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III. The common heritage of mankind and four other problem areas

As a result of the greatly increased public and governmental awareness of environmental dangers, the spotlight is now on the need for sustainable development. The major challenge posed for today's planners is unambiguous. New modes of thinking are demanded and new approaches to the management and use of world resources of all kinds must be made. Furthermore, people especially in the industrialized countries will have to reassess, with generational consequences, their life styles and to appreciate the need to change the* aspirations from quantity towards quality. This suggests that a thorough examination is required as to how and to what extent the CHM concept with its operational principles and its institutional implications should be extended to the efficient, equitable and sustainable management of other areas of global concern which span not only the oceans but also the terrestrial environment and even the atmosphere.

Extension of the CHM principles to some terrestrial areas such as Antarctica seems obvious and its flavour is already noticeable in the Antarctica negotiations. The purpose of this chapter is, however, to present a preliminary exploration of the possibility of extending the CHM concept and its institutional implications to areas where the problems are distributed in a geographically or functionally more expansive manner. We have selected four examples, namely energy, food, the atmosphere, and outer space. These particular problem areas are chosen for their respective characteristic importance to the survival and progress of mankind as a whole.

By energy is meant the product and processes, natural and human, associated with the generation, maintenance, and development of mankind's capabilities. Food is understood as the system of provisions for human nutriment. The planetary atmosphere consists of those layers of gaseous mass or air surrounding the earth. Outer space covers the environment beyond the earth's atmosphere including the moon and other celestial bodies. Energy and food are sectoral concerns which predominantly belong the terrestrial sphere of activity and where the concept of basic human needs raises questions of human equity. These are heterogeneous problem areas in contrast to the atmosphere and outer space which are interlinked and more homogeneous in a spatial sense.

In the Law of the Sea, "environment" and "resource" are identical and there can be no conflict between "conservation" and "development." (Borgese 1991) But the distinction between "resource" and "environment" is now progressively obliterated in all other fields by the sustainability thesis, making the CHM concept amenable to more and more potential applications or extensions. Energy, food, atmosphere and outer spaces are problem areas representative of the merging of the environment and resources and are sufficiently varied to test the value of the CHM concept as an overall proposition for the global governance of the world's resources and/or the environment.

1. Energy and the CHM

Energy is the basic ingredient in the evolution of the planetary system and the laws of thermodynamics provide the fundamental constraints to its use and development. Until the onset of the Industrial Revolution, societies operated exclusively on renewable energy from the sun, mainly through photosynthesis in the green leaf. Heat was obtained from the burning of wood, and indeed this is still the main energy source today for multitudes of people in the developing world. Energy to till the fields, to grind grains, and to do physical work was provided by the feeble muscular work of men and animals and, at times, by the use of simple waterwheels and windmills - secondary forms of solar energy.

With the development of the steam engine and the exploitation of coal, this equilibrium situation came rapidly to an end. Using the fossil fuels coal, oil, and natural gas, often converted to electricity for convenience, the present industrialized societies arose, generating great wealth, stimulating international trade on a scale previously unheard of, and creating transportation and communications networks which are painfully consolidating life and activity on our planet into a single, extremely complex system. Even within the present century human activity has multiplied some fortyfold, demanding vastly increased quantities of energy and materials and with population growth and industrialization, these increases continue.

Given this backdrop of a growing need for energy, there is a strong case for creating a mechanism to oversee the planetary energy situation. The balance of supply, conservation, and improved efficiency in energy use constitute an important element of overall global energy management. But it is insufficient to consider world energy policy solely in terms of assuring adequate supplies to meet growing needs. Recently recognized environmental constraints indicate that increased consumption of fossil fuels, or even consumption at present levels, could lead to environmental disaster. In the past, it has been assumed that the waste products of human and industrial activity would be absorbed and transformed by a benevolent Nature. Today we can no longer rely on this; for the first time human activity is having a substantial and possibly an irreversible impact on the biosphere.

The energy question has indeed reached a stage where it must inevitably be dealt with as a global problem requiring global solutions. Dispersed, self-aggrandizing and uncoordinated, and "unsustainable" decision-making by independent actors on energy matters has brought about a dismal world situation wherein remedy can only be found through cooperation and solidarity. Recent tendencies in international law and organization, briefly described below already point to the direction of global management of the energy problem.

