I. The Legal Framework
The basis of the legal framework of ocean governance is the United Nations Convention on the Law of the Sea, a document without precedence in history. Born of a marriage, or compromise, between prophecy and retrospection, generosity and greed, this Convention rightly has been called a “Constitution for the Ocean.”2 Looking at it as a “compromise” will reveal the weaknesses of the document. Nothing contrived by the human mind is perfect, and if a document has to be negotiated in a global political arena, it is inevitable that compromise will weaken even the best design. Looking at it instead as “marriage,” in the sense of a real “synthesis” of idealism and realism, will give rise to encouragement and hope for the future. History indeed teaches, if it can teach anything, that system breaks take place, and progress is achieved only when these two, idealism and realism, especially in the form of economic interests, coincide. Then even institutions thought to be embodiments of human nature itself, will collapse. Two examples are the abolition of slavery and the abolition of colonialism. In both cases, idealism: sacrificial devotion to an ideal, played a major role. Without it, the goal could not have been achieved. But it also so happened, in both cases, that the time-hallowed institution was no longer economically sustainable. Slavery had been overtaken by the obsolescence of the plantation system and the onset of industrialization, which made slavery uneconomical. Colonialism, which had created unprecedented wealth for the imperial powers, instead had become an economic drain on them after the two world wars. It was economic realism to get rid of the colonies. The next time-hallowed institution that will go is international warfare. No more intrinsic to human nature than slavery or colonialism, it will be left behind by a coincidence of humanitarian and economic, idealist and realist, prophetic and retrophetic interests.
The Law of the Sea Convention, in fact, provides a legal framework for the enhancement of peace.
In his “remarks,” on the occasion of the solemn signing of the Convention in Montego Bay, Jamaica, on December 10, 1982, Tommy Koh, President of UNCLOS III, stressed a number of important innovations which make this Convention, covering three fourths of the surface of our planet, unique. The first is
| the Convention will promote the maintenance of international peace and security because it will replace a plethora of conflicting claims by
coastal States with universally agreed limits on the territorial sea, on the contiguous zone, on the exclusive economic zone and on the continental
shelf. |
The elaborate system for the mandatory peaceful settlement of disputes, the most advanced ever designed and accepted by the international community, constitutes another major contribution to the enhancement of peace. Tommy Koh adds:
| The world community's interest in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes
between States have been advanced by the mandatory system of dispute settlement in the Convention. |
But perhaps the greatest contribution to the enhancement of peace is the introduction of a new principle of international Law, the principle of the Common Heritage of Mankind, which reserves the international sea-bed area, covering two-thirds of the surface of the planet, as well as the high seas and exclusive economic zones, up to the limit of the territorial sea, 12 miles from shore, for peaceful purposes. Also the mineral resources of the international sea-bed are part of the Common Heritage of Mankind, and thus reserved for exclusively peaceful purposes, a concept that is now being expanded, through the Straddling Stocks Agreement,3 to the ocean=s living resources, even though the term “common heritage of mankind” is not yet applied to them.
In his above cited “remarks” Tommy Koh refers to the originator of this principle and Father of the new Law of the Sea:
|
Arvid Pardo contributed two seminal ideas to our work: first, that the resources of the deep sea-bed constitute the common heritage of mankind, and second, that all aspects of ocean space are interrelated and should be treated as an integral whole. |
These two “seminal ideas” are in fact the coordinates of the whole new system, into which everything now must fit.
Other highly innovative concepts, also listed by Tommy Koh, are:
・ The establishment of a framework for the development of international environmental law in Part XII of the Convention. This was, and still is, the only existing body of globally comprehensive international environmental law, covering pollution from all sources, whether oceanic, terrestrial or atmospheric, in all regions in the world, in a functionally and geographically integrated system. The UNCED process would be unthinkable without Part XII of the LOS Convention and it has given rise to an impressive development of environmental law during the last quarter of a century; and
・ The creation of a new regime for the conduct of marine scientific research, which, as Tommy Koh put it, strikes “an equitable balance between the interests of the research States and the interests of the coastal States in whose economic zones or continental shelves the research is to be carried out.”
Of course, time did not come to a stand-still in 1982. History keeps flowing; scientific, political and socio-economic perspectives keep changing. The Law of the Sea Convention must be considered more as a “process” than a “product.” A “process” capable of interacting with changing situations. It will impact on changing scientific, political and socio-economic trends and perspectives, and it will be impacted by them.
In its origins, going back a few thousand years, the Law of the Sea was shipping law, as exemplified, in European history, by the Rhodian sea law. Other issues came into consideration much later. The issue of Sovereignty versus Freedom of the High Seas became a focal point with Hugo Grotius in the seventeenth century, resources management as well as the protection of the environment made their entry only in the 20th century. Thus what had been unitary at the beginning became multi-sectoral in the course of history. In 1958, when existing conventional and customary law was codified, the approach was still sectoral, and resulted in four independent Conventions. It was only in the 1970s that the movement towards an integrated approach began - largely under the influence of Arvid Pardo and his “seminal idea” that the problems of ocean space are closely interrelated and need to be considered as a whole. The Law of the Sea Convention marks the culmination of this integrative effort. It covers all major uses of ocean space and resources as we could conceive them in the seventies, and it covered them globally, in the world ocean as a whole. Historically, this must be considered as a monumental achievement.
But then the pendulum began to swing in the other direction. In the still strictly sectoralized institutional structures, whether national or international, governmental or nongovernmental, and including the United Nations, an integrated approach appeared very difficult if not impossible to pursue. New pieces of Law of the Sea were made by different international conferences, with Delegations constituted by different Government Departments, often with little knowledge of the Law of the Sea Convention. Shipping law went its own way, under the aegis of the International Maritime Organization (IMO) and UNCTAD. Fishing was dealt with by FAO. The Earth Summit in Rio, 1992, generated a slew of Conventions, Agreements and Programmes,4 each one with its own, sectoral mandate, each one with its own Secretariat. Thus there are now important overlaps, generating duplication of efforts, and important developments, such as the growing emphasis on the ocean/atmosphere interface, or the ocean/coastal zone interface, but there was not any body that could deal with them in an integrated fashion, nationally or internationally. Clearly, an institutional gap was widening, hindering the effective implementation of the rich juridical inheritance of the last quarter of a century.
