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IV. Global governance and the four problem areas
1. To what extend do the selected problem areas compare?
Characterizing energy, food, atmosphere, and outer space as global problem areas yields the finding that a new orientation to international resource/environment management is necessary. The various elements of these problems lend themselves to meaningful appreciation and resolution in light of the CHM concept, highlighting the profound extent to which CHM principles can be put in the service of global governance.
Common threads run through the gamut of numerous, interwoven and complex issues in these four areas of concern. These connections would paint the backdrop for each step forward taken towards reforming or building institutions for global governance. First technology development is a crucial dimension in each of these global management fields. Creation of new technology and its application to peaceful uses are important bases for ameliorative or progressive action, whether one considers energy use and energy-use consequences, food security, or space exploration and exploitation. The result is the vision that because the misuse of technology has caused these global problems, technology must now be employed to resolve these same problems.
International management of the resources involved relies on the conviction that science and technology must be made more accessible to more and more people and must be consciously built into any process of political decision-making. This connects with a second point of convergence in the resolution of the above areas of concern: securing long-term interests of all people concerned is an inevitable parameter in policy formulation and decision-making. Choices that have to be made regarding any of the four problem areas are concerned with the issue of sustainability, and the forthright question that arises in any policy situation is whether a particular decision or action contradicts the requirements of ecological balance, or Mother Nature herself. Only sustainable development in the energy or food sectors, or in the atmosphere and outer space environment can secure long-run common interests and can in fact prove durable in a strategic sense.
A last feature that is common among the four areas of concern analysed is the inexorable movement towards new forms of cooperation. Whether this cooperation is seen in terms of inter-organizational effort, or cooperation between North and South, or cooperation among national, regional, and global agencies and institutions, or cooperation between public and private sectors, based on cooperation among all disciplines of knowledge, more cooperation is imperative. This underpins the application of the CHM principle of shared management in all the problem areas analysed.
There is much promise in the emerging international relations of cooperation, and increasingly, the old international politics of peaceful coexistence is falling apart. The recent European Energy Charter is a case in point. This is also clearly seen in the direction taken by Research and Development initiatives in all spheres and the expanding role of technology co-development schemes in the overall development process of the South. The consensus is that these activities can no longer be carried out on the assumption of competition and conflict among international actors.
A word is needed on the dynamic nature of public/private sector cooperation now needed to advance the philosophy of sustainable development. With the environmental consideration as a conceptual basis for programmatic action, the issue of "free enterprise versus command economy" has become passe. Participation by the public sector in economic activities is increasingly identified as its participation in environmental activities. The interests of the public sector can, therefore, never run into conflict with that of the private sector because there can be no conflict between "conservation" and "development." (Borgese 1991)
A pragmatic arrangement is dictated by what may be termed as "sustainable cooperation" between public and private sectors. In carefully considering the extent of public sector participation in actual resource management - whether this be in the form of operational activities, joint ventures, or simple licensing - the role of public enterprises is to promote sustainable development at the national, regional, and global levels of governance. Education campaigns on the inevitability of global governance based on sustainability, and indeed the CHM concept, is an initial task for the public sector.
Technology development, environment-based concerns and interests of mankind as a whole, and cooperation for a sustainable world: Is it desirable to join these common threads into a single structure of world governance such that energy, food, atmosphere and outer space are simultaneously addressed as a unified global problem under a new global order?
2. To what extent can the four problem areas be integrated into a single scheme of global governance?
The process of institutional joinder of concerns by international organizations, especially within the UN system, is already rapidly taking place. National, regional, and global integration of programme priorities and pursuits is also becoming evident, and the refocussing of WMO's role in regard to climate concern illustrates this trend. WMO coordinates and consults with an array of UN agencies and international institutions such as IMO, UNEP, INMARSAT, ICSU and carries out programmes at the national, regional, and global levels in cooperation with many more institutions.
In the UN itself, the emergence of more coordinating mechanisms (such as the ECOSOC's Committee on Programme Coordination, or Administrative Committee on Coordination, or the Office for Ocean Affairs and the Law of the Sea, or the Consultative Committee on Substantive Questions) underscores the importance of multi-disciplinary, inter-sectoral, and multi-organizational projects. The confusing maze of coordinating bodies in the UN, given the background of intensifying inter-disciplinary programmes of various UN Agencies and bodies, would indicate that the UN system is due for an overhaul. The symptoms for reform in the UN for a more effective global governance are beginning to show.
