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Elisabeth Mann Borgese International Ocean Institute
The first session of the United Nations Informal Consultative Process on the Oceans and the Law of the Sea (UNICPOLOS) took place in New York on 30 May-2 June, 2000. The establishment of UNICPOLOS by the General Assembly must be considered a breakthrough in the process of building a global system of ocean governance. It is the only body in the United Nations system with a membership comprising the whole membership of the General Assembly and intergovernmental and regional organizations as well as the major groups of civil society, and with a mandate to consider the closely interrelated problems of ocean space as a whole. The consensus-building capability of the two co-chairpersons, Ambassador Neroni Slade of Samoa (developing countries) and Mr. Alan Simcock of the United Kingdom (developed countries), was remarkable, and the session's well-structured and detailed output will most certainly "facilitate the annual review by the General Assembly, in an effective and constructive manner, of developments in ocean affairs by considering the Secretary-General's report on oceans and the law of the sea and by suggesting particular issues to be considered by it, with an emphasis on identifying areas where coordination and cooperation at the intergovernmental and inter-agency levels should be enhanced."
I. MANAGEMENT, PREPARATORY PHASE
The International Ocean Institute (IOI) has been deeply involved with the establishment of UNICPOLOS and will follow and support its activities in every possible way. The Oceanic Circle, a Report to the Club of Rome, contains the following passage:
When, with the adoption and opening for signature of the Law of the Sea Convention, UNCLOS III came to its end in 1982, it was clear that there no longer existed a body in the UN system capable of considering the closely interrelated problems of ocean space as a whole. During the decade and a half that has passed since then, the need for such a body became ever more glaring. This problem arises from a lacuna in the Convention itself. In this respect, as in some others, the Convention is unfinished business, a process rather than a product. Unlike other treaties, which provide for regular meetings of states parties to review and, eventually, to revise such treaties, the Law of the Sea Convention severely limits the mandate of the meetings of states parties restricting it, after the establishment phase, to the periodic election of judges to the International Tribunal for the Law of the Sea, the approval of the expenses of that institution, and amendments to the Statute thereof. The mandate of the Assembly of the International Sea-Bed Authority, the only other body comprising all States parties, obviously is limited to seabed issues. Theoretically, there would be three ways of dealing with the problem: One could, perhaps first informally and later by amendment, broaden the mandate of the meetings of states parties, enabling them to review the implementation of the Convention and to formulate an integrated ocean policy. One could broaden the mandate of the Assembly of the International Sea-Bed Authority, considering that, on the one hand, seabed mining is not going to require very much time for the foreseeable future, while, on the other, "the problems of ocean space are closely interrelated and need to be considered as a whole." The General Assembly of the United Nations could be given the responsibility for examining, periodically, all the interrelated problems of ocean space and generating an integrated ocean policy. The first two alternatives would have the advantage of utilizing existing and otherwise under-utilized bodies for a function for which they would be well prepared. Both would have the disadvantage of a membership that is less than universal. It should also be noted that "closely interrelated problems of ocean space" arise also within other post-UNCED Convention regimes with a different membership. The first two alternatives would not be suitable for dealing with ocean-related interactions between various convention regimes, e.g., the overlaps between the Biodiversity and Climate Conventions and the Law of the Sea. As emphasized in the Report of the Secretary-General of the United Nations, it is only the General Assembly, with its universal membership that has the capability of dealing with all the closely interrelated problems of ocean space, including those arising from the interactions of various Convention regimes. The disadvantage of the General Assembly, however, is that it cannot possibly devote sufficient time to these problems, which would require several weeks at least every second year. To solve this problem, the General Assembly should establish a Committee of the Whole to devote the time needed for the making of an integrated ocean policy. Representatives of the upgraded Regional Seas Programmes, the specialized agencies of the UN system with ocean-related mandates, as well as the non-governmental sector should participate in the sessions of this Committee of the Whole-a sort of "Ocean Assembly of the United Nations," meeting every second year. The integrated policy should be prepared by DOALOS in cooperation with the CSD.
