|Ocean Governance: Sustainable Development of the Seas (UNU, 1994, 369 pages)|
Dr Joseph Warioba, Tanzania
It is now twenty-four years since Dr Pardo, on behalf of Malta, placed the issue of the Common Heritage of Mankind on the agenda of the General Assembly of the United Nations. It took fifteen years of discussion, preparation, and negotiation - from 1967 to 1982 - to adopt the Convention on the Law of the Sea. The 1970s was a decade of intensive activity and effort in an attempt to evolve a new international economic order and to establish a new order in the oceans. The negotiations on a new international order were virtually killed at the Cancun Summit in 1981, but the Law of the Sea negotiations were successfully concluded and the Law of the Sea Convention was adopted and opened for signature in December, 1982, at Montego Bay, Jamaica.
But even after so many years of intensive global discussion and great achievement, the full significance of the Law of the Sea Convention is yet to be acknowledged. In the early eighties an attempt was made to minimize the importance of the Convention by arguing that apart from Part XI the Convention simply codifies customary law or reflects existing international practice. Apart from the argument being false, the reality now is that state action relating to matters of the oceans has reference to the Convention. The evidence available shows clearly that States have accepted the Convention and national, regional, and international action relative to the ocean has reference to the Convention. The International Court of Justice now also bases its decisions on the Convention. With regard to Part XI, which deals with the global commons, States, even those which do not fully accept it, have acknowledged its importance. For example, major powers which did not sign the Convention accepted the provisions of Resolution II of the Conference and resolved conflicts of overlap in accordance with the principles laid down by the Convention. Indeed they found it appropriate to do so under the good offices of the Preparatory Commission. Even the United States, which is neither a signatory of the Convention nor a participant in the Preparatory Commission, was interested in and implicitly accepted, the methods used to resolve the conflicts of overlap.
As it has been stated so many times, "the problems of ocean space are closely interrelated and need to be considered as a whole." Before 1982 matters relating to the oceans were scattered in several conventions, including the conventions resulting from the conference of 1958. The 1982 Convention is one comprehensive whole. It is indeed a world constitution for the oceans; and as such its ratification is very important.
The Convention is important because it is universal in every sense. Participation in its making was universal in a real sense. The number of participating states and countries was larger than the membership of the United Nations, and the participation of international organizations, both governmental and non-governmental, was probably the largest ever. Furthermore, the participation of every entity was very significant.
For developing countries one can say this was the first important international instrument where their contribution was most impressive and was so acknowledged. It is the one instrument where both the developed and developing worlds can point out clearly that such and such contribution came from the developing world.
Although the Convention is comprehensive and although most of the provisions are detailed and specific, especially in Part XI, there are areas where the provisions are very general in nature and there is a need to develop them further; for example, the chapters on marine scientific research, protection, and preservation of the marine environment and development and transfer of marine technology. Development in these areas would be best done within the framework and using the mechanisms set out in the Convention. This is particularly important in view of such events as the United Nations Conference on Environment and Development. The Law of the Sea Convention contains the only existing, comprehensive, binding, and enforceable international environmental law covering pollution from all sources, whether oceanic, land-based, or atmospheric. It is indeed the only existing legal instrument that effectively integrates the protection of the environment with development - development of living and non-living resources, development of science and technology, and development of human resources. It is also the only existing legal instrument that imposes binding and enforceable peaceful settlement of disputes arising from, among other things, environmental issues.
Ratification is also important in order to consolidate the comprehensiveness of the Convention. The coming into force of the Convention will trigger into action the institutional framework and mechanism envisaged in its provisions. It is true that the institutional framework that is beginning to emerge as a consequence of the Convention is indeed the most advanced that has been conceived so far to meet the challenges put forward by the Report of the World Commission on Environment and Development. It is true also that there is now widespread agreement that a new forum is needed where the problems of ocean space can be considered as a whole. But the present situation needs to be improved. The progress that has been made so far is at the international level, particularly with regard to international governmental organizations. They have tried individually to incorporate and expand their ocean-related activities and they have also made commendable efforts to develop mechanisms for close cooperation and coordination. But these efforts by themselves are not enough. Of crucial importance is the development of a coordinated approach at national and regional levels, particularly in developing countries.