The inadequacies of existing global institutions to respond to global problems have warranted the regionalization of solutions for these global problems. In the field of energy for instance, the trend is towards the regionalization of energy markets. This is, of course, part of the broader process of regional economic and political integration. The institutional implications for global governance of this development are only barely understood. The regional approach to global problems surely holds bright prospects for global resource management. But one should never lose sight of the necessity for global mechanisms in the management of energy, lest regionalization becomes a formula for protectionism and parochialism defeating the very essence of cooperation in a new global order.
From a purely environmental perspective, the interrelated issues of energy, food, and the atmosphere have substantial and direct impact on the comprehensive problem of global energy management. It was seen that the food security problem figures prominently as an energy security problem and the concern for climate and climate change is, by and large, a function of energy exploitation, use, and development. Global management of the energy sector could, therefore, conceivably simultaneously comprehend governance of the food sector and the atmosphere. At the global level, any institutional response to the energy problem will of necessity impact on the food and atmosphere problems. Energy, food, and the atmosphere, as global concerns, can hence be tied together into a single scheme of global governance.
A profound institutional innovation in the energy sector could perhaps be imagined with the creation, within the UN system, of a Biosphere Security Council devoted to consideration of the problems of global environment and energy use, to include examination of the consequences of present trends and possible changes, including their impact on development of the DCs. The guiding principle of this Biosphere Security Council would enshrine a notion of "comprehensive" or "common" security essentially projecting the CHM concept, rather than military "collective security" as embodied in the present UN Charter which is vouchsafed in the Security Council.
In addition to representatives of the existing Security Council members, additional members (by rotation) should be appointed from countries in Africa, Asia, Latin America and the Middle East. The Biosphere Security Council would take its decisions on the basis of a qualified majority vote. Because of the complex technical nature of the matters to be discussed, a few eminent persons from science and economics should be present. They should be full members but without vote. This would enable their views to carry weight, without challenging the prerogatives of the governments.
The challenge posed by the problems of outer space span environmental, developmental, and disarmament issues as well. But outer space is an expansive resource which can thus be managed with relative independence from biosphere concerns such as food, energy, and atmosphere. As the 1981 Congress of the International Astronomical Federation put it, outer space is "mankind's fourth environment." The proposal to create a World Space Organization would definitely be most relevant in this regard. The environmental and developmental objectives of the WSO can be linked to the activities of, or coordinated by, the Biosphere Security Council.
Whatever the institutions to be developed which may address the four problem areas discussed here, whether jointly or separately, what cannot be doubted is the importance of the CHM concept as a guiding principle for governance. Confirmed in an ultimate sense is the fact that the planet, the entire biosphere, is the common heritage of mankind.
Is it really possible to design institutional programmes for global governance on the basis of a substantive (CHM) concept whose status remains uncertain as long as the instrument in which it is embedded has not been secured? To what extent can the inexorable process of institution building contribute to a wider appreciation of the concept and its significance for environmental/resource management? Can institutional reform in the present and next century proceed on any other normative basis? In institutional terms, can the principles of the concept be captured into the mandate of any agency which deals with resources? Does the CHM really promise the key to global governance in the coming century?
It cannot be doubted that the CHM concept, the founding concept of the 1982 Law of the Sea Convention, has a direct impact on the broad issue of global resource management. At the conceptual level, the extension of CHM principles to problem areas such a energy, food, atmosphere, and outer space is desirable and points to promising approaches in intergrating humanity's concern for disarmament, development, and the environment. The international community is definitely assured of a hitherto unrealized "comprehensive security" with the functional expansion of the CHM concept to more areas of global concern.
In this study on four selected problem areas, global governance ramifies into two interdependent schemes of resource management. On the one hand, managing energy, food, and the atmosphere supplies the overall direction in managing a unified energy environment in a multi-dimensional way. Protection or preservation of the planet's delicate biosphere is the pivotal assumption in any envolved institutional programme to address this concern. On the other hand, the objective of outer space governance is to create an effective regime so that this non-material resource can be put to the long-term service of mankind. From the viewpoint of a global governance scheme, outer space is considered to be a discrete resource distinct from energy, food, or the atmosphere.