Certain closely interwoven themes of the total energy issue clarify the nature of the management tasks involved, thereby suggesting the corresponding institutional underpinnings for a meaningful response to the energy challenge. These may be listed as follows:

i. energy security,

ii. environmental impact,

iii. energy technology, and

iv. development.

Energy security

The issue of energy security, which directly impinges on the energy "mix" debate, has become a major issue of environmental security. Energy security is not so much a question of continued adequacy of limited energy supplies. In fact, proven reserves of oil have been increasing in the past 20 years. (Odell 1991) Energy security means using those types and amounts of energy which the environment can sustain. Three main measures identified to implement this notion of energy security through the next century are proposed to be adopted: sustained efforts at increasing energy saving and efficiency; switch to natural gas as a bridge between the fossil and non-fossil era; and accelerated development of alternative, non-fossil energy sources. (van Ettinger 1991)

Environmental impact

Environmental impact of energy generation and use is a focal consideration in any policy initiative on energy. Whether the concern be for the destruction of forests and natural ecosystems - due to agricultural expansion and the depletion of wood for fuel and building purposes - or for the large emissions into the atmosphere from the burning of fossil fuels - resulting in smog on a local scale, acid rain on a regional scale, and in an enhanced greenhouse effect on a global scale - energy production and utilization impart the need for environmental assessment. Clearly, the principles of shared management of energy for the common benefit of mankind as a whole offer a promising approach in addressing the environmental consequences of global energy disposition.

Energy technology

The sustainability of energy use, in terms of resource depletion as well as environment pollution, is constantly linked to the dynamic of advanced technology in the energy sector. Energy technology impacts on issues such as conservation, pollution control, clean fuels, and greenhouse gas stabilization. The emerging view on energy technology introduces the ingredient of universal access to beneficial technology so that sustainability is assured. This means that applying the principle of non-appropriation to technology which enhances a sound biosphere would be of vital importance. This non-property attribute of energy technology is, in fact, already evident in technology co-development - a creative form of North-South cooperation based on the CHM concept. Development of alternative energy sources for future generations is also significant.

Development

The development dimension focuses on the equitable consumption of energy in the pursuit of progress by all nations in general, and in the South, in particular. But the environmental consideration in development gives rise to a dilemma: from an environmental point of view the early cooperation of the South in reducing global greenhouse gas or CO₂ emissions is essential; from a development point of view, however, the South will have to continue to increase its per capita energy use. (van Ettinger 1991) Assistance to the Developing Countries (DCs) in harnessing and developing their energy resources and capabilities in a sustainable manner is in effect an indirect strategy for stabilizing the atmospheric concentration of greenhouse gases. Co-development with or within the South of Renewable Energy Technologies (RETs) and Energy Efficient Technologies (EETs) are effective means to pursue global energy security. This is realized at the regional level, for example, through the Latin American Energy Cooperation Programme. (UNCTAD 1990)

Energy as a global issue

International organizations are now progressively approaching energy as a global issue. Thus, the IEA promotes the diversification of energy sources and the dissemination of proper energy technologies to achieve energy security and promote environmental objectives. (OECD 1989a) The International Atomic Energy Agency (IAEA) is doing important global regulatory and management work in the limited field of nuclear energy. The World Bank acknowledges through ESMAP that aid to the developing countries is integral to the response to the energy challenge. Congruent and increasingly coordinated initiatives in the direction of sustainable energy development are also undertaken by international organizations involved in energy questions: EEC, UNCTAD, UNDP, UNIDO.

