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Collection/Record Group: Clinton Presidential Records
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Law of the Sea
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61
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1
2
Dan
CENTER FOR OCEANS LAW AND POLICY
WASHINGTON, D.C.
BY
THIS
AMBASSADOR DAVID A COLSON
DEPUTY ASSISTANT SECRETARY OF STATE
FOR OCEANS AND FISHERIES AFFAIRS
MARCH 19, 1993
The in part
It is indeed an honor to open this panel discussion on
"Issues in Acceptance" of the Law of the Sea Convention. My talk
is slated as "Overview and Fisheries." I will do my best to
provide an overview; please bear with me if I don't delve deeply
into the field of fisheries and do stray beyond it in some
respect.
I intend to organize this presentation into four parts.
1. Background
2. The Reality of the Law of the Sea
3. Can We Go it Alone?
4. The Best Reasons for U.S. Reengagement
There is a tendency by some to politicize U.S. oceans policy
by pointing to the strong stand taken in the Reagan and Bush
Administrations against Part XI of the 1982 Convention and by
calling forward the new Administration to change U.S. ocean
policy. That, I find, is a superficial, misguided and unhelpful
perspective. In fact, U.S. Administrations have consistently
recognized the need for a rule of law to govern more than
two-thirds of the earth's surface. Since the outset of the LOS
negotiations, all U.S. Administrations have sought a widely
ratified law of the sea convention to which the U.S. could become
a party.
Many here could do a better job than -I of writing the history
of the United States and the Law of the Sea. Let me highlight
but a point or two:
the U.S. participated actively in the First U.N.
Conference on the Law of the Sea and ratified the four
resulting Conventions;
together with the USSR in the 1960s, the U.S. saw the
need for a Third U.N. Conference on the Law of the Sea
and, in spite of the cold-war adversarial relationship,
we worked together to bring it about;
the U.S. played an active role in all negotiations at
the Third Conference;
when Part XI, the deep seabed part, turned out to be
fundamentally flawed we stood up and refused to proceed
on its basis;
- 2 -
but the United States took steps, and we continue to
take steps, to consolidate the gains, to emphasize
conforming state practice, and to solidify the balance
of interests contained elsewhere in the Convention; the
U.S. Oceans Policy Statement of 1983 establishes that we
act in accordance therewith and we expect others to do
likewise.
At all times, in all Administrations, our objective has been
an acceptable, widely ratified convention pertaining to all
aspects of ocean use. That became unachievable by vote of the
Conference in 1982. Today, more than ten years later, we are
asking whether that objective is once again in reach.
Between 1982 and today the United States has had a healthy
skepticism about the efforts to fix or creatively implement Part
XI. Initially, we had few friends internationally. As time
passed, more and more of the industrialized countries began to
realize the unworkability of Part XI and the inherent problems of
principle and burgeoning institutions contained therein. Then
the U.S.S.R. came on side, as did major developing States as the
world began to emphasize market economics. Today there is a
virtual consensus that Part XI needs to be fixed. Whether there
is a consensus on what those fixes are, however, remains to be
seen.
For several years now the Secretary General of the United
Nations has held an informal series of discussions designed to
determine whether the political will exists to come to grips with
the problems of Part XI. And problems there are. Remember:
production and commodity controls and quotas; mandatory
technology transfer; a member-financed operating arm called the
Enterprise that had competitive advantages over independent
operators; no protection for pioneer investments; financial
discretion in the UN General Assembly-like Authority; voting
formulas not commensurate with U.S. interests; no guaranteed
access to mine sites; no guaranteed seat for the U.S. on the
Council; and a review conference that could change U.S. treaty
obligations over our objections. These problems remain.
The Secretary General's discussions have created a positive
atmosphere. Interesting ideas have been suggested to deal with
one problem or another. There is a growing sense that the time
for conceptual considerations has passed and it is now time to
look at more concrete proposals.
There are now 55 ratifications. As you will recall the
Convention will enter into force one year following the deposit
of the 60th ratification.
The new Administration is determined to focus quickly on this
issue. There are questions of process, form and substance which
-- 3 -
must be addressed. I cannot prejudge today where the
Administration will come out; what I can say is what all of us
know that have followed the issue for years -- the time is ripe.
2. The Reality of the Law of the Sea Convention
As political leaders within the United States refocus on the
Law of the Sea Convention, I believe it is important to ensure
that policy makers and the public understand just what the
Convention does and what it does not do. When we speak of a
widely ratified Law of the Sea Convention covering all aspects of
ocean use it creates an image which suggests that there is to be
a legal code applicable to all states which answers all questions
that may arise.
At one level of generality that is indeed the case. At
another, it is a substantial oversimplification that risks
misleading policy makers on two important points. One, there are
always going to be the outlaws. States that do not live up to
their legal obligations or don't undertake them in the first
place. The Convention can't deal with this problem. Two, and
perhaps of more direct concern in this context, it is simply true
that many tough issues are dealt with ambiguously in the
Convention text. This ambiguity resulted from the consensus
process utilized during most of the negotiation. Often,
Committee chairman responsible for producing the text put words
in the text for one side of a debate and words in the text for
the other side thereby papering over fundamental points of
difference -- between states in the 1970s and which are still
present in the 1990s.
One can be too critical of ambiguity. It should be no
revelation that the Convention is ambiguous in parts. In others
it is not. But even where the Convention is ambiguous, it
provides a service. And any critic of the Convention must assess
the wisdom of attacking it for this reason. Even in these areas
it frames, it channels, it provides a foundation. It may not
answer a question clearly but it does identify the side boards --
the bounds within which a matter must be decided.
This framework which the Convention provides is vastly
important. No better illustration of this is the progress made
at UNCED on ocean issues. The achievement of the ocean chapter
of Agenda 21 is directly related to the fact that the
international community had a starting point, developed in eight
years of consensus building at the Third UN Conference on the Law
of the Sea. There was a framework -- a foundation -- a basis
upon which to build where the constraining factors of the debate
were known and understood. That is the reality of the Convention.
In this regard, I would like to examine one fisheries issue
as a means of illustrating what the Convention does and does not
do.
- 4 -
Straddling Stocks. We -- the U.S. -- didn't even know we had
a straddling stock issue in 1982. Our fishing industry
constituents didn't know it. The Donut Hole Fishery -- in the
central Bering Sea beyond the U.S. and Russian 200 mile zones --
did not begin until the mid-1980s. Fleets from Japan, Poland,
Korea, and China -- displaced from 200 mile zones -- found a
bonanza -- a lode of pollock -- and they quickly exploited it.
In just five years the fishery soared and crashed. From over 1.5
million metric tons to less than 10,000 metric tons in 1992. The
fish are gone. And in the process, the same stock of pollock in
the U.S. zone is devastated. The fishery on this stock is
closed. The fishermen that depend upon the fish, the coastal
communities that depend upon the fishermen, the birds and mammals
all suffer.
For several years the U.S. community went through an exercise
of trying to find the specific answer to the problem in the 1982
Convention. Various arguments were made -- words were parsed --
as only good common law lawyers can do -- putting together one
thought and another to identify a comprehensive legal approach to
the problem. And there were pronouncements that the law was this
way or that way.
Other countries, such as Canada, similarly situated but on
the Atlantic coast, did likewise in relation to its own problem.
Then there were calls that the 1982 Convention was deficient
-- flawed -- because it did not lead us inexorably to the
answer. But it did frame the debate and it told us to cooperate
and negotiate our way through the issue. And that is what we are
now doing.
In the Donut Hole negotiations we are about to have our
seventh conference in little more than two years. It is an
intensive schedule because the issue is important and we are
making progress. We have an agreed interim solution for 1993-94
and I have high hopes for a permanent arrangement to be fully
negotiated by the end of the year.