Ocean governance provides a third identifiable dimension to planetary governance and with it an adequate or complete picture of global governance is discerned. Ocean governance becomes reality with the entry into force of the 1982 Convention on the Law of the Sea. It must be pointed out that the conceptual underpinnings of ocean management in the new Law of the Sea consist of environment, development, and disarmament pillars - a truly expansive framework for managing the ocean as an environment/resource.
Overall, global governance inspired by the CHM concept branches out into three focal areas of resource management: oceans, energy, and outer space. Applying the CHM concept to outer space significantly accelerates development and disarmament processes; applying it to the complex of energy-related concerns is the best assurance for ecological harmony and also development; and pursuing the CHM in the oceans leads to development, disarmament, and ecological security.
The institutional mechanisms to carry out the task of global governance for energy and outer space have already been pointed out. It was suggested that a UN Biosphere Security Council and the World Space Organization are appropriate and urgently needed fore for tackling the energy and outer space problems, respectively. The magnitude and scope of institutional power necessary to overcome the problems of energy or outer space governance, implied in the creation of the UN Biosphere Security Council or the WSO, would suggest the development of a corresponding institution for the ocean sphere. Herein lies the institutional significance of energy or outer space governance to ocean governance.
Although the CHM concept underpins the whole Law of the Sea, the institutional expression of the concept has been simply confined to the international seabed and its resources through the International Seabed Authority. What seems to be needed is to evolve more institutions - national, regional, and global - within the already defined substantive framework of the 1982 Law of the Sea Convention in such a manner that the CHM concept would truly pervade the totality of ocean concerns. This process of institutional creation should lead to an increasing unification of ocean management initiatives within an umbrella mechanism for ocean governance.
The development of Regional Centres is proof that the CHM concept is being expanded institutionally under the Law of the Sea. At the national level, the incorporation of integrated ocean policy into national development plans is gradually taking place, altering traditional approaches to social and economic development. At the global level, the establishment of a UN Ocean Assembly, which would bind previously sectoralized marine concerns (for instance, fisheries, shipping, ocean mining, science, and technology) would perhaps be the adequate institutional vehicle for ocean governance in the twenty-first century. This Assembly would coordinate with the WSO, both being possibly under the direct guidance of the UN Biosphere Security Council, in a project of global governance built upon the CHM concept.
The logical conclusion is that ocean governance is really part of global governance, but ocean governance provides the key concepts in appreciating the extent and nature of global governance. In turn, global governance points out the need for institutional expansion and consolidation in the marine sphere for a more meaningful ocean governance.
The conclusion that institutional innovation is more than ever imperative in the marine sphere is validated by the increasing intensity and expansion of activities in, and uses of, the oceans. The evidence that governance of ocean space increasingly intrudes into terrestrial and atmosphere concerns clear: offshore oil and gas now account for more than 20 per cent of world production; the protein requirements of more and more people are produced from ocean resources; the role of the oceans as a sink for greenhouse gases is conclusive; knowledge of the oceans derived from satellite sensing of earth phenomena and activities is crucial; and regional seas give rise to an unprecedented consciousness to cooperate.
These and other factual relationships between ocean concerns and planetary concerns point to the capital importance of assimilating ocean governance in an overall scheme of global governance. The institutional consequences are but a logical outcome of this process of building a more reassuring foundation for ocean security. Then it can be said that ocean-centred, environmentally focussed, boundary transcending security is very likely the element of ocean governance that holds the whole system of comprehensive security together and makes it globally stable. (Borgese 1991)
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A revised and expanded version of this chapter served as the Background Paper for Pacem in Maribus XX, held in Malta on 1-5 November 1992.
The competent international organizations: Internal and external changes
Thomas A. Mensah
Internal
changes
External
changes
Methods of promoting and encouraging the
needed changes: Internal and external
Note
The 1982 United Nations Convention on the Law of the Sea was conceived and elaborated as a treaty to "establish a comprehensive framework for the regulation of all ocean space."" This means that the principles of the Convention would apply throughout the entire area of the seas and oceans and cover all activities within the area, or that are likely to have impacts thereon. Nevertheless, it was also recognized that the Convention itself could not deal in detail with all the measures and arrangements which need to be taken or established to apply and implement the principles in specific areas or to particular activities and operations. For this reason, the Convention envisages, and indeed requires, States to cooperate in developing mechanisms, procedures, standards, and measures necessary for particular areas, sectors, or spheres of activity within the maritime context. This cooperation is mainly to be undertaken within or under the auspices of "competent international organizations," that is to say, intergovernmental bodies or institutions with the relevant expertise and mandate to deal with specific areas of the seas or particular maritime activities.
