日本財団図書館（電子図書館）　国際会議「地球未来への企画“海を護る”」会議録?海洋の平和維持と環境保護のための法的・政策的枠組みと行動計画?

Session 2-3

DILEMMAS AND APPROACHES IN THE NEW OCEAN REGIME: THE INTEGRATION OF RESOURCE UTILIZATION AND ENVIRONMENTAL PROTECTION

Merlin M. Magallona

I. The Conference in Perspective

For reason that goes into the main orientation of this paper, I find it necessary to interpret the perspective of this Conference. The Conference takes on the central theme of "Geo Future Project: Protect the Ocean." Then it identifies three issues to be considered in dealing with this theme, namely: "environmental protection, maintenance of peace in the ocean, and legal and policy frameworks for building and implementing the International Order of the Sea."

We are therefore invited to engage ourselves in the focal concern of Protecting the Ocean. In the perspective of this Conference, Protecting the Ocean is to be interpreted in a larger conceptual frame. We are enjoined to see the "deepening relationship of man-kind to the ocean" in taking up environmental issues. It is suggested that we recognize marine protection in the light of maritime security", with the outlook of "maritime security in a broad description to protect the ocean which is the basis for life support." The Conference perspective indicates to us that the three issues thus identified must be studied as pertinent to "maritime security in a broad new sense". This conveys the understanding that the "broad new sense" of maritime security is "to protect the ocean for the earth's future".

In pursuing the Conference perspective, I take it as a guideline to view the present conditions of marine environment from the standpoint of common interests of humanity, not so much from a compartmentalized approach of individual states or socio-economic sectors. As a major scale of the biosphere, marine environment has become a more critical system for the sustenance of life in Planet Earth than ever before. Its integrating force encompasses elements beyond the regime of the ocean proper. Indeed, as now recognized in the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, as approved by the International Seabed Authority, marine environment includes "the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine eco-system, the waters of the sea and oceans and airspace above those waters, as well as the seabed and ocean floor and subsoil thereof."¹ Protection of the marine environment as thus expanded may as well be properly circumscribed by the language of the Commission on Global Governance when it speaks of "security for the new era" in its objective "to maintain the integrity of the planet's life support systems by eliminating the economic, social, environmental, political, and military conditions that generate threats to the security of the people and the planet".²

Position: Professor, College of Law Faculty, University of the Philippines

Education: Faculty of Law, University of the Philippines graduate / Passed the Philippine Bar Examination

Magallona has been in his present position for more than 30 years. He served as Dean of the UP College of Law from 1995-1999. In 1999, the Judicial Bar and Council nominated him to the position of Associate Justice of the Supreme Court. He was appointed Undersecretary of the Department of Foreign Affairs in 2000, which he served until his resignation last 2002. He represented the Philippine Republic as Counsel and Advocate before the International Court of Justice in Legality of Threat or Use of Nuclear Weapons in Ligitan and Sipadan Intervention case in 2001. He was a member of an arbitral tribunal in the International Court of Arbitration of the International Chamber of Commerce in 1999-2000. He was visiting fellow at Oxford University in 1969-1970 and at Graduate School of International Development of Nagoya University in 1994. He is well versed in the law of the sea and international law Some of his works are A Primer on the Law of the Sea, A Primer on the Law of. Treaties, and International Issues in Perspective.

Marine security "in the broad new sense" should involve a shift in the angle of vision. From the confines of state boundaries and jurisdictions, the concept of global security must now ensure the survival of humankind through the protection and preservation of its life's support systems, in particular the marine environment. The scale of humanity's production systems and the intensity of its development operations are nearing the breaking point in the planet's tolerance.

Thirty years ago, returning from a round-the-world voyage on his research ship Calypso, Jacques-Yves Cousteau described the ocean as sick and dying, as a result of human use and abuse. The health of the ocean has terribly deteriorated. Since then marine biomass has been reduced by 40 per cent; more than a thousand species of marine flora and fauna have vanished; and more than a hundred square kilometers of the ocean floor have become waste disposal grounds. This sampling of a broad range of human activities suggests a totalizing impact on the marine environment that at once places humankind's life-support systems at great risk. The ocean covers about 71 per cent of the planet's surface and constitutes 94 per cent of the hydrosphere. The "broad new sense" of maritime security spells the security of the planet.

