|The Oceanic Circle - Governing the Seas as a Global Resource (UNU, 1998, 257 pages)|
|5. Ocean perspectives: institutional|
1. See chapter 3 above.
2. Report by the World Commission on Environment and Development, 1987.
3. United Nations Conference on Environment and Development, Rio de Janeiro, 1992.
4. Hasler, 1998.
6. Fanning, 1997.
7. Bruce Gillies, 1999, "The Nunavut Final Agreement and Marine Management in the North," Northern Perspectives 23 (1): 17-19. Canadian Arctic Resources Committee.
8. Jentoft and Mikalsen, 1994.
9. Welch, 1995.
10. Borgese, 1995.
11. UNEP, 1993.
12. European Technological Collaboration, 1987.
13. Malta: Foundation for International Studies, 1987.
14. Saigal, 1988.
15. The technology transfer programme of the Montreal Protocol, with its Multilateral Fund has been hailed as a success story. Anil Agarwal, Director of the Ministry of Environment and Forests of the Government of India, has some serious reservations: "Again, there is a growing feeling that new technologies will replace existing ones. This would take place largely in the North, and the South will have to bear the cost of subsequent conversions. The full implications are yet to be known, but the thought of technological dependence leaves a very uncomfortable feeling..." (UNEP, Our Planet, Vol. 9, No. 2, 1997) Technology co-development or joint R&D, as proposed in these pages, would alleviate these concerns.
16. When the Law of the Sea Convention was adopted in 1982, it covered all uses of the oceans, directly or indirectly through reference to "the competent international organizations" and their conventions and programmes. The Convention could not take into account the developments of the 1990s, which, in their turn, are taking too little note of the Convention. Thus the ocean regime, again, is being splintered and sectoralized. Fundamentally, the problem cannot be solved until there is a forum where states and non-state actors can discuss the closely interrelated problems of ocean space as a whole, treating the Convention as a living and evolving organism incorporating and adjusting to new developments such as those of the 1990s. By a more liberal interpretation of the new legal instruments with regard to technology cooperation, however, one can, to some extent, anticipate and stimulate the new integration process.
17. Upon the publication of the 101 study, the Italian EUROMAR coordinator took the initiative of calling a meeting to discuss the possibility of opening EUROMAR to the participation of developing countries. The proposal at that time was defeated. The French delegation, in particular, insisted that EUREKA and EUROMAR had to remain European, as the principal purpose was to make European industry globally competitive. Today the situation is somewhat different. The European Union's emphasis on technical assistance to the countries on the southern and eastern shores of the Mediterranean offers a far better chance of cooperation.
18. Paragraph 92 of this Programme reads: "Governments should create a legal and policy framework that is conducive to technology-related private sector investments and long-term sustainable development objectives. Governments and international development institutions should continue to play a key role in establishing public-private partnerships, within and between developed and developing countries and countries with economies in transition. Such partnerships are essential for linking the advantages of the private sector - access to finance and technology, managerial efficiency, entrepreneurial experience and engineering expertise - with the capacity of governments to create a policy environment that is conducive to technology-related private-sector investments and long-term sustainable development objectives." Paragraph 93 recommends the creation of centres for the transfer of technology at various levels, including the regional level. Paragraph 95 stresses the importance of taking appropriate measures to strengthen South-South cooperation for technology transfer and capacity-building.
19. UNEP(OCA)/MED IG > 8/CRP/9, paragraphs (a), 1-3.
20. A similar methodology, to attain the advantages mentioned above, was developed in the Preliminary Draft of a World Constitution, first published by the University of Chicago in 1948. Election by a universal body upon the nomination by local bodies was referred to as "exogenous representation." See A Constitution for the World, Santa Barbara, CA: Center for the Study of Democratic Institutions, 1965.
21. Jens Evenson, formerly Judge at the International Court of Justice, advocates this opinion. While he notes that the Law of the Sea Convention does not directly address the denuclearization of the oceans or related arms limitation issues, he concludes that "the Convention further codifies the principles which underlie the peaceful uses of ocean space. As such the Convention could serve as a legal basis for more directly addressing the issue of nuclear weapons at sea." Evenson, 1986.
22. See Lopez-Reyes, 1997.
23. "Economic Integration Organisations," which have a standing in all new convention regimes.
24. Doc. A/51/645.
25. ISBA is not a specialized agency but an independent intergovernmental treaty-created body with "observer status" at the UN and at the International Tribunal for the Law of the Sea.