For the practical implementation of most of its general provisions, the Law of the Sea Convention assigns important roles to existing international organizations which are deemed competent for the relevant measures. In some cases the Convention does no more than recognize and underscore functions which are already being performed but which are considered essential for the realization of the objectives of some provisions of the Convention. But whether it assigns new functions or whether it merely recognizes existing roles of the organizations concerned, the Convention proceeds on the clear premise that the "competent international organizations" have important, and in many cases indispensable, roles to play in the effective implementation of its provisions in many crucial areas.
For reasons which are no longer important, the Conference (the Third United Nations Conference on the Law of the Sea) which adopted the Convention decided against referring to the competent international organizations by name, except in a few cases. However, the language chosen and the subject matter of the relevant provisions generally give clear indications about the identity of the organizations which are expected to discharge the responsibilities specified in the particular provisions of the Convention. The Convention also makes it clear that the competent international organizations may be subregional, regional, or global (article 61) and the organizations could be both within as well as outside of the United Nations system (as for example the International Hydrographic Organization (IHO)) to which specific reference is made in annex II, article 3(2).
The roles assigned to, or expected of, competent international organizations range from the development of international regulations and standards, the promotion of cooperation for the exchange of information, expertise and assistance to facilitate arrangements and procedures for the peaceful settlement of disputes arising in connection with maritime activities. As indicated earlier, the Convention does not, as a rule, refer to organizations by name. However, there is now a general consensus in the international community on the identity of most, if not all, of the organizations which are described as "competent" in the various articles of the Convention. For example, it is agreed that, in the area of navigation and the prevention of maritime pollution from vessels by dumping, "the competent international organization" is the International Maritime Organization (IMO), as in articles 22, 41 and 53 relating to sea lanes and traffic separation schemes, article 60 on the removal of disused artificial installations and structures, and articles 211, 217, 220, 221, etc. concerning the development and implementation of regulations and procedures for the prevention and control of marine pollution from vessels. With regard to the management and conservation of living marine resources (as in articles 61 and 119 on measures to prevent resources being endangered by overexploitation) there is little doubt that the competent organization, at the global level, is the Food and Agriculture Organization (FAO) of the United Nations. Similarly one of the major competent organizations in the field of marine scientific research is without doubt the Intergovernmental Oceanographic Commission (IOC) of UNESCO, although the International Hydrographic Organization (IHO) has important functions in this area. Also worth mentioning is the role of the United Nations Environment Programme (UNEP) in the implementation of the Convention's provisions regarding the protection and preservation of the marine environment, in particular in respect of the prevention of marine pollution from land-based resources and from the atmosphere (articles 207, 208, 212, 213, and articles 194 and 196 on general measures).
In the very important field of dispute settlement, the Law of the Sea Convention once again recognized the role of competent international organizations, and it provides for their involvement in the innovative arrangements and procedures which it has elaborated to promote and encourage greater acceptance and resort to peaceful means of dispute settlement. In particular the Convention assigns significant roles for a number of organizations in the operation of the Special Arbitral Procedure provided for in annex VIII. The establishment and maintenance of the lists of experts for the special arbitral tribunals is assigned in various areas to the FAO (fisheries), UNEP (the protection and preservation of the marine environment), IOC (marine scientific research), and IMO (navigation and prevention of pollution from vessels and by dumping).
The Law of the Sea Convention assigns such important roles to existing organizations because the governments which negotiated and adopted the Convention recognized three major conditions which are crucial for the effective implementation of the Convention's provision and the achievement of the goals and objectives of the Convention in all its various aspects. The conditions are:
1. The greatest possible emphasis on an international perspective in dealing with ocean affairs and, in particular, the need to discourage unilateral State action based on narrow national or regional interests.
2. The advisability of utilizing existing machineries which had developed special mechanisms and expertise in specific fields. Apart from the wisdom of making use of experience already acquired, reliance on existing bodies would avoid the establishment of new and expensive mechanisms.