International organizations Involved with energy questions

Main organizations

Some other organizations

Two evolving initiatives may be cited which potentially embody a CHM-oriented response to the energy problem: UNIDO's Centres of Excellence, and the European Energy Charter. The UNIDO concept of a Centre of Excellence adopts the model of the Regional Marine Scientific and Technological Research Centre envisioned in the Law of the Sea Convention, the model of which has especially been advocated by Professor Elisabeth Mann Borgese. These centres are concerned, among others, with the important process of co-development of marine energy technology. Cooperative endeavours in this direction for marine industrial technology are being carried out in the Mediterranean and Carribean. (UNIDO 1991)

The draft European Energy Charter provides a regional approach by creating an energy market which also responds to environmental concerns. When implemented, the Charter will impinge on fields such as access to, and exploitation of resources, trade and investment, security, and research technological development, and innovation. This regional model reiterates the notion that energy can be subject to shared management for the common benefit of nations, can be conserved for future generations, and can be exclusively used for peaceful purposes. Opening up the possibilities of the Charter to the South - for example, through a "Window to the South," as is advocated by van Ettinger - would add to the promise of this approach to confront the energy problem in a comprehensive manner.

The world economy is increasingly dominated by the forces of the market, a system which has proved more efficient than any alternative. However, these forces which may contribute to the generation of environmentally friendly technologies by themselves will not be able to ensure the right conditions for the world as a whole. The market responds to essentially short-term signals and ignores long-term problems. Hence, if necessary trade-offs are to be made within the energy, environment, development nexus to ensure the sustainability of energy, complementary mechanisms such as the above regional arrangements have to be created.

The institutional implications are apparent. An institutional framework, transcending "horizontal" boundaries as well as "vertical" levels of governance appears to be required for the governance of energy no less than for ocean governance, and at least some of the building blocks can already be discerned. But given the present profile of the private sector in the energy field, (i.e., the role of the Seven Sisters) the nature of public/private cooperation allows for limited operational capability of the public sector in the management of energy.

2. Food and the CHM

The food system is essentially a subsystem of energy, in that it is the intermediate for the conversion of solar radiation into the muscular energy of men and animals. The expansion of world agriculture since the end of World War II has been phenomenal and has enabled the food supply, more or less, to increase as rapidly as the world population in the period. However, this expansion has been made possible less by the opening up of new lands than by the intensive use of chemical fertilizers. During the period 1950-1986 the average annual consumption of fertilizer per inhabitant of the earth rose from 5 kg to 26 kg. To produce a ton of nitrogenous fertilizer takes about one ton of oil. Oil is also necessary for the manufacture of weed-killers and pesticides which are used intensively in modern agriculture as well as for tillage and the operation of irrigation pumps. All this means that the increase in the world's food production represents the conversion of oil into edible cereals via the photosynthetic process.

The problem of food security, therefore, necessarily links to the problem of sustainability in the energy field. At the basic level, food must be considered a modality of energy (or the agricultural aspect of energy) and its management as a world concern depends on the resolution of the energy problem, specifically with reference to the developmental theme mentioned above. Food security is a sustainable development issue whose resolution hinges on the abolition of world poverty. The fundamental issue of global redistribution is overriding and emphasizes the global character of the food problem. (King 1989) But a comprehensive food security policy would include, in addition to global wealth redistribution, a strategy to equitably distribute agricultural inputs (e.g., fertilizer, insecticides, seeds) and provision for adequate food reserves to take care of lean years and emergencies.

A scrutiny of the issues involved will confirm the necessity of a global regime for food entailing immediate international target setting, joint action, and cooperation to avert a chronic world food crisis, the characteristic feature of which is the tragic coexistence of food overproduction with widespread persistence of hunger. Statistics corroborate the conclusion that the problem of world food security is not solved by the production of sufficient food, or the physical transfer of food to countries with food scarcity problems, but by a conscious international political programme to redistribute income or wealth of which food policy is but an element. The total amount of food produced in most years is sufficient for planetary needs, and the accumulated reserves allow for lean years. Indeed, it was estimated that in 1987, world food production was sufficient to provide some 19 per cent more calories than was necessary to provide a reasonable diet for every inhabitant of the earth. It is clear that the existence of plenty of food in the world has little relevance to the persistence of hunger.