At the national level, especially in the developing countries, the proper institutional framework and mechanisms are not in place to deal with ocean matters on a comprehensive basis. It is common to find in any government different departments dealing with different aspects of ocean matters in complete isolation. In my own country (Tanzania), for example, fisheries, mining, scientific research, environment, etc. are each under a different ministry and there is no proper coordinating mechanism. Decision-making is also done in an uncoordinated manner and participation at regional and international levels is similarly ineffective.
Although at the regional level some efforts have been, and are being made, to improve the situation, especially in areas where international organizations are active, there is still much to be done. The Convention is the only guide to a comprehensive approach and its coming into force will greatly influence action at all levels. The universal participation in the formulation of the provisions of the Convention greatly influenced States to consider issues of the oceans in a comprehensive and coordinated manner, and I believe the coming into force of the Convention will have a tremendous impact on State action and it will of necessity influence institutional frameworks and mechanisms at the national and the regional level, which will similarly have a comprehensive approach.
It is nine years since the Convention was concluded and signed. Sixty ratifications are required before it comes into force, and on the receipt of the sixtieth ratification a year will elapse before the Convention comes into force. In the meantime, two things ought to be done. The first is that States party to the Convention must agree on a very clear and practical policy with regard to what to do next. The Preparatory Commission, without fanfare, has done a commendable job in the preparation of the detailed rules and regulations. International organizations have also done a lot of useful work which will help a great deal when the Convention comes into force. But even with the commendable work done so far, the period between the sixtieth ratification and the coming into force of the Convention is of crucial importance for the future of the law of the sea and world order.
States that have ratified the Convention are mostly developing countries. This is not surprising. As already stated, the Convention is the first major international instrument in which the contribution of the developing countries was very significant. All developing countries participated actively and effectively in the negotiations. In the process they were able to understand not only the complexity of the issues and the importance of dealing with all the issues of the oceans as a comprehensive whole, but they also understood the importance of managing ocean affairs under a generally agreed international legal instrument. Taking into account their weak position in international relations, they stand to benefit in a fair manner if the Convention is the governing instrument.
The ratification and coming into force of the Convention is extremely important for developing countries, and they have, therefore, a heavier responsibility to bring the Convention into operation. There are of course some problems in the Convention coming into force without the effective participation of the major powers. For example, the establishment of the Council of the Seabed Authority and its various organs will not be possible under the formula laid down in the provisions of the Convention. The composition and procedure of voting of the Council requires consideration of various special interests, something which will not be possible if the Convention will come into effect on the ratification of only developing countries. But this should not be an obstacle, article 308 anticipated this sort of situation by providing that the first Council would be constituted in a manner consistent with the purpose of article 161 if the provisions of that article (which require a composition of the Council to conform to special interests) cannot be strictly applied. The establishment and maintenance of the Secretariat and the convening of the Assembly may also not be easy, mainly because of the inability of ratifying States to foot the expenses, but this can easily be resolved by evolving a procedure within the United Nations system to enable these organs to function with minimal expenses. All in all the developing States that have ratified the Convention should not shy away from bringing the Convention into operation.
The coming into operation of the Convention is equally important to the international community as a whole. In the first place it is important for all States to maintain peace in the oceans. The Convention is the only instrument generally accepted internationally. It has set out clearly the rights and obligations of every national and international entity, and it has also set up an elaborate system of peaceful settlement of disputes. In a word, the Convention is an instrument of peace in the oceans.
Furthermore, current and upcoming international initiatives in this field take the Convention as an indispensable framework. For example, the United Nations Conference on Environment and Development and its follow up activities draw heavily on the provisions of the Convention. The results of these initiatives will have a greater impact with the Convention in force.
The theme of this Conference is "Ocean Governance" at all levels: national, regional, and global. It covers many aspects of ocean affairs, the required framework and mechanisms, structures for decision-making at all levels, structures for cooperation at all levels, structures for special areas such as the environment, transfer of technology, marine scientific research, and modes of cooperation and coordination. The agenda has been carefully prepared and all the speakers and discussants are highly qualified and experienced people in the field. I have no doubt in my mind that the results of this Conference will make a great contribution and give a new impetus to the ratification process in order to save the Convention from being dismantled and forgotten. And I believe also it will contribute to the development of new frameworks and mechanisms at national, regional, and international levels for the purpose of achieving better integration and coordination of ocean governance that will be beneficial to all.