3. The imperative necessity to avoid duplication and overlaps, at the national and international levels, in an area of increasing relevance to the development needs of all States, but with particular significance to the developing countries. In view of the scarce resources (human and financial) available, duplication of efforts or institutional structures would result in unnecessary waste and also reduce the benefits which the Convention was intended to bring to all States and their peoples.
But the governments would not have been willing to leave so many vital issues for action in these organizations unless they were satisfied that certain assumptions and understandings were equally accepted by the organizations and their memberships. These assumptions were:
a. That the organizations were indeed willing and able to accept the roles assigned to them, and that they had the means to discharge the responsibilities entrusted to them within the framework of the Convention on the Law of the Sea and pursuant to the principles of the relevant provisions.
b. That the international community (i.e., governments, intergovernmental bodies as well as non-governmental organizations and, as appropriate, individuals) will take all the measures needed to enable the organizations to accept and discharge the functions and obligations entrusted to them. In particular, States Members of the respective organizations will provide the resources and facilities needed by the organizations in taking the measures required; and also that all States and persons concerned will not only recognize the roles and competence of the organizations but will also extend to them appropriate support, cooperation and assistance, when and as necessary.
In other words, the effective discharge of the roles assigned to, or expected of, the organizations entail changes both within and without the organizations.
The changes that need to be made within the competent international organizations relate mainly to their institutional machineries, their procedures, and the procurement, allocation, and rational utilization of resources.
Institutional changes
Where the Convention on the Law of the Sea assigns new functions to an organization - or where an existing function has been given recognition in the Convention and has thus acquired legal significance for States Parties - the organization concerned may find it useful, and indeed necessary, to examine its current institutional machinery in order to determine whether the existing arrangements are suitable and adequate for the discharge of the new functions, or for the performance of the old responsibilities in the new circumstances created by the Convention's provisions. Thus, for example, where the Convention assigns functions involving the development and adoption of international regulations or standards, it may be necessary for the organization concerned to decide whether those functions can be exercised by its existing bodies and organs, or whether new specialized subsidiary bodies may be needed. This may be the case particularly where development or adoption of the regulation or standard in question involves cooperation with other organizations or governments which would normally not be participating in the routine work of the organization in question. In any case the organization will need to take decisions on the appropriate body or organ to deal with the assigned functions. For example, article 2 of annex VIII, when it assigns responsibility for the drawing up of lists of experts to serve on the special arbitral tribunals, states that the lists shall be drawn up and maintained by the organizations named "or in each case by the appropriate subsidiary body concerned to which such organization, programme or commission has delegated this function."
Thus, an essential step in the effective discharge of any new assignments under the Convention appears to be the taking of the necessary decisions concerning the establishment of new institutional bodies, or the adjustments in existing mechanisms, in order to permit or facilitate the performance of the new functions or the discharge of existing responsibilities in the ways made necessary by the new dispensations under the Convention.
Procedural changes
In addition to the institutional changes, organizations may (and in most cases will) need to make changes in their procedures to enable them to discharge functions and undertake measures assigned by or expected under the Law of the Sea Convention. This will be so whether the functions concerned are newly assigned or whether they are existing functions which have been given increased importance by the Convention. For, even in the case of existing functions it is unlikely that procedures and arrangements which were suitable and adequate when the results of action were mainly addressed to the members of the particular organizations will be equally appropriate when the outcomes are intended to be relevant (and applicable) to States, organizations, and individuals who would normally not be involved in the work of the organization in question. For example, the procedures of IMO with regard to traffic separation schemes were largely "internal" to the Member States of that Agency and to those non-Member States which accepted the international treaties which were adopted under the auspices of IMO. However, under the Law of the Sea Convention IMO's competence in this sphere has been significantly enlarged to include the function of considering and approving (or at least endorsing) proposals by States in respect of schemes for implementation in exclusive economic zones, in straits used for international navigation, and in archipelagic waters. Even in the territorial seas, coastal States have to take IMO's recommendations into account. In view of these new dimensions, IMO cannot expect to perform its functions adequately without changes to its existing procedures. For example, new procedures are needed to enable States which wish to establish traffic separation schemes to put their proposals to IMO. This is particularly the case where the State concerned is not a member of IMO. In addition IMO will need to develop new procedures both to receive inputs from States and bodies which need to be aware of such results. For example, the recommendations of IMO should be publicized appropriately to all States (including non-Member States) which are required by the Convention on the Law of the Sea to take these recommendations into account when adopting their domestic measures.