The geographical distribution of food adequacy capabilities varies significantly. The United States and Canada account for some 70 per cent of exported grain, which gives the region a strong strategic role in the world food economy, and the European Community is emerging as a major and rapidly increasing exporter of cereals. The majority of developing countries (DCs) depend on imports for their food requirements, but the regional picture is changing. It is estimated that, at the beginning of the next century, Asia will have an annual grain surplus of about 50 million tons, while Latin America will have a small deficit of about 10 million tons. The main deficit areas will be Africa and the Middle East where a shortfall of 60 million tons and 50 million tons, respectively, is expected. The* food problem is exacerbated by rapid population growth, agricultural land degradation, a high proportion of arid lands, local wars, indebtedness, and wrong priorities by politicians. (King 1989)

The internationally destabilizing imbalances do not enter a process of meaningful resolution simply because existing political and market systems, responding to short-term gains discourage a global approach to the food problem. Access to food, and therefore the basic individual right to food adequacy, has often been denied to importing countries, through food trade restrictions, for political motives. One has only to cite the embargo of exports of American grain to the Soviet Union at one time and of the denying of food aid to DCs whose actions were deemed incompatible with the interest of the United States.

Technological breakthrough in food production, for instance through genetic engineering and biotechnology, have addressed the question of food quantity produced but have not led to food adequacy. The structures which would assist this type of technologies to be disseminated are dismally inadequate. However, it is obvious that the concentration of these technologies in a few nations would lead to an intensified dependence on food imports on the part of many countries. The result would in fact be a veritable food-based colonialism. (King 1989) A case for universal access to food technology, supportive of general food self-sufficiency at all levels on the basis of the non-appropriation principle, does exist.

Treating food as CHM is not a novel idea. Fish, the utilization of which is, by and large, subject to national sovereignty, has been proposed to be declared as CHM by, among others, the Vatican. Support for this advocacy is also found under the EEZ Regime of the New Law of the Sea. Even though fisheries are under the sovereignty of a coastal State, it has already many features of the CHM: it must be used sustainably in accordance with the best scientific information and if there is a surplus, it must be shared. It could then be asked: if such conditions could be attached to the "ownership" of fish, why not to that of food in general?

Equally the environmental dimensions of the food problem press for its international management. Long-term uncertainty in food security throughout the world lies in the impact of the food problem on the biosphere. As has already been mentioned, the development of new sustainable energy sources is crucial for long-run food security. In the industrialized countries (ICs) as well as in some DCs, where agriculture is highly energy intensive, one must question whether they may be able to maintain their production levels as energy demands and costs rise together with environmental protection levies. Food adequacy in the long-run will, therefore, have to reckon with alternative systems for food-energy production. Application of the common benefit and conservation for future generations principles in the area of food security, grounded on energy security, shows new ways in tackling the food problem.

A second environmental dimension of the food problem relates to the destruction of forests, to open up land for agriculture or urban development, through the use of wood for fuel or construction purposes, and due to acid rain. Widespread degradation and erosion of good soil is presently estimated to take place in some 35 per cent of the world's croplands. Intensive agricultural practices such as those of the Green Revolution demand much more water than do traditional methods; as a result, water levels are falling in many areas, causing concern as to sustainability.

As regards the demographic parameter of a food security policy, there is still much to be desired in the formulation of development plans, nationally and internationally, which take into account the relationship between population and resource potential, including food, and the environment. Population stabilization programmes have to be linked more firmly with a food security regime at the national, regional, and global levels.

A last environmental aspect of the food problem pertains to the greenhouse gas emissions contribution of the agricultural sector. This concerns ties up with the development of energy technologies in agricultural production which are environmentally sound. It may be added that agricultural processes, such as wet-rice farming and cow flatulence, also contribute to the emission of greenhouse gases, in particular of methane. First and foremost is the promising possibility of shifting food production intensity from agriculture to fisheries, mariculture or aquaculture and, in the future, even space culture. Setting up the social, economic, and technological infrastructure for this shift should be an internationally managed effort to achieve best results. This process complements all other initiatives which implement the principles of common benefit and shared management in regard to food.

International involved with the food question

Main organizations

Some other organizations

What institutional vehicles may be exploited to create a CHM regime for food? The FAO, UNDP, WFP, IFAD, UNCTAD, and CGIAR are some international institutions involved in addressing world production of or trade in food. UNIDO has a programme on freshwater development and biotechnology. FAO is, however, the main institution mandated to coordinate a world programme on food security. This role would be very much enhanced by incorporating in its present programmes CHM-inspired strategies.