The point is that the 1982 Convention is not deficient when
it direct States to cooperate on a particular matter within the
framework it provides. Day by day, year by year, new issues
arise; our Conference negotiators were not always prophets. They
left it to us -- each day -- to sort out the details. And this
we can do, without detracting from the Convention by creating new
agreements and new understandings of a global and regional nature
that deal with marine affairs and fulfill the Convention.
No where is this requirement more true than in Part XII of
the Convention. The Marine Environment Section was negotiated in
a different era -- almost the dark ages of international
environmental activism. But the challenge is not to renegotiate
- 5 -
Part XII. The challenge is to negotiate through the IMO and
other relevant fora marine environmental agreements which create
solutions to specific problems in furtherance of the general
duties to cooperate laid out in Part XII.
The Convention is not the end for the law of the sea and
oceans policy. It is a means to these ends. Much has been done
and much remains to be done within the framework it provides.
3. Can We Go it Alone?
As U.S. policy makers reexamine the Law of the Sea Convention
the question will be asked: Can the U.S. go forward without
being a party to the Convention? The answer is yes. That may
not be the best position to be in; but, nonetheless, the answer
is yes.
For the last ten years the U.S. has operated as if the
non-seabeds provisions were obligations of the United States.
There is no reason why we cannot continue to do so. We would
need to continue to be vigilant on our own behalf not to allow
U.S. laws and regulatory practice to take us beyond the rules of
the Convention. We would also need to continue to be vigilant in
promoting our rights to use the oceans consistent with the
balance of interests set out in the Convention text. But we will
need to do these things in all events.
Further, our EEZ and territorial sea and continental shelf
are secure. Our laws and power make it SO.
Our deep seabed miners' interests are protected by our laws
and the reciprocating state agreements which have been negotiated
with the major countries with seabed mining interests.
Our rights to navigate on, over and under the world's oceans
are secured by custom, power, and the customary international law
set out in the 1982 Convention.
So, yes, if we must, we can go forward without a legally
binding treaty. We have proved it over the last ten years. We
may need to rely on this course into the future if a solution to
Part XI is not attainable. We must not lose sight of the fact
that this is an option.
4. The Best Reasons For U.S. Reengagement
If we can take care of U.S. interests without being party to
the Convention, why should the U.S. worry about any of this? Why
should we try? Why should we put ourselves through the domestic
hassles and international negotiations which will be required.
Generally, the shorthand answer is that U.S. interests can best
be served by a sure and stable ocean regime in force for many
- 6 -
States. I agree with that. It answers the question. It is
obviously better for there to be more agreement than less.
However, if we can go it alone, if our fundamental needs are
secure through customary international law, if the way the U.S.
acts would not be much different whatever course is chosen, why
run the risks of trying to fix this? Why not leave well enough
alone?
I'd like to try to provide three answers from my
perspective. I'm sure someone from DOD or someone concerned
solely with seabed mining would give you different reasons.
These are mine alone.
First, those of us that work at the State Department are fond
of the phrase "U.S. leadership." We like to "exercise
leadership." Leadership helps one shape the things to come.
Leadership provides opportunities to control events and agendas,
to minimize problems, to take advantage of opportunities.
In the Marine Corps we had a saying -- and if I delete the
explicatives it went: If you're going to lead, lead; if you're
going to follow, follow; otherwise -- get out of the way.
It seems to me that pretty aptly describes where we are today
concerning the Law of the Sea.
We are proud of talking about our leadership role on ocean
issues -- but it is going to be pretty hard to be a leader on
oceans if we are not prepared to play in the biggest game in town.
And, to most observers, including this one, it appears as if
the game is about to resume with a new degree of seriousness not
seen since 1980.
Further, if we avoid the big show -- the 1982 Convention, it
is going to be much more difficult to claim a leadership role in
the many important, but subsidiary ocean negotiations. UNCED
itself spun off four global negotiations in the oceans area:
highly migratory species and straddling stocks; land based
sources of marine pollution; coastal zone management; and small
island states. But there are many, many more. I bet that on
average there is at least one major international negotiation on
an oceans related topic every week in which the United States has
substantive interests at stake as well as the interest of
ensuring that the parameters within which the substance is
negotiated is within the Law of the Sea framework.
So -- leadership. U.S. leadership. Our leadership across
the board is subject to question if we don't seriously explore
the opportunity, and if it truly exists, try to fix Part XI.
A second reason to engage is that only the folks at the table
are going to be able to influence the outcome on close questions
- 7 -
and the implementation of key provisions. There are two aspects
of this: one which relates to the negotiation of the fix to Part
XI itself; the other which relates to the implementation of the
remainder of the Convention. The importance of the first aspect
is obvious; the importance of the second is less so, but when one
recalls that the Convention is really a framework -- particularly
in certain key areas -- need for a seat at the table should be
apparent.
The latter point is an important factor motivating some close
allies. They note that once the Convention is in force it will
be the Parties thereto that shape the interpretation of the
Convention through implementation of key provisions. On this
score, when one considers the key issues relating to navigation
and over flight in straits and archipelagoes, the establishment
of archipelagic sealanes, the continuing debate over prior
notification or authorization of warship innocent passage in the
territorial sea, the functional jurisdiction of coastal States in
the various coastal zones -- all of these -- as they are debated
-- if we want to be heard we need to be there.
A third reason for reengagement -- and this may sound
inconsistent with what I said about the reality of the Law of the
Sea Convention -- is the fact that rules are important. Even
when a rule is not subscribed to by everyone, even when the rule
contains ambiguities, it is nonetheless important.
Rules shape the debate that arises out of any factual
controversy. A recent example -- four U.S. fishing vessels were
arrested by the Costa Rican government. These vessels were in
transit from Florida to California before heading for the Western
Pacific. They had no fishing gear on board. Costa Rican law
required a transit permit in such cases for fishing vessels in
transit through the Costa Rican EEZ. This law and arrest were
inconsistent with our view on the Law of the Sea, but Costa
Rica's view was different. But the debate started with the 1982
Convention. The problem ultimately was resolved. Can you
imagine, however, if we had started the debate without the common
ground of the 1982 Convention.
Rules provide a basis for concerted action. I remember
military operations in the late 1970s where our allies recognized
12-mile territorial seas and we did not. It proved impossible to
write contingency rules of engagement even with our friends.
There was no common foundation. No such problem occurred in the
Persian Gulf war. The 1982 Convention was the understood
framework for allied cooperation and was, indeed, the basis upon
which other States of the region acted.
Third, rules of ocean use protect the sovereignty and
independence of coastal States. The rules mean that others do
not need to be concerned about the government of the country that
- 8 -
controls the land territory. If the rules are respected, the
ocean user need not try to control decision-making in the land
territory. Everyone wins in this situation. This is indeed what
the Law of the Sea is really about.
In closing, I would like to thank the Center for its
initiative for holding this Conference.
Perhaps today more than ever before an opportunity exists to
create a widely acceptable Law of the Sea Convention. The
Administration is mindful of the fact and is actively engaged in
a review of the issue to determine the course it wishes to take.
Thank you.
262 COMMON ENDEAVOURS
MANAGING THE COMMONS 263
I. OCEANS: THE BALANCE OF LIFE
'The world's environmental problems are greater than the sum of those
In the Earth's wheel of life, the oceans provide the balance.¹ Covering
in each country. Certainly, they can no longer be dealt with purely on a
over 70 per cent of the planet's surface, they play a critical role in
nation-state basis. The World Commission on Environment and De-
maintaining its life-support systems, in moderating its climate, and
velopment must strike at this fundamental problem by recommending
in sustaining animals and plants, including minute, oxygen-producing
specific ways for countries to co-operate to surmount sovereignty, to
phytoplankton. They provide protein, transportation, energy, em-
embrace international instruments in order to deal with global threats.
ployment, recreation, and other economic, social, and cultural
The growing trend towards isolationism demonstrates that the current
activities.
rhythm of history is out of harmony with human aspirations, even with
The oceans also provide the ultimate sink for the by-products of
its chances for survival.
human activities. Huge, closed septic tanks, they receive wastes from
The challenge ahead is for us to transcend the self-interests of our
cities, farms, and industries via sewage outfalls, dumping from barges
respective nation-states so as to embrace a broader self-interest - the
and ships, coastal run-off, river discharge, and even atmospheric
survival of the human species in a threatened world."
transport. In the last few decades, the growth of the world economy,
Hon. Tom McMillan
the burgeoning demand for food and fuel, and accumulating dis-
Minister of Environment, Government of Canada
charges of wastes have begun to press against the bountiful limits of
WCED Public Hearing, Ottawa, 26-27 May 1986
the oceans.