Similar considerations apply to FAO in connection with its functions concerning the management and conservation of marine-living resources, especially where it is required to establish standards and procedures, taking into account "the best scientific evidence available" or where it has to cooperate with States and other organizations "whether subregional, regional, or global." In undertaking measures pursuant to these provisions, FAO may find it necessary to make adjustments to its normal procedures, for example, in order to permit or facilitate liaison with, and acceptance of inputs from bodies, institutions, and persons who might not otherwise be involved in the work of the organization.
In addition to procedures relating to participation, competent international organizations may find it advisable (and indeed necessary) to make changes or adjustments in their work plans in order to assign higher priorities to items of work which would otherwise rank lower in their work schedules. Thus, for example, IMO felt obliged to upgrade work on the regulations for the removal of disused artificial installations and structures at sea in response to the provisions of article 60 of the Convention on the Law of the Sea. And it is possible that the provisions of the Convention on the prevention and control of marine pollution from land-based sources have, at least in part, contributed to the intensification of the work on this subject within UNEP and its Regional Seas Programme.
Resource allocation
Even where organizations and their Member States are ready and willing to effect the institutional performance of their functions under the Law of the Sea Convention, they will still not be able to meet the challenges in full unless they are able to make available (or otherwise procure) the resources required to take the measures and to make the necessary changes. Where the new functions require the creation of new institutions and new mechanisms, the need for additional resources may be obvious. But even where what is involved is a change or modification in existing arrangements and procedures, the need for additional resources may be no less real, for instance, where an organization has to open its processes to more participants (States and/or organizations) it will need more resources in order to provide the extra facilities required. Where the results of work have to be brought to the attention of a larger audience, the costs in production and distribution will increase and in many cases the personnel requirements will also escalate.
Cooperation with other organizations
Finally the competent international organizations will need to adopt significant changes which will enable them to forge effective cooperative relationships with States and other organizations which have responsibilities in respect of the related aspects of the Convention. For, as the Secretary-General of the United Nations said in his statement to the final session of the Third United Nations Conference on the Law of the Sea in December 1982, "the effectiveness of the Convention's principles, which constitute a balanced and harmonious whole, will be enhanced if States can coordinate their action, compare their experience and make the new legal regime an incentive for new forms of international cooperation. This requires equally coordinated action by the United Nations and the specialized agencies ...." The Secretary-General might have added that this cooperation also requires coordination of action with many organizations and bodies outside the United Nations system.
The need for cooperation among States and with international organizations, is recognized throughout the Convention but particular emphasis is given to cooperation in the crucial provisions of the Convention concerning the development and transfer of marine technology (part XIV). Under this part, and especially in article 266, States and competent international organizations are required to cooperate in promoting the development of marine scientific and technological capabilities of all States; this is to ensure that they are able to participate in the global efforts envisaged in the Convention for the equitable exploitation of marine resources, the protection and preservation of the marine environment, and other activities, "with a view to accelerating the social and economic development" of States. But the Convention recognizes that the basic objectives it proclaims (article 268) and the measures for achieving these goals (as specified in article 269) can only be achieved with maximum degree of cooperation between States and the international organizations, sharing and exchanging their individual and collective information, experience, and expertise. For this reason, the Convention imposes clear and specific responsibilities on States and also on the competent international organizations. In article 272, the Convention requires States to endeavour "to ensure that competent international organizations coordinate their activities, including any regional or global programmes." Article 278 of the Convention requires the competent international organizations "to ensure, either directly or in close cooperation among themselves, the effective discharge of their responsibilities ...."
These provisions of the Convention make it abundantly clear that competent international organizations cannot hope to perform their functions under the Convention or discharge the trust imposed in them by the international community until and unless they are ready, able and willing to organize themselves and make such changes as may be necessary, not only to pool their ideas and experiences together and thus rationalize the use of the diminishing resources available to all of them, but also to maximize the impact of their activities and programmes on States, corporate bodies, and individuals who engage in separate but interrelated operations in various sectors of ocean space.