Returning to the shift in angle of vision which the Conference perspective entails, justifiably, the protection of the environment by itself, beyond and independent of the security of the state and its institutions, has gained recognition in the progressive development of international law. Under the UN Convention of the Law of the Sea, the manner by which Article 192 defines the general obligation of States to protect and preserve the marine environment, as well as the resulting responsibility and liability in Article 235, lends itself to a reasonable interpretation that States assume that duty and are responsible for damage to the marine environment without any connection with the interests of other States. ³Regulation 30 of the International Seabed Authority on prospecting and exploration for polymetallic nodules,⁴ defines the responsibility of the contractor in terms of his wrongful acts "in the conduct of its operations, in particular to the marine environment", without regard as to whether any State or other party has suffered a loss or damage. Liability pertains to "damage to the marine environment" in itself to which the law imputes value in determining compensation independent of the interests of any State or party.⁵

All this demonstrates the integral connection of the human world to the ocean, such that the death of the ocean spells the death of humankind. Protection and preservation of the marine environment has become the collective security of all the peoples inhabiting this planet. It is no less the security of Planet Earth.

II. Dilemmas and Challenges in the International Ocean Regime

In the last 20 years, since the third UN Conference on the Law of the Sea opened for signature the Convention on the Law of the Sea at Montego Bay, Jamaica, on 10 December 1982, a number of developments have emerged as challenges to the concepts and approaches of the new international regime of the ocean; they are dilemmas which will continue to bedevil the global community way into the mid-century unless fundamental adjustments are developed in the existing paradigms and institutions.

1. In the rising global temperature, the very survival of the human community is threatened. And yet climate change that characterized global warming "is attributed directly or indirectly to human activity that alters the composition of the global atmosphere",⁶ and thus it is by the decisive impact of what the International Panel on Climate Change has referred to as the "noticeable human influence on the world climate" that global warming has become a grim reality, especially in the advent of ozone depletion. More concretely, the Framework Convention on Climate Change recognizes that "the largest share of historical and current global emissions of greenhouse gases has originated in developed countries"⁷ and, accordingly, gives a direction in the mandate that "the developing country Parties should take the lead in combating climate change and the adverse effects thereof."⁸

The anticipated catastrophe has begun to unfold in the thermal expansion of seawater, resulting in the marked rise of sea level estimated to be between 15 to 60 centimeters.⁹ Combined with storms and floods, the far-reaching consequences of this catastrophe are incalculable; it would claim its first victims among the 30 per cent of the world's population in the coastal areas and from the three-fifths of the world's mega-cities located on the coast. On a projected world population, it has been estimated that sea-level rise would affect from 60 to 300 million people.¹⁰

2. Sustainable development has established itself as a transcendental principle governing the environment. Coming a decade after the Third UN Conference on the Law of the Sea, the Rio Conference on Environment and Development dramatized the advent of this principle and paved the way for the United Nations system to accommodate it as an institution. Chapter 17 of its Agenda 21 brings ocean governance into the framework of sustainable development; in turn the UN Convention on the Law of the Sea becomes the juridical vehicle of sustainable development. The marked significance of this Chapter stands out in its commitment for cooperation among States to implement the principle of sustainable development in the ocean regime.

Expectedly, sustainable development will profoundly condition the exploitation and allocation of the ocean resources. Its standards and their far-reaching implications loom large in the Report of the World Commission on Environment and Development as a basis for significant changes in the future course of the ocean governance. It declares that ―

...[P]hysical 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 of physical sustainability implies a concern for social equity between the generations, a concern that must logically be extended to equity within each generation.¹¹

Thus, the Report conceptualizes a radical shift to a regulatory mechanism that will carry out a comprehensive system of equity in the exploitation of the resources of the ocean and the distribution of their consequent benefits. Translated into regulatory standards and rules of law, the concept of sustainable development will have to deal with existing inequalities among peoples and nations as they are involved in the real process of social and economic development. It has to take into account resource capabilities as well as the economic and social disparities of States or peoples. And beyond its concern for equity in the present generation, sustainable development reaches out to the future generations. Its underlying vision is that the resources of the ocean cannot be made available only to those who have the economic facility and the technological capability, the resources of the ocean are for all the peoples of the planet. Sustainable development rests on the assumption that without respect to level of economic development or social and political system, states have the right to participate in making decisions towards realizing sustainability of resources. The Report says that "relationships that are unequal and based on dominance on one kind or another are not a sound and durable basis for interdependence,"¹² means that through financial, technological and scientific facilities States must be capacitated to have the means required in effectively making decisions.