The oceans are marked by a fundamental unity from which there
including improved frameworks to coordinate national action, is
is no escape. Interconnected cycles of energy, climate, marine living
needed for all areas.
resources, and human activities move through coastal waters, regional
seas, and the closed oceans. The effects of urban, industrial, and
The Balance Under Threat
agricultural growth are contained within no nation's Exclusive Eco-
nomic Zone; they pass through currents of water and air from nation
Today, the living resources of the sea are under threat from over-
to nation, and through complex food chains from species to species,
exploitation, pollution, and land-based development. Most major
distributing the burdens of development, if not the benefits, to both
familiar fish stocks throughout the waters over the continental shelves,
rich and poor.
which provide 95 per cent of the world's fish catch, are now threatened
Only the high seas outside of national jurisdiction are truly
by overfishing.
'commons'; but fish species, pollution, and other effects of economic
Other threats are more concentrated. The effects of pollution and
development do not respect these legal boundaries. Sound man-
land development are most severe in coastal waters and semi-enclosed
agement of the ocean commons will require management of land-
seas along the world's shore-lines. The use of coastal areas for
based activities as well. Five zones bear on this management: inland
settlement, industry, energy facilities, and recreation will accelerate,
areas, which affect the oceans mostly via rivers; coastal lands-
as will the upstream manipulation of estuarine river systems through
swamps, marshes, and so on-close to the sea, where human activities
dams or diversion for agriculture and municipal water supplies. These
can directly affect the adjacent waters; coastal waters-estuaries,
pressures have destroyed estuarine habitats as irrevocably as direct
lagoons, and shallow waters generally-where the effects of land-based
dredging, filling, or paving. Shore-lines and their resources will suffer
activities are dominant; offshore waters, out roughly to the edge of
ever increasing damage if current, busincss-as-usual approaches to
the continental shelf; and the high seas, largely beyond the 200-mile
policy, management, and institutions continue.
EEZs of coastal states' control.
Certain coastal and offshore waters are especially vulnerable to
Major fisheries are found mostly in offshore waters, while pollution
ecologically insensitive onshore development, to competitive over-
affecting them comes mostly from inland sources and is concentrated
fishing, and to pollution. The trends are of special concern in coastal
in coastal waters. Formal international management is essential in the
areas where pollution by domestic sewage, industrial wastes, and
areas beyond the EEZs, although greater international co-operation,
pesticide and fertilizer run-off may threaten not only human health
but also the development of fisheries.
264 COMMON ENDEAVOURS
MANAGING THE COMMONS 265
Even the high seas are beginning to show some signs of stress from
put an additional 35 per cent of the oceans' surface under national
the billions of tons of contaminants added each year. Sediments
control with regard to management of natural resources. It has also
brought to the oceans by great rivers such as the Amazon can be
provided an institutional setting that could lead to better management
traced for as much as 2,000 kilometres out to sea.2 Heavy metals
of these areas, given that single governments may be expected to
from coal-burning plants and some industrial processes also reach
manage more rationally resources over which they have sole control.
the oceans via the atmosphere. The amount of oil spilled annually from
However, this expectation ignores the realities of short-sighted po-
tankers now approaches 1.5 million tons.³ The marine environment,
litical and economic goals.
exposed to nuclear radiation from past nuclear weapons tests, is
An international ecosystem approach is required for the man-
receiving more exposure from the continuing disposal of low-level
agement of these resources for sustained use. Significant gains have
radioactive wastes.
been made in past decades, nationally and internationally, and many
New evidence of a possible rapid depletion of the ozone layer and
essential components have been put in place. But they do not add up
a consequent increase in ultraviolet radiation poses a threat not only
to a system that reflects the imperatives mentioned above. Where the
to human health but to ocean life. Some scientists believe that this
EEZs of several states come together in semi-enclosed or regional
radiation could kill sensitive phytoplankton and fish larvae floating
seas, integrated management requires varying degrees of international
near the ocean's surface, damaging ocean food chains and possibly
co-operation, such as joint monitoring and research on migratory
disrupting planetary support systems.4
species and measures to combat pollution and regulate actions whose
High concentrations of substances such as heavy metals, or-
effects reach across boundaries.
ganochlorines, and petroleum have been found on the oceans'
When it comes to the high seas beyond national jurisdiction,
surface. With continued accumulation, these could have complex and
international action is essential. The sum of the multiple conventions
long-lasting effects.5 The sea-floor is a region of complex physical,
and programmes now in place do not and cannot represent such a
chemical, and biological activity where microbial processes play a
regime. Even the separate UN programmes cannot easily be coord-
major role, but as yet serious damage is known to have occurred
inated, given the structure of the United Nations.⁶
only in very localized regions. Although these findings are encour-
The Commission believes that a number of actions are urgently
aging, given accelerating pressures and the inadequacy of present
needed to improve regimes for oceans management. Thus the Com-
data they provide no grounds for complacency.
mission proposes measures to:
strengthen capacity for national action, especially in developing
Oceans Management
countries;
Looking to the next century, the Commission is convinced that
improve fisheries management;
sustainable development, if not survival itself, depends on significant
reinforce co-operation in semi-enclosed and regional seas;
advances in the management of the oceans. Considerable changes
strengthen control of ocean disposal of hazardous and nuclear
wastes; and
will be required in our institutions and policies and more resources
advance the Law of the Sea.
will have to be committed to oceans management.
Three imperatives lie at the heart of the oceans management
question:
National Action
The underlying unity of the oceans requires effective global
Coastal governments should launch an urgent review of the legal and
management regimes.
institutional requirements for integrated management of their EEZs,
The shared resource characteristics of many regional seas make
and of their roles in arrangements for international co-operation.
forms of regional management mandatory.
This review should be undertaken within the framework of a clear
The major land-based threats to the oceans require effective
statement of national goals and priorities. Reducing overexploitation
national actions based on international co-operation.
of fisheries in coastal and offshore waters might be one such goal.
Mutual dependence has increased in recent years. The Law of the
The rapid clean-up of municipal and industrial pollution discharging
Sea Convention, with the establishment of the 200-mile EEZs, has
into critical marine habitats could be another. Others might include
266 COMMON ENDEAVOURS
MANAGING THE COMMONS
267
strengthening national research and management capacity, and pro-
TABLE 10.1
ducing an inventory of coastal and marine resources.
Given the increased pressures on coastal and marine resources
World Fish Catch in Major Fisheries, 1979-84 (thousand tons)
projected through the year 2000, all coastal states should have a
Fishery
1979
1980
1981
complete inventory of these assets. Drawing on senior experts from
1982
1983
1984
national and international agencies, nations could deploy the latest
N. Atlantic
14,667
14,676
14,489
13,597
13,891
13,940
satellite mapping and other techniques to put together an inventory
N. Pacific
20,303
20,733
21,908
22,603
23,666
26,416
Cent. Atlantic
of these resources and then monitor changes in them.