The private sector's role in the food sector, unlike in the energy sector, is more varied. Government can undertake operational, joint venture, or simply licensing roles. There is wide flexibility in public/ private cooperation in order to achieve food security. Thus, the production and distribution of agricultural inputs (fertilizers, insecticides, seeds) may be subjected to a global programme while the management of foodstuffs may be more decentralized.

Thus it would appear that no new international institutions need to be created for the management of food as a CHM. In fact, since all food institutions deal with fish, which has the characteristic attributes of CHM, all other food resources can potentially be CHM! Existing international institutions, by reformulating programmes, to fit into a CHM framework of global governance in the food sector, are sufficiently capable to carry out the needed reform. Yet still, the FAO's undertaking should always form part of the overall scheme of cooperation to redistribute the planet's wealth in favour of the DCs.

3. Atmosphere and the CHM

The atmosphere, the oceans, and the land surface constitute the biosphere through complex interactions that are as yet poorly understood by scientists. These physical interactions have just recently been given political attention at the international level because of a phenomenon called "global warming." In the past, the atmosphere has simply been regarded, comparable to the oceans, as a changeless feature of the biosphere, and accessible to all subject only to the restrictions imposed by national sovereignty. The problems of air pollution compel a recognition of the atmosphere as an object of global management.

The need for an atmosphere regime goes beyond the search for a more precise definition of sovereignty over airspace. Like the law of the sea, a Law of Atmosphere is more than an affair of delimitations. But akin to the "internal waters, territorial sea, exclusive economic zone, high seas" delimitation in the law of the sea, defining the upward reach of national competence is indispensable for governance of the atmosphere based on allocation of national/international competencies. That the atmosphere is a resource to be managed at the global level is a realization which is becoming increasingly pervasive. This is due to the pivotal importance of the atmosphere in three areas of growing concern: ozone depletion, transboundary air pollution, and climate and climate change.

Ozone depletion is a problem that has been progressively addressed since the adoption of the 1985 Vienna Convention on the Protection of the Ozone Layer. The framework for dealing with atmosphere-conveyed pollution is laid down in the 1982 Law of the Sea Convention. This framework is applied and developed in international agreements such as the 1979 Convention of Long-range Transboundary Air Pollution and its Protocols. Considering the emergent legal regime as regards atmosphere and climate, there will likely be increased attention in this new field. (The Framework Convention on Climate Change adopted by the UNCED entered into force in 1994). The rest of this section will explore the basis of and institutional developments related to atmosphere and climate.

Notwithstanding prevailing limitations and uncertainties on the scientific understanding of climate and climate change, there is consensus that the accumulation of "greenhouse gases" in the atmosphere, which accelerates global warming, will most probably lead to global climate change. (IPCC 1990) Its predicted environmental consequences, like sealevel rise or modification of terrestrial and marine ecosystems, have caused alarm and provoked a spate of initiatives by the international community. These initiatives converge in their policy conclusions: the atmosphere must be subjected to a comprehensive management regime as soon as possible.

An important ingredient of the emergent global programme on climate change is the stabilization of greenhouse gas concentrations, particularly CO₂, in the atmosphere. Inescapably, the objective can only be achieved by direct intervention in the energy sector, energy use being the predominant man-made cause, accounting for as much as one-half (IPCC 1990), of the greenhouse gas emissions. Specific measures toward stabilizing the build-up of greenhouse gases in the atmosphere assume either a scenario to reduce the greenhouse gas emissions via "source oriented" measures or a scenario to mitigate impacts of future climate change via "effect-oriented measures." Reduction strategies include familiar paths like development of energy conserving technologies, switch to natural gas, and use of alternative energy sources. (Van Ettinger et al. 1989)

Climate change related R&D is providing a strong impetus for international, inter-organizational and inter-disciplinary cooperation to consolidate the scientific base for a meaningful global, regional, and national response to global warming. It is essential to build national capacities, especially in the DCs, to monitor the effects of climate change.

