|The Oceanic Circle - Governing the Seas as a Global Resource (UNU, 1998, 257 pages)|
|5. Ocean perspectives: institutional|
In his address to the General Assembly, the Minister of Foreign Affairs of Malta proposed that the Trusteeship Council, which had practically completed its task of decolonialization, should be dedicated to a great new task: it should become the guardian of the principle of the Common Heritage of Mankind - not only in the international sea-bed, not only in the oceans, but as applicable to "the global commons" in general, including atmosphere, outer space, and the Antarctic. He elaborated his proposal further in his address to a workshop, "The United Nations: Second Generation," held in Malta in October 1994 under the auspices of the International Ocean Institute, the Foundation for International Studies, and the Ministry of Foreign Affairs of Malta. The concept was also adopted by the Commission on Global Governance in its report, Our Global Neighbourhood.
Meanwhile, a new need has emerged for trusteeship
to be exercised over the global commons in the collective interest of humanity,
including future generations. The global commons include the atmosphere, outer
space, the ocean beyond national jurisdiction, and the related environment and
life-support systems that contribute to the support of human life. The new
global trusteeship also needs to encompass the responsibilities that each
generation must accept towards future generations.26
During the same year, I tried to spell out the proposal in some more detail in my book Ocean Governance and the United Nations. I suggested that the Council should consist, as heretofore, of 53 members and that they should be elected by the General Assembly on the basis of equitable geographic representation. The present composition, established for the purpose of watching over the decolonialization process, is clearly not suitable for the new mandate. The functions of the new Trusteeship Council would be:
- to consider reports submitted by Members of the United Nations, the specialized agencies and programmes as well as the International Sea-bed Authority and competent non-governmental organizations;
- to accept petitions and examine them in consultation with the agency or institution concerned; and
- to provide for periodic visits to locations where violations are suspected and take actions in conformity with the terms of its mandate.
The Trusteeship Council would hold in sacred trust the principle of the Common Heritage of Mankind. It would monitor compliance with this principle in accordance with international law, in ocean space, outer space, and the atmosphere as well as Antarctica, and report any infringement thereof to the General Assembly. It would deliberate on its wider application to matters of common concern affecting comprehensive security and sustainable development and the dignity of human life, and make its recommendations to the authorities and institutions concerned. The Trusteeship Council would act as the conscience of the United Nations and the guardian of future generations.
Between 1994 and 1997, the Maltese proposal was not given the attention it deserved - in spite of the endorsement of the Commission on Global Governance with its illustrious membership. The general objection was that it was not practical because it required Charter amendment on which there would be no agreement.
The relationship between the UN Commission on Sustainable Development and this new Trusteeship Council would be unclear and there might be overlaps of responsibilities.
Last but not least, the idea of expanding the application of the Common Heritage principle from the present limited scope of the deep sea-bed minerals to a wider sphere is still looked upon with dread and horror by the defenders of the status quo.
This situation changed rapidly when, to everyone's surprise, the Secretary General of the United Nations, Kofi Annan, took up the proposal in his report (document A/51/950) dated 14 July 1997 to the 51st Session of the General Assembly, entitled "Renewing the United Nations: A Programme for Reform." Under the heading "A new concept of trusteeship," he wrote:
84. Although the United Nations was established primarily to serve Member States, it also expresses the highest aspirations of men, women and children around the world. Indeed, the Charter begins by declaring the determination of "We the peoples of the United Nations" to achieve a peaceful and just world order. Relations between the United Nations and agencies of civil society are growing in salience in every major sector of the United Nations agenda. The global commons are the policy domain in which this intermingling of sectors and institutions is most advanced.
85. Member States appear to have decided to retain the Trusteeship Council. The Secretary General proposes therefore that it be reconstituted as the forum through which Member States exercise their collective trusteeship for the integrity of the global environment and common areas such as the oceans, atmosphere and outer space. At the same time, it should serve to link the United Nations and civil society in addressing these areas of global concern, which require the active contribution of public, private and voluntary sectors. [Emphasis added]
Within three years, the proposal thus moved from the realm of Utopia, which could be conveniently ignored, to the realm of politics, and it may be there to stay. In the first paragraph, the Secretary General rightly notes that "the global commons are the policy domain in which this intermingling of sectors and institutions is most advanced." By "global commons," in this context, he can only mean the oceans, because it is only in the emerging ocean and coastal regime that this development is taking place - thus confirming that this regime will be a model for and part of the new international order for the next century.
The Secretary General studiously avoided the controversial term "Common Heritage of Mankind," and couched his proposal in more generic terms - less controversial because less defined - such as "common areas" and "areas of global concern," but what's in a name?
One could indeed imagine this new Trusteeship Council evolving into a sort of senate of wise persons watching over and deliberating on the evolving concept of the Common Heritage and its applications, and to advise the General Assembly, and in particular, its Committee of the Whole, dealing with the oceans, on emerging and evolving issues. Its relationship to that Committee of the Whole, or "ocean assembly," would be quite clear: They would not "overlap," with a consequent duplication of efforts. The General Assembly or its Committee of the Whole would be the only body composed of the full membership of the United Nations - therefore, the only body capable of generating a comprehensive integrated oceans policy. On the other hand, this Committee of the Whole or "Ocean Assembly" should be limited in its mandate to consideration of issues arising from the Law of the Sea, the ocean and coastal management-related parts of the UNCED conventions, agreements, and programmes and the ocean-related policies and activities of the specialized agencies and competent international organizations. This is indeed a wide enough mandate.
The Trusteeship Council, on the other hand, with its limited membership but a mandate far broader than the oceans, would consider issues arising from the Common Heritage concept in ocean policy in the broader context given by the UNCED process.
Its relationship to the UN Commission on Sustainable Development is a little harder to define because, as we tried to show in previous chapters, the concepts of common heritage and of sustainable development are inseparable. Thus it is not at the level of content, but on the level of process that the relationship must be defined. The Commission on Sustainable Development is an executive body, responsible for the implementation of Agenda 21 and the other UNCED conventions, agreements, and programmes - a very broad, practical agenda. The attention it has been able to devote to the oceans has been inadequate. It would have no time to concern itself with the evolution of the Common Heritage principle.
The Trusteeship Council would be a deliberative and advisory body, and in its advisory function it could be as useful to the Commission on Sustainable Development as it would be to the "Ocean Assembly."