6,064
6,867
6,833
7,239
7,210
7,164
Cent. Pacific
7,536
7,910
Many developing countries will require assistance to strengthen
8,478
8,175
7,848
8,531
Indian Ocean
3,541
3,693
3,728
3,852
4,061
4,362
their legal and institutional frameworks needed for integrated man-
South Atlantic
4,420
3,895
4,037
4,340
4,314
3,957
agement of coastal resources. Many small island and maritime
South Pacific
7,242
6,619
7,240
8,328
6,724
8,684
Inland
developing countries lack the economic or military means to prevent
7,240
7,603
8,138
8,455
9,131
9,716
the exploitation of their coastal resources or the pollution of their
Total*
71,014
71,996
74,850
76,590
76,846
82,770
waters by powerful countries or companies. This has become a major
Developed
37,143
38,234
38,890
39,265
39,991
42,412
concern in the Pacific in particular, and threatens the political stability
Developing
33,871
33,758
35,961
37,326
36,855
40,358
of the region. International development banks and development
assistance agencies should establish programmes to support the
Developing
development of this institutional capacity.
countries' catch
as per cent of
world total
47.7
46.9
48.0
48.7
48.0
48.8
Fisheries Management
World fisheries have been expanding since the Second World War,
*
Columns do not add to totals due to rounding.
with the global catch rising at a steady 6-7 per cent annually from
Source: Based on data in FAO, Yearbooks of Fishery Statistics (Rome: 1979-84).
20 million to 65 million tons between 1950 and 1969. But after 1970,
as more and more stocks were depleted, the average annual growth
can receive better scientific advice. Greater support for such work is
in catches fell to only about 1 per cent. (See Table 10.1.) With
urgently needed, and this support must include additional assistance
conventional management practices, the growth era in fisheries is
to developing countries in increasing their research capacity and their
over. Even assuming restored productivity in now depleted stocks,
knowledge of their own resources.
and an increased harvest from underutilized fisheries, FAO sees only
One factor leading to the establishment of extended EEZs was the
a gradual increase in catches, perhaps rising from current levels of
concern of coastal states, both industrialized and developing, over
over 80 million tons to about 100 million. This does not augur well
the depletion of fisheries off their coasts. A large number of con-
for future food security, especially in low-income countries where fish
ventions had been established covering most major fisheries, but they
are a principal source of animal protein and where millions secure
proved inadequate in most cases. Participating countries were in
their livelihoods from fisheries activities.⁷
general unable to overcome the difficulties of allocating shares to
Overexploitation threatens many stocks as economic resources.
limited common resources. Improved management was seen as an
Several of the world's largest fisheries-the Peruvian anchoveta,
urgent need, and open access was perceived as the main obstacle to
several North Atlantic herring stocks, and the Californian sardine-
it.
have collapsed following periods of heavy fishing. In some of the
The advent of extended EEZs under the Law of the Sea Convention
areas affected by these collapses, and in other rich fisheries such as
was expected to solve or at least alleviate the problem. Coastal states
the Gulf of Thailand and off West Africa, heavy fishing has been
were required to introduce effective conservation and management
followed by marked changes in species composition.8 The reasons for
of the living resources in their EEZs. They could also control the
these changes are not well understood, and more research is needed
activities of foreign fishermen and develop their own fisheries.
into the responses of marine resources to exploitation so that managers
Industrial countries have been much more successful in doing this
272 COMMON ENDEAVOURS
MANAGING THE COMMONS 273
wastes at sea or in the sea-bed. Moreover, it would seem prudent to
anticipate continuing opposition to sea dumping and to actively
ambitious attempt ever to provide an internationally agreed regime for
pursue the siting and development of environmentally safe, land-based
the management of the oceans. The resulting Convention represents a
methods of disposal.
major step towards an integrated management regime for the oceans.
Several other conventions regulate the dumping of wastes in the
It has already encouraged national and international action to manage
the oceans. 17
north-east Atlantic and North Sea, the Mediterranean Sea, and the
Baltic Sea. Most of the Regional Seas Conventions also include a
The Convention reconciled widely divergent interests of states, and
general provision calling on contracting parties to take all appropriate
established the basis for a new equity in the use of the oceans and
measures to prevent and reduce pollution caused by dumping.
their resources. It confirmed that coastal states are empowered to
Land-based sources of nuclear waste have become significant in
exercise sovereignty over their territorial sea, sea-bed and subsoil,
the North Sea, where high levels of radioactivity have been found in
and the superjacent air space, up to a distance of 12 nautical miles.
fish, and could threaten other seas. 16 The Convention for the
It redefined the rights of coastal states concerning the continental
Prevention of Marine Pollution from Land-Based Sources (Paris
shelf. It established Exclusive Economic Zones of up to 200 nautical
Convention) was ratified in 1978 by eight states and the European
miles within which the coastal state may exercise sovereign rights
Economic Community. While it has achieved some international
with regard to the management of national resources, living and
co-operation, its silence on nuclear plants and its acceptance of the
non-living, in the waters, sea-bed, and subsoil.
'best available technology' principle in determining permitted levels
The Convention removed 35 per cent of the oceans as a source of
of radioactive discharges clearly needs to be reviewed.
growing conflict between states. It stipulates that coastal states must
The Law of the Sea Convention requires states to establish national
ensure that the living resources of the EEZs are not endangered by
laws and regulations to 'prevent, reduce and control pollution of the
overexploitation. Thus, not only do governments now have the legal
marine environment from dumping'. It also requires express prior
power and the self-interest to apply sound principles of resource
approval by the coastal state for dumping in the territorial sea, in
management within this area, but they have an obligation to do so.
the EEZs, and onto the continental shelf. The legislative history of
The Convention calls for regional co-operation in formulating and
this Article indicates that coastal states have not only the right to act
implementing conservation and management strategies for living
but a duty to do so. States also have an obligation under the Law of
marine resources, including co-operation in the exchange of scientific
the Sea to ensure that their activities do not injure the health and
information, the conservation and development of stocks, and the
environment of neighbouring states and the commons.
optimum use of highly migratory species.
The Commission encourages the London Dumping Convention to
Similarly, coastal states now have a clear interest in the sound
reaffirm the rights and responsibilities of states to control and regulate
management of the continental shelf and in the prevention of pollution
dumping within the 200-mile EEZ. It is urgent that they do so, as
from land- and sea-based activities. Under the Convention, coastal
oceans and food chains respect no boundaries.
states may adopt laws and regulations for their EEZs compatible
Moreover, all states should undertake to report releases of toxic
vessels. with international rules and standards to combat pollution from
and radioactive substances from land-based sources into any body
of water to the appropriate Convention Secretariat so that they may
The Convention also defines the waters, sea-bed, and subsoil
begin to report on the aggregate releases into various seas. Competent
beyond the limits of national jurisdiction, and recognizes this as
authorities must be designated to keep records of the nature and
international. Over 45 per cent of the planet's surface, this sea-bed
quantities of wastes dumped. Beyond that, regional institutions should
area and its resources are declared to be the 'common heritage of
forward this information to the London Dumping Convention
mankind', a concept that represents a milestone in the realm of
secretariat.
international co-operation. The Convention would bring all mining
activities in the sea-bed under the control of an International Seabed
The Law of the Sea
Authority.
The United Nations Conference on the Law of the Sea was the most
By early 1987, the Convention had been signed by 159 nations,
and 32 countries had ratified it. However, a small number of significant
MANAGING THE COMMONS 275
274 COMMON ENDEAVOURS
states had indicated that they were unlikely to ratify it. 18 The reasons
for this rest largely with the regime proposed to manage the common
We need a kind of new earth/space monitoring system. I think that it
goes farther than simply an earth environmental system. It's a combined
sea-bed.
Despite this, many of the Convention's other provisions have been
earth/space monitoring system, a new agency that would have the re-
broadly accepted and have already entered into international law and
sources to be able to monitor, report, and recommend in a very sys-
practice in various ways. This process should be encouraged, especially
tematic way on the earth/space interaction that is so fundamental to a
as regards those provisions that relate to the environment. This
total ecological view of the biosphere."