Substantial participation of the DCs, which are most vulnerable to climate change, in an evolving global programme on climate change is absolutely necessary given the global character of the climate problem. Two notions on the nature of this participation have surfaced: first, that global climate-change ameliorative or anticipatory initiatives should not prejudice the economic development of the South; and second, the principle of common but differentiated responsibilites of all nations in addressing climate change. (see 2nd World Climate Conference, 1990) The advocacy for assistance to the DCs, in the technology field, or the proposal to create a Climate Fund, is an offshoot of these new notions on development. (Van Ettinger et al. 1989)

The problem of climate change fully demonstrates the desirability of applying the CHM principle of shared management of the earth's atmosphere for the benefit of mankind. From the present understanding of man-induced climate change, it is really unavoidable to resort to a global management of the atmosphere based on cooperation from all sides.

UNGA Resolution 43/53 proclaims that climate change is a "Common Concern of Mankind." This logically supports the need to promote a systematic international effort in overcoming global warming. A prolific number of vehicles, at the organizational and programme levels, already exists to tackle the climate problem. Furthermore, a global network of coordinated undertakings, such as the global climate observing system of the WMO, IOC, and other international agencies, is in the process of consolidation.

Atmosphere governance is integral to ocean governance simply because their implications for sustaining the entire biosphere are identical. A framework treaty on climate, as a consequence, must be related both substantively and institutionally to the 1982 Convention on the Law of the Sea. The entry into force of the 1982 Convention is, therefore, a necessary element in any strategy to tackle the climate problem.

Organizations involved with the climate and climate change question

Outer space and the CHM

Outer space has been described as a "resource" the management of which depends on the creation of a hitherto non-existent international institution. (WCED 1987) Outer space, to the extent that it can be subject to governance, does present a challenge of establishing a management regime which puts this space in the long-term service of mankind. Sustainable development in outer space can only proceed along this route.

At the UN, the initial inspiration behind the proposal to create a World Space Organization in 1985 was a campaign against the militarization of outer space. This inspiration remains valid today and forms the basis of any concept of international cooperation in managing outer space as a global resource. It also provides, so to speak, the favourable soil in which the seed of the CHM concept can be nurtured and further developed. In fact the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space already foreshadowed a CHM regime for outer space. It defines outer space as "Common Province of Mankind" and astronauts as "the envoys of mankind" to outer space. The essential concepts for a meaningful management regime for outer space - namely, disarmament and development overlaid by the CHM philosophy and the concept of "comprehensive security" - are already in place and the concrete proposal for the creation of a World Space Organization (WSO) has already been tabled at the UN General Assembly. The remaining concern involves the political will, together with the conditions for its galvanization, to push for the realization of the WSO.

Professor Elisabeth Mann Borgese has explored in detail the significance of the Law of the Sea Convention to the creation of a WSO. The most viable scenario for this process of institutional creation and development follows the procedure or negotiation path travelled by the Convention. But the credibility of establishing and operating a WSO effectively is, of course, very much a function of the entry into force of the 1982 Convention on the Law of the Sea. (See table on page 267.)

In addition to the adoption, with appropriate modifications, of the UNCLOS III agenda and plan of action, Professor Mann Borgese also considered how the experience and success of institutions like INMARSAT or EUREKA can be assimilated in the structure, programmes, and operations of the proposed WSO. The WSO will thus be an opportunity to break new ground and apply the most advanced concepts of international cooperation and global resource management. For instance, initial acceptance of the CHM principles of non-appropriation, common benefit, and peaceful purposes with respect to outer space can justify the sole use of space technology and its products (e.g., information from remote sensing) to achieve developmental and environmental objectives. The WSO will truly be a most meaningful enterprise to consolidate and carry forward the gains of and values under the CHM concept, bringing out its universal significance in planetary governance.

Table 1 Comparison of action required for the management of oceans and space

The European Space Agency, which recently launched a satellite to engage in sensing for an array of environmental objectives proves that a regional effort for sustainable development in outer space can be consolidated. The ESA's activities in outer space are mandated to be exclusively for peaceful purposes. A global effort in this direction is not far off with the creation of a WSO.

Organizations involved with outer space questions

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