26. Commission on Global Governance, 1995.
27. The first session, 1994-1995, was divided into three sections, including the Inaugural Session.
28. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 1982, 17 August 1994, A/RES/48/263.
29. Implementation Agreement, Annex, section I, para. 12 (a).
30. Ibid., para. 14.
31. Ibid., para. 2.
32. The Implementation Agreement abandons the concept of "compensation" and replaces it with "economic assistance." However, the notion that such assistance is restricted to developing countries which suffer serious adverse effects on their export earnings ... resulting from a reduction in the price of an affected mineral ... to the extent that such reduction is caused by activities in the Area, is maintained (section 7, para. l).
33. See, for instance, Provisional Conclusions of the Deliberations of Special Commission 1 which can form the basis of its recommendations to the International Sea-bed Authority (Revised Suggestions by the Chairman, Provisional Conclusion 8): "The Authority should devise a methodology to determine the effects of sea-bed production on the price and volume of exports of the affected metals and to separate them from the effects caused by other factors. In devising such a methodology, the Authority shall take into account: world metal market situation; change in consumption patterns; production from maritime zones under national jurisdiction; substitution; recycling; technological developments; other relevant factors, such as the general economic conditions, the government policies and the exhaustion of deposits within national jurisdiction of the developing land-based producer States concerned." In Renate Platzöder, ed. The Law of the Sea Documents: 1983-1990, Vol. XI. Dobbs Ferry, NY: Oceana Press, 1990.
34. Art. 7, para. 2. "Conservation and management taken on the high seas and those taken in areas under national jurisdiction shall be compatible in order to ensure conservation and management of the stocks overall. To this end, coastal states and states fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of straddling fish stocks and highly migratory fish stocks."
35. This power to limit, in future, the production of minerals derived from resources other than manganese nodules was cancelled by the Implementation Agreement in section 6, para. 7.
36. The Implementation Agreement appears to limit the application of this provision to matters specified in sections 2 (The Enterprise), 5 (Transfer of Technology), 6 (Production Policy), 7 (Economic Assistance) and 8 (Financial Terms of Contract). This would not include resources other than manganese nodules. However, there is no statement to the effect that the provision regarding other resources "shall not apply."
37. The Council consists of 36 members who must be elected by the
Assembly in the following
First, (a) four members from among states who are the largest consumers and/or importers of the metals produced from the nodules and have consumed and or imported more than 2 per cent of total world consumption or imports. Among these four there must be one state from the Eastern European (Socialist) region.
Second, (b) four members from among the eight states who have made the largest investments in nodule mining. Again, one state from the Eastern European region must be included.
Third, (c) four members from among states who are the largest producers and or exporters of the metals produced in the Area, and these four must include at least two developing countries whose exports of such minerals have a substantial bearing upon their economies;
Fourth, (d) six developing countries, representing special interests, including states with large populations, land-locked or geographically disadvantaged states, states who are large importers of these minerals, states who are potential producers, and least-developed states.
Fifth, and finally (e) 18 members are to be elected to ensure equitable geographic representation in the Council as a whole.
Members are elected for four years; during the first election, half of the members are elected for two years. To have staggered terms:
Each member has one vote.
Decision-making is based on a tier system. Procedural questions require a simple majority of members present and voting. Less controversial substantive questions require a two-thirds majority; more controversial questions require a three-fourths majority; the most controversial questions - concerning the protection of developing land-based producer states from adverse economic effects, or financial or other economic benefit sharing and some other matters as well as Amendments, are to be decided by consensus.
It is a cumbersome and complex process, but it could be implemented. How efficient it would have been remains an open question; how long the "interest groups" referred to under (a)-(b) might have changed - e.g., due to resources other than manganese nodules being exploited - remains another open question.
38. Document ISBA/A/L.8, 21 March 1996.
39. The Federal Republic of Germany, although under no obligation to do so, has offered a training programme which obviously should be utilized. The International Ocean Institute, in cooperation with China and India, and funded by the Nippon Foundation of Japan, is conducting training programmes for managers and project planners in deep-sea activities. The intensive five-week programme takes place in India and China in alternate years. In 1997 it was conducted at the University of the West Indies in Kingston, Jamaica, to give the participants the opportunity for direct contacts with the International Sea-Bed Authority. The programme is directed by the Hon. Joseph Warioba of Tanzania, in cooperation with the Directors of IOI India and IOI China.
40. Such a programme was proposed in 1987 by the Federal Republic of Germany.