Commission believes that the Convention should be ratified by the
Maxwell Cohen
major technological powers and come into force. Indeed, the most
University of Ottawa
WCED Public Hearing, Ottawa, 26-27 May 1986
significant initial action that nations can take in the interests of the
oceans' threatened life-support system is to ratify the Law of the Sea
Convention.
Satellites also played a key scientific role after the 1986 discovery
of a 'hole' in the ozone layer over Antarctica. When ground-based
II. SPACE: A KEY TO PLANETARY MANAGEMENT
observers noted this phenomenon, archived satellite data were ex-
amined and provided a record of seasonal ozone fluctuation extending
Outer space can play a vital role in ensuring the continued habitability
back nearly a decade. 20 And scientists have been able to follow closely
of the Earth, largely through space technology to monitor the vital
the unfolding of the drought in the Sahel region of Africa in the
signs of the planet and aid humans in protecting its health. According
1980s. Satellite-generated maps correlating rainfall patterns and
to the 1967 Outer Space Treaty, outer space, including the moon and
biomass have served as a tool in understanding droughts and helped
other celestial bodies, is not subject to national appropriation by
in the targeting of relief aid.
claim of sovereignty, by means of use of occupation, or by any other
Recently, an international and interdisciplinary group of scientists
means. The UN Committee on the Peaceful Uses of Outer Space has
has proposed a major new initiative-the International Geosphere-
been labouring to see that these ideals remain on the agenda. This
Biosphere Programme-to be co-ordinated through the International
Commission, in view of these developments, considers space as a
Council of Scientific Unions. It would investigate the biosphere using
global commons and part of the common heritage of mankind.
many technologies, including satellites. This proposal seemed in 1987
The future of the space as a resource will depend not so much on
to be gaining momentum; it was already influencing the budget
technology as on the slow and difficult struggle to create sound
decisions of several nations on allocations for future satellite launches
international institutions to manage this resource. It will depend most
and is increasing coordination between existing efforts.
of all upon humanity's ability to prevent an arms race in space.
The primary frustration about this wealth of data is that the
information is dispersed among governments and institutions, rather
Remote Sensing from Space
than being pooled. UNEP's Global Environment Monitoring System
is a modest effort to pool space data relevant to the Earth's
If humanity is going to respond effectively to the consequences of
habitability. It should be strengthened. But most such efforts are
changes human activity has induced-the build-up of atmospheric
underfunded, undercoordinated, and inadequate to the tasks.
carbon dioxide, depletion of stratospheric ozone, acid precipitation,
The primary responsibility for action rests initially with national
and tropical forest destruction-better data on the Earth's natural
governments, co-operating to pool, store, and exchange data. In time,
systems will be essential.
international efforts might be funded through some direct global
Today several dozen satellites contribute to the accumulation of
revenue source or through contributions from individual nations.
new knowledge about the Earth's systems-for example, about the
(See Chapter 12.)
spread of volcanic gases, enabling scientists for the first time to
describe the specific links between a major natural disturbance of the
The Geosynchronous Orbit
upper atmosphere and changes in the weather thousands of miles
away.
19
From an economic point of view, the most valuable part of the
(151)
State of the World 1992
shift through an extended program of
commodity-intensive economy they are
study. Possible variations include seed
compelled to seck full-time employ-
10
money and other assistance to help start
ment. Yet a key component of sustaina-
a small business, or partial income sup-
bility-the production of more-durable
plements for those who seck less well
goods-provides a crucial underpinning
paid work. The annual cost for I million
for such a move. When goods do not
workers might come to $40 billion.
wear out rapidly, they need not be re-
Not all of this would be a net addition
placed as frequently. More-durable
Strengthening Global
to public expenditures, however, be-
goods are likely to have higher purchase
cause funds currently devoted to unem-
prices than throwaways, but over time
Environmental Governance
ployment compensation and other as-
people will spend less on furniture, ap-
sistance programs could be marshaled
pliances, and clothing. Hence there is
for this purpose-and because a pro-
less need for paid work to achieve a
gram that enables laid-off workers to re-
given material standard of living.60
Hilary F. French
join the economy as active participants
A more sustainable economy promises
also adds to tax revenues. A variety of
great environmental and economic ben-
benefits have been proposed in the U.S.
efits, though the transition will not be
Congress for displaced coal miners and
without pain. It will produce many los-
loggers, but none of the relief measures
ers, particularly among extractive and
have been linked to the tax, investment,
heavy industries. But the evidence is
and research and development policies
strong that the winners will outnumber
needed to bring about the shift toward
them: more jobs will be created in en-
sustainability.58
ergy efficiency, recycling, and public
The past year has been marked by un-
on the Human Environment, will review
Considering that large numbers of
transportation than will be lost in the oil
paralleled activity in environmental di-
all the major environmental and devel-
people are already out of work and more
and coal industries, car manufacturing,
plomacy. Unlike the headline-grabbing
opment challenges facing the world
are seeking work for the first time every
and waste disposal. In fact, automation is
proclamations of ecological concern
community and adopt an action plan on
year. the challenge is not only to create
a much more important cause of job loss
heard from world leaders a few years
sustainable development.¹
as many rewarding jobs as possible but
than environmental protection is. And
back, recent efforts have been accompa-
International cooperation on environ-
to share available work more equitably.
while extractive industries tend to be
nied by little fanfare. But in negotiations
mental protection is of course not new:
European trade unions have long cham-
geographically concentrated, jobs aris-
around the globe-from Geneva to
as far back as 1872 Switzerland made an
pioned worktime reductions as a means
ing out of energy conservation, renew-
Nairobi to Washington-diplomats have
effort to establish a European organiza-
of providing employment for more peo-
ables, and recycling are likely to be more
started the hard work of forging a global
tion to protect the nesting sites of migra-
ple. This could be accomplished by
evenly spread.
consensus on the pressing environmen-
tory birds. But the scale of international
shortening hours, cutting the number of
The overall changes-for industry and
tal issues of our time.
negotiations is growing rapidly. More
workdays per week, extending vacation
for the world-will be profound. Shifting
Negotiations are now under way on
than 150 environmental treaties have
time, lowering the retirement age, offer-
to an environmentally sustainable society
two major treaties-one to address the
been adopted, the majority since 1970.
ing parental leave and sabbaticals for
is a task equal in its scope, complexity,
accelerating loss of the earth's biological
They include accords on diverse sub-
continued education, or experimenting
and ultimate importance to the profound
diversity and the other to combat global
jects-including acid rain, ocean pollu-
with job-sharing arrangements. Individ-
transformations wrought by the Indus-
warming. Discussions have also begun
tion, endangered species protection,
ual countries vary widely in the length of
trial Revolution. What is different now is
on a statement of principles covering
hazardous wastes export, and the pres-
average annual worktime and therefore
that humanity already has at its disposal
forest management that may lay the
ervation of Antarctica. As the current
their potential for reductions.⁵
many of the tools and much of the knowl-
groundwork for an actual treaty. Mean-
Aurry of diplomatic activity indicates, en-
Although many people prefer to
edge required to make the transition. It
while, diplomats are busily preparing for
vironmental issues have in the space of a
spend less time in the factory or at the
still needs to gather the vision and politi-
the United Nations Conference on Envi-
few years become a central feature of
office, working fewer hours is often not
cal will to embrace the policies that can
ronment and Development (UNCED),
international relations. (See Table
a practical option for them, because in a
save the planet.
