds majority) would be considered adopted and submitted to all parties for ratification.57 On the other hand, article 155 of the Convention on decisions on amendments at the Review Conference provide a controversial mechanism that would permit the Review Conference to circumvent the legislative competence of the Authority's organs, with their safeguards for minority positions: if efforts at consensus were to fail, amendments would enter into force for all parties following adoption by a three-fourths majority of States' Parties, and ratification or accession by a similar majority.