The demands of sustainable development, which the Report considers no less than the "progressive transformation of economy and society",¹³ are a burden on the existing legal and policy framework of the ocean regime, particularly in regard to the resources beyond national jurisdiction. How much adjustment could be worked out in the concepts and institutions of the UN Convention on the Law of the Sea to accommodate the fuller scope of sustainable development, may prove to be a challenging option in the next decade or two.

3. In correlation with the requirements of sustainable developments the risks involved in the deteriorating condition of the environment become all the more sobering on account of the human-activity impact as the world population is expected to double towards the mid-century. World population now stands at 6.1 billion; it is predicted to increase by three billion over the next 50 years. Growth trends will continue to be in Africa, Asia, and Latin America.¹⁴

Global disparities are, in the extreme, reflected in the fact that 358 people own as much wealth as 2.5 billion people own together, which is nearly half of the world population.¹⁵ The number of absolute poor people, described to be truly destitute, has considerably grown from the 1993 figure of 1.3 billion, which is a little more than the total population of developed countries, and is about one-fifth of the world population.¹⁶

Close to 80 per cent of the world population of 6 billion live in the least developed countries where population growth is concentrated. Based on the estimated annual increase of 90 million in world population, 75 per cent is accounted for by developing countries, which have a share of only 15 per cent of the total world income.¹⁷

The reality represented by this sampling truly determines the conditions by which States and peoples gain or are denied access to the world resources, to the resources of the ocean in particular. How they can share in the regulation of "access to resources and in the distribution of costs and benefits" within the framework of sustainable development of the ocean becomes part of the human predicament.

NOTES

¹	Part I, para. 3(c) in Annex. ISBA/6/A/18. The Regulations were approved by the Assembly of the International Seabed Authority in its 76^th meeting (sixth session) on 13 July 2002.

²	Our Global Neighborhood. Report of the Commission on Global Governance, 1995, pp. 84-85 (New York: Oxford University Press).

³	See Alan Boyle, Marine Pollution Under the Law of the Sea Convention, American Journal of International Law, vol. 79, 1985, pp. 349, 366-367.

⁴	See supra note 1.

⁵	See Andre Nollkaemper, Deep Seabed Mining and the Protection of the Marine Environment, Marine Policy, vol. 15, no 1 (January 1991), pp. 55, 63.

⁶	Framework Convention on Climate Change, Article 1 (2), 9 May 1992, International Legal Materials, vol. 31 , p. 849 (1992).

⁷	See preambular paragraphs, supra, note 6.

⁸	Article 3, supra, note 6.

⁹	See International Panel on Climate Change, Second Assessment Report (1996).

¹⁰

See Crispin Tickell, Environmental Refugees: The Human Impact of Global Climate Change, in Terrel J.Minger (ed ), Greenhouse Glasnost: The Crisis of Global Warming, p. 189 (1990). See also Hans-Peter Martin and Harold Schumann, The Global Trap: Globalization and the Assault on Prosperity and Democracy, 1998 (London: 2ed Books Ltd.) pp, 30-31,

¹¹	World Commission on Environment and Development, Our Common Future , 1987 (Oxford: Oxford University Press), p. 43.

¹²	Ibid., p. 67.

¹³	Ibid., p. 9.

¹⁴	UN Population Fund, State of the Worlds Population 1992 (New York, 1993), p. 1; Manila Times, citing Associated Press report, 3 August 2001, p. 7A,

¹⁵	Hans-Peter Martin and Harold Schumann, op cit, supra note 10, citing UNDP, Human Development Report 1996 (New York, 1966).

¹⁶	See Our Global Neighborhood, supra note 2, p. 139.

¹⁷	See Peter B.Payoyo, Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity, 1997 (The Hague: Martin Nijhoff Publishers), p. 17.