dubbed the Earth Summit, to be held in
10-1.)2
Brazil in June 1992. This meeting, which
At the institutional level, the United
commemorates the twentieth anniver-
Nations Environment Programme
sary of the Stockholm U.N. Conference
(UNEP). created at the 1972 conference
(156)
State of the World 1992
Strengthening Global Environmental Governance
(157)
Table 10-1. Selected Environmental Agreements
overall state of the global environment
institutions by governments are best lim-
continues to deteriorate at an alarming
ited to those that absolutely require co-
Agreement
Description
rate. (See Chapter 1.) Existing treaties
operation for resolution. Explained
Convention on
Adopted in Geneva in 1979, after negotiations under the auspices of
are often not adequate to the tasks they
Maurice Strong, Secretary-General of
the U.N. Economic Commission for Europe. Strengthened joint
are charged with. For some critical envi-
Long-Range
UNCED, in a 1987 speech: "The prime
Transboundary
research and monitoring programs. A July 1985 sulfur dioxide
ronmental threats, no treaty exists at all.
organizing principle for any system of
Air Pollution
protocol calls for a 30-percent reduction in emissions or their
UNEP, though it has done a laudable job
governance should be that responsibility
transboundary flows from 1980 levels by 1993. A nitrogen oxides
of fulfilling its limited mandate, does not
for every activity should be vested in the
protocol in November 1988 calls for a freeze on emissions at 1987
in its current form have the institutional
level closest to the people affected at
levels in 1994, as well as further discussions beginning in 1996
stature to marshall the needed quantum
which it can be managed most effec-
aimed at reductions. A volatile organic compounds protocol may
leap in cooperation.
tively." He suggests that by this criteria
have been ready for signing by the end of 1991.
If the world is to effectively address
the number of issues dealt with at the
the pressing environmental problems on
global level would be far more limited
London
Adopted in 1972. Negotiations convened by the U.N. International
the global agenda, stronger interna-
than those on the currently overcrowded
Dumping
Maritime Organization: 66 countries are now party to it. Originally
tional governance will be needed. Coun-
United Nations agenda.⁵
Convention
outlawed dumping radioactive and other wastes deemed "highly
tries find themselves simply unable to
Though economic and environmental
dangerous" into the ocean. A recent amendment outlaws dumping
take effective national action on prob-
interdependence continue to accelerate,
of all forms of industrial waste by 1995; a ban on ocean
lems that transcend boundaries. No mat-
international institutional development
incineration of wastes is to take effect by the end of 1994.
ter how much nations try to protest,
is not keeping pace. Existing treaties and
there is no avoiding the fact that national
institutions represent an embryonic at-
Convention on
Adopted in 1973; 108 parties. Aims to protect endangered species by
sovereignty-the ability of states to con-
tempt to create the international mech-
International Trade
restricting their import and export and trade in products made
trol events within their territory-is un-
anisms that are required. Governments
from them. It prohibits entirely trade in species threatened with
dermined in a world where borders are
in Endangered
must use them as a springboard for the
Species of Wild
extinction, as in the ban on the ivory trade imposed in 1990.
routinely breached by pollution, finan-
more fundamental governance changes
Flora and Fauna
cial flows, refugees, and other forces.
that are needed to set the world on a
Environmental decisions made in one
sustainable course.
Commercial
A 1982 amendment to the 1946 International Convention for the
country also influence others through
Regulation of Whaling negotiated by the International Whaling
international trade.⁴
Whaling Ban
Commission. Bans all commercial whaling.
Stronger international governance
will evolve both from better utilization of
Basel Convention
Adopted in March 1989. Treaty calls for international adherence to
existing mechanisms and, over time,
GUARDING THE COMMONS
"prior informed consent" for hazardous waste export. It has been
through the development of new ones.
signed by 53 countries, but ratified by only 13; 20 ratifications are
But strengthening international institu-
In his seminal 1968 essay "The Tragedy
needed before it will be legally binding.
tions does not necessarily imply the cre-
of the Commons," ecologist Garrett
ation of one global super agency.
Hardin compared the international envi-
Antarctica
Signed in 1959 by 12 nations. Signatories agreed to put aside
Rather, innovations are likely to arise
ronmental predicament with the degra-
conflicting national claims to the continent and jointly manage it
from disparate sources. For instance, the
Treaty
dation of medieval common grazing
"in the interests of all mankind." A 1991 agreement prohibits all
small offices charged with implementing
lands-individual herders pursued
mining exploration and development for 50 years and protects
a given treaty often forge valuable new
short-term economic gains to the detri-
wildlife, regulates waste disposal and marine pollution, and provides
governing techniques. Nongovernmen-
ment of everyone's long-term future,
for increased scientific monitoring of the continent.
tal organizations (NGOs) are also at the
knowing that one individual's efforts to
forefront of international mobilizing:
conserve the resource base would be
SOURCE: Worldwatch Institute, based on sources documented in endnote 2.
several, most prominently Friends of the
overwhelmed by the actions of others.
in Stockholm, has worked to catalyze
ternational Fund for Agricultural
Earth, Greenpeace, and the World Wide
Concluded Hardin: "Ruin is the destina-
and coordinate environmental action
Development, and the U.N. Population
Fund for Nature, are far-flung organiza-
tion toward which all men rush, each
within the United Nations. Many other
Fund are also involved to some degree
tions responsive to global constituencies
pursuing his interest in a society which
U.N. agencies and international institu-
in programs promoting sustainable de-
rather than to parochial national inter-
believes in the freedom of the commons.
tions, including the United Nations De-
velopment.3
ests.
Freedom in a commons brings ruin to us
velopment Programme (UNDP), the In-
But despite limited advances, the
The tasks delegated to international
all."6
(158)
State of the World 1992
Strengthening Global Environmental Governance
(159)
The world is now facing for the first
with just six countries (Australia, In-
humanity under the Antarctica Treaty of
to the holdouts so that the convention
time the challenge of devising interna-
donesia, Japan, New Zealand, the Soviet
1959.¹¹
can be ratified. 14
tional rules to govern the global com-
Union, and the United States) holding
The Law of the Sea convention also
Despite the treaty not being officially
mons. One of the most difficult tasks is
claim to a third of the total. The Law of
called for the creation of an Interna-
implemented, the seemingly endless
defining what parts of the planet fall into
the Sea has for this reason been called
tional Seabed Authority that would
Law of the Sea negotiations were not in
this category: countries are understand-
the "greatest territorial grab in history"
cooperatively mine the deep seabed for
vain. Many treaty provisions are being
ably reluctantoro cede sovereignty on
by some critics. Seen in a more positive
minerals if it became economically at-
observed as customary international law
what they have long considered national
light, however, the 200-mile zone was
tractive to do so. As part of the bargain,
around the world, with positive effects
resources. Among the hundreds of trea-
considered essential to conserving and
industrial countries agreed to facilitate
on fish stocks, ocean pollution, and free-
ties that regulate portions of the global
managing fisheries that would otherwise
the transfer of some of the needed min-
dom of the seas. And the treaty estab-
commons, two ambitious efforts stand
be subject to uncontrolled foreign and
ing technology. The treaty provided for
lished some useful precedents for future
out-the Law of the Sea adopted in 1982
domestic harvesting.8
a licensing system for private mining ac-
environmental diplomacy. The principle
and the Montreal Protocol on ozone de-
In return for recognizing their territo-
tivities, with a share of the revenues to
that the ocean is the "common heritage
pletion, completed in 1987 and revised
rial and economic rights, the treaty obli-
go to developing countries in recogni-
of mankind" may be relevant to other
in 1990. Both offer important lessons for
gated coastal nations to protect the ma-
tion of their stake in the global re-
efforts to manage shared resources and
rine environments in areas under their
future negotiations.
source.¹¹
territories, and the provision of U.N. fi-
The Law of the Sea treaty was the
control. Those ratifying the convention
At the time, the seabed provisions
nancial and technical assistance to help
product of more than a decade of often
are expected to participate in treaties
were hailed by many observers as a his-
developing countries protect coastal
contentious negotiations. Coastal na-
aimed at controlling diverse sources of
toric jump in international cooperation.
areas established the need to link obliga-
ocean pollution including discharges
tions had been laying ever growing
They were seen by developing countries
tions with the means to meet them,
and runoff from cities and agriculture,
claims to their territorial waters in order
as a means to move toward a "New Inter-
though the amounts provided are far
ocean dumping of wastes, releases from
to exploit energy reserves, mineral re-
national Economic Order" that would
from adequate.¹⁵
boats, oil exploration and drilling, min-
sources, and fisheries. This competed
lift them out of poverty through manda-
One aspect of the Law of the Sea that
ing, and air pollution deposited in the
with other interests vital to some coun-
tory technological and financial trans-
will only be put in practice if the treaty
ocean.⁹
tries, including the traditional freedom
fers. But the seabed provisions proved a
enters into force is its pathbreaking dis-
The Law of the Sea treaty provided a
of the seas for navigation and the need
major roadblock to worldwide accept-
pute settlement provisions. Countries
foundation for eventually negotiating
ance of the treaty. Several industrial
to cooperate in controlling pollution
are offered a range of options for set-
separate agreements under the auspices
countries refused to sign or ratify the
and overfishing.⁷
tling conflicts. In some instances, na-
of the International Maritime Organiza-
convention unless changes were made in
tional courts have jurisdiction but are re-
tion and UNEP. To date, international
these sections. The position of the U.S.
quired to be open to foreign claims. In
treaties cover ocean dumping, vessel dis-
government was the biggest obstacle.
other cases, international procedures
The Law of the Sea treaty was the
charges, transportation of oil and haz-
Rather than trying to negotiate changes
apply, ranging from informal consulta-
product of more than a decade of
ardous materials, and emergency re-
that would make the treaty acceptable,
often contentious negotiations.
sponse to accidents. Four regional
tion through binding judicial proceed-
the Reagan administration came to office
ings. A Tribunal of the Law of the Sea to
agreements cover land-based sources of
with an inflexible stance that antago-
be set up in Hamburg would be the op-
pollution such as sewage and agricul-
nized many other countries and elimi-
tural runoff. In addition, UNEP has de-
tion of last resort. In a special Seabed
nated any possibility of consensus. 18
The final bargain preserved freedom
Chamber, corporations and individuals
veloped an extensive regional seas pro-
Nearly 10 years after its completion,
of navigation subject to some limited
would have standing. The distinctive
gram that encourages the negotiation of
the treaty has still not entered into force
controls even within nation's territorial
feature of the system is that it is manda-
legally binding conventions for these
because only 50 of the needed 60 coun-
waters-defined as those within 12 miles
shared resources.¹⁰
tory: parties would be required to accept
tries have ratified it. Ironically, the sea-
the judgment of this international court,
of their shores. Coastal nations were
Another major element of the Law of
bed mining provisions have proved to be
granted the right to manage all eco-
rather than just having the option of re-
the Sea bargain was an agreement to re-
something of a period piece. No deep
ferring disputes to il.16
nomic activities such as fishing and oil
gard the high seas-outside the 200-
seabed mining is likely to take place for
Unlike the somewhat tarnished image
and mineral development within a 200-
mile territorial limit-as the "common
several decades, at least, and the ocean
of the Law of the Sea, the treaty to pro-
mile "exclusive economic zone." As a re-
heritage of mankind." The only similarly
floor is deemed unlikely to ever become
tect the ozone layer is widely hailed as a
sult, coastal and island countries in the-
recognized piece of the earth is the con-
the pot of gold once envisioned. Efforts
landmark in environmental diplomacy.
ory now control access to the resources
tinent of Antarctica, which 12 countries
at the moment are focused on reaching
Evidence mounted in the early eighties
contained in 40 percent of the ocean,
agreed to safeguard for the benefit of all
a compromise that would be acceptable
that the ozone layer-which protects the
(160)
State of the World 1992
Strengthening Global Environmental Governance
(161)
earth from harmful ultraviolet radiation
year after the Montreal Protocol was
though as of November 1991 India had
northern hemisphere has spurred a call
that can cause skin cancer, damage ma-
adopted-on January 1. 1989-it had re-
not.2¹
to revise the treaty once more. Possible
rine life, and lower agricultural yields-
ceived enough ratifications to enter into
In Ozone Diplomacy, U.S. Chief Negoti-
steps include accelerating the phaseout
was being depleted by reactions high in
force.¹⁹
ator Richard Eliot Benedick distills sev-
of CFCs and more tightly controlling
the atmosphere involving chlorine- and
One strength of the protocol was its
eral "elements of success" from the un-
some of the proposed CFC substitutes
bromine-containing industrial chemicals
provision for further updating as new.
usually swift ozone saga. He underscores
that, though less damaging, have them-
such as chlore Buorocarbons (CFCs) and
scientific information became available.
the important role played by the interna-
selves been identified as ozone deplet-
halons. As a first international step in
The ink was barely dry on the treaty
tional scientific community, UNEP. and
ers. Parties to the treaty are still consid-
responding to the threat, 20 nations, in-
when worrisome new evidence did in-
international NGOs such as Friends of
ering how to ensure that countries
cluding most of the primary CFC-pro-
decd emerge, confirming that ozone de-
the Earth. They were able to form a con-
honor their commitments, though they
ducing countries, signed a convention in
pletion was already taking place over the
sensus for action that transcended paro-
have decided that assistance from the
Vienna in March 1985. It created a
heavily populated northern hemisphere.
chial national interests. Early U.S. lead-
ozone fund depends on good-faith ef-
mechanism for cooperation on research
Furthermore, the new data suggested
ership was another important factor.
forts to comply with the treaty's terms.
and data gathering and included a politi-
that the atmospheric models underlying
According to Benedick, the United
cal commitment to take action at a later
the Montreal Protocol had actually
States consistently urged the reluctant
date.¹⁷
underestimated the pace of depletion-
Europeans, Japanese, and Soviets to act.
In September 1987, after more alarm-
dangerous amounts of ozone loss would
He attributes this to an informed and
ing scientific evidence had been gath-
occur even if it were fully implemented
vocal public, which had already suc-
FORGING STRONGER
ered, the Montreal Protocol on Sub-
by all nations.20
ceeded in forcing the passage of the
strictest national ozone protection legis-
TREATIES
stances that Deplete the Ozone Layer
lation in the world. American industry,
was signed. It called for emissions of
CFCs in industrial countries to be cut in
The single most important ingredi-
in turn, came to favor international regu-
Weighed against the magnitude of the
ent in the ozone treaty's success
lation over national laws in order to level
environmental problems facing the
half by 1998, and for halon emissions to
was the creation of the fund to help
the global playing field."
world, the experience to date with global
be frozen at 1986 levels by 1992. Devel-
Perhaps the single most important in-
environmental governance is not en-
oping countries were granted deferrals
developing countries.
gredient in the treaty's success was the
couraging. Treaties often take a long
to compensate for their low levels of
creation of the fund to help developing
time to negotiate, ratify, and enter into
production. The treaty also restricted
countries make the transition to CFC
force. The need to accommodate the di-
the purchase of CFCs from nonsignato-
Faced with this disturbing informa-
substitutes-a lesson that can be applied
verse opinions and conditions of more
ries to prevent shifts of production in
tion, the parties to the protocol decided
to treaties on biodiversity and climate
than 100 nations can lead to a least com-
order to escape regulation. The U.S. En-
to return to the negotiating table. After
and to the Earth Summit. Key develop-
mon denominator effect, in which the
vironmental Protection Agency (EPA)
a series of meetings, 93 nations agreed
ing countries would not have supported
treaty reflects the desires of the most re-
estimated that the emissions reductions
in June 1990 to stop using CFCs alto-
the treaty had its call for technical and
luctant party to the negotiations. And
called for by the protocol would prevent
gether by 2000 and to extend the treaty's
financial assistance not been backed up
even the relatively weak treaties now in
1.2 million cataract cases around the
provisions to several previously un-
in this way. Growing CFC use in nonsig-
force rarely include effective means of
world, 137 million cases of skin cancer,
regulated ozone-depleting chemicals.
natory nations could then have over-
ensuring that countries meet their obli-
and 27 million skin cancer deaths-a sig-
Developing countries, led by India and
whelmed reductions by treaty signers.
gations.
nificant achievement by any measure.¹
China, argued forcefully that it was un-
Unfortunately, the fund is off to a slow
The treatymaking process can be im-
In the world of international diplo-
fair of industrial countries to expect the
start, with only $22 million of the $53
proved in a variety of ways. One is to rely
macy, which moves at a notoriously gla-
Third World to incur the costs of switch-
million pledged for 1991 having been
on "soft law"-declarations and action
cial pace, the ozone negotiations were
ing to CFC substitutes to solve a prob-
raised as of late September 1991, and no
plans that do not need to be formally
extraordinarily speedy. In little more
lem they had little role in creating. After
projects under way yet.
ratified and are not legally binding but
than two years the world community had
intensive bargaining and a last-minute
Though the ozone agreement is a pin-
that help create an international consen-
moved from the commitment-free
policy reversal by the United States, par-
nacle in international environmental di-
sus and lay the groundwork for the ne-
Vienna Convention to a treaty binding
ticipants agreed to establish a fund of up
plomacy, the world community cannot
gotiation of binding treaties later. This
countries to a system of international
to $240 million to help developing coun-
afford to become complacent. Indeed,
approach has been used successfully in
regulation that would affect powerful
tries purchase CFC substitutes. China
new scientific information released in
many areas, such as UNEP's regional
commercial interests and products
and several other developing countries
1991 showing depletion proceeding
seas program. The action plan that is to
widely used in everyday life. Just over a
subsequently ratified the convention, al-
twice as fast as expected over parts of the
emerge from the Earth Summit, known
(162)
State of the World 1992
Strengthening Global Environmental Governance
(163)
as Agenda 21, falls into this category.25
grandchildren will write the narra-
make a stronger agreement possible.
helped create the political will for an
If a binding treaty is deemed the best
tive."27
Annexes, for example, can be revised
acid rain agreement. In the global warm-
route, a variety of models exist. Among
In addition, segmenting a problem
without having to ratify a whole new
ing talks, Germany spurred progress by
international relations specialists, the
into manageable chunks-as protocols
treaty. Instead, they are automatically
vowing to cut its carbon emissions 25
convention-protocol approach followed
do-can reduce the opportunities for
binding unless one party to the treaty
percent by 2005. This enabled the Euro-
in the ozone talks and the comprehen-
imaginative bargaining between coun-
expressly objects. The decision in 1990
pean Community (EC) to commit to sta-
sive strategy of the Law of the Sea
tries that might improve the ultimate
to phase CFCs out entirely required only
bilizing carbon emissions by the year
negotiations are often viewed as compet-
outcome. James Sebenius of Harvard
an adjustment to the Montreal Proto-
2000, and it put pressure on the United
ing archetypes. The traditional view
University's Kennedy School of Govern-
col's annex, which meant that it took ef-
States to follow suit.⁸¹
cites the relative success of the ozone
ment points out that in the climate
fect immediately with no need for a time-
On a more negative note, political sci-
treaty as a vindication of the step-by-step
negotiations a forested country like Bra-
consuming ratification process. Another
entists give the term "blocking coali-
negotiating method. Although early in-
zil might readily agree to an energy ef-
way to speed the process along is to re-
tion" to groups of nations that can pre-
ternational discussions on climate
ficiency protocol but refuse to sign one
quire that any country signing a treaty be
vent the creation of strong treaties
change focused on negotiation of a "Law
on forestry. Similarly, the United
bound to accept at least one future pro-
because they together account for the
of the Atmosphere" analogous to the
States-one of, the world's biggest en-
tocol. This makes it possible to agree to
preponderance of the problem. Some-
Law of the Sea, the proponents of the
ergy consumers-might be willing to
a treaty expeditiously while still holding
times, only one country-a "veto
ozone model triumphed and the discus-
commit to a forestry protocol but not an
the signatory to a concrete obligation.
state"-can scuttle an agreement. Re-
sions are now following the convention-
energy one. In this case, little progress
Use of such tools is being considered in
versals of position by this government
protocol model. To those frustrated
would have been made toward actually
the talks on global warming.
can then become critical. With the acid
with this incremental approach, Richard
solving the problem. However, if the two
An additional approach is to gradually
rain issue, for example, Germany was a
Benedick points out that "premature in-
protocols were part of one process, deals
delegate to an international agency the
veto state until a sudden change of heart
sistence on optimal solutions could have
could be struck that make it advanta-
power to set environmental standards.
in response to new scientific information
the unintended effect of bogging down
geous for each party to take some action
These can then be adapted in response
pumped life into long-stalled negotia-
the negotiations and prolonging the en-
in areas it would normally resist.
to changing conditions. Already, some
tions. In the bargaining over a ban on
tire process.
Sebenius argues for a compromise that
technical agencies such as the Interna-
commercial whaling, Japan long played
allows for imaginative bargaining with-
tional Telegraph Union have this power,
this role. In the global warming talks, the
out being so complex as to bring the
as does the International Labour Or-
United States wears the veto-state man-
It is important that treaties include
process to a standstill.
ganisation (ILO). The governing bodies
tle. The priority then becomes influenc-
provisions to facilitate updating
The success of the ozone negotiations
charged with implementing some envi-
ing the veto state or the members of the
should new scientific information
can be linked more to factors such as the
ronmental treaties, such as marine pollu-
blocking coalition, through interna-
development of profitable substitutes
tion accords and the Antarctica Treaty,
tional political persuasion and domestic
become available.
for CFCs and mounting scientific infor-
also have regulatory responsibilities. In
public pressure."
mation about the threat than to its con-
some cases, these bodies, which were set
vention-protocol approach. Similarly,
up to implement treaties and which are
But there is also a danger that letting
the last-minute accession to power of the
composed of representatives of member
countries sign a framework treaty with-
Reagan administration and the revolu-
states, can agree to set standards by two-
out requiring them to make any firm
tionary nature of some of the provisions
thirds majority rather than unanimous
IMPROVING COMPLIANCE
promises provides an easy political out
of the Law of the Sea probably account
vote. This helps overcome the least com-
that can delay progress toward actual re-
more for its failure to enter into force
mon denominator problem.³
Reaching an agreement is only half the
ductions. Notes Jim MacNeill, the for-
than the treaty's comprehensive nature,
However, the key to the success or fail-
battle. The next major challenge is see-
mer Secretary General of the World
so it would be unwise to dismiss it as an
ure of most treaties lies not in the nego-
ing that countries stand by their signa-
Commission on Environment and De-
altogether faulty model for future
tiation process but in the internal politi-
tures once a treaty is in effect. Unlike
velopment: "An empty framework con-
negotiations. Both experiences are rele-
cal dynamics of participating nations and
national governments, international
vention enables our leaders to cop out of
vant to the challenges ahead.
in public opinion. Countries or groups
agencies do not have police powers.
Whatever the model, it is important
of countries often set the ball rolling by
Most treaties do not even stipulate any
these discussions and gain credit for
doing so.
It is much like an author
that treaties include provisions to facili-
making voluntary pledges. An informal
sanctions. There is a paucity of data on
going to a publisher with a table of con-
tate updating should new scientific infor-
"30-percent club" of European coun-
compliance with existing environmental
tents, asking for an advance and getting
mation become available or political
tries that committed to a 30-percent re-
agreements, so nobody really knows to
it on the promise that his children or
conditions change in a way that would
duction in sulfur dioxide emissions
what extent signatories are keeping their