Before resigning from the Independent World Commission on the Oceans, this author introduced the same proposal in that Commission, which included it in its Report but it did not follow up with any action. The IOI instead started an intensive campaign. The proposal was sent to all Missions to the United Nations in New York, and meetings were arranged with various heads of delegations. Innumerable letters were written to Ministries in the capitals. These even included a "pre-pre-draft resolution" of the kind that we hoped would eventually be adopted by the General Assembly. It read:
The General Assembly, Convinced that the closely interrelated problems of ocean space need to be considered as a whole; Aware that these problems concern all states, including states parties to the United Nations Convention on the Law of the Sea, as well as to other ocean-related conventions, agreements and programmes which may have different memberships; Convinced that the United Nations Convention on the Law of the Sea is the framework/constitution for the oceans; Welcoming regional and functional endeavors within this framework; Noting that aspects of the Law of the Sea are now considered in a disparate way and in numerous fora; Recognizing that only the General Assembly, with its universal membership is capable of effectively dealing with these interrelationships; Determined to celebrate the conclusion of this International Year of the Ocean with a concrete contribution to the enhancement of ocean governance for sustainable development, has adopted the following decision: 1. A Committee of the Whole shall be established to follow developments relating to ocean affairs and the law of the sea, to foster a coherent approach to the implementation of the global ocean regime established by UNCLOS, to encourage its ratification, and to identify emerging issues and persistent problems which require international action that would be built upon the basis provided by the Convention, in its interaction with the other ocean-related conventions, agreements and programmes. 2. The Committee, comprising all Member States of the United Nations, should be open to the participation of competent nongovernmental organizations. 3. The Committee should meet in regular session every second year. 4. The work of the Committee should be prepared by DOALOS and the CSD.
Ambassador Saviour Borg, then Director of the Division for United Nations, International Organizations and Common Wealth Affairs at the Ministry of Foreign Affairs of Malta, recalls the IOI campaign as follows:
The Year of the Ocean, one could say, provided another opportunity for Malta, spurred by the Report of the Club of Rome, and the unstinting efforts of the Founder and Honorary Chair of the International Ocean Institute, Professor Elisabeth Mann Borgese, to launch another initiative on ocean space. In June 1998, the then Minister of Foreign Affairs and the Environment, Dr. George W. Vella, requested me to give careful consideration to a letter addressed to the then Prime Minister of Malta, Dr. Alfred Sant, by Professor Mann Borgese. In her letter, the latter stated that she believed that the Year of the Ocean, which at that time was entering its final phase, should not be allowed to pass without leaving a concrete result for the future. In this regard, something was needed to enhance the implementation and progressive development, not only of the Law of the Sea Convention but of all the conventions, agreements, and programmes of the UNCED process, all of which have an important ocean dimension. In the words of Professor Mann Borgese, 'It would be splendid, and historically just, if Malta could take this initiative.'
She continued by stating that widespread agreement existed that a forum was needed where the closely interrelated problems of ocean space can be considered as a whole. It was therefore suggested that the General Assembly should institute a Committee of the Whole, which should be convened every second year for the necessary length of time-probably at least one month, if not two. In my response to Minister Vella's request, and in my capacity as Director for Multilateral Affairs, I remarked that the proposal was a valid one having recalled that at one time, Ambassador Pardo had made a more or less similar proposal to integrate the problems of ocean space in one body. Moreover, I added that at a time when efforts were being made to give the United Nations General Assembly a more leading role in international affairs, it would be an opportune moment to put forward this proposal. Following my recommendation to Foreign Minister Vella, the proposal by Professor Mann Borgese was endorsed and given backing by the Maltese Government. Malta's Permanent Representative to the United Nations, Ambassador George Saliba was instructed to start the ball rolling on the initiative and to conduct the necessary consultations with interested delegations. In the next General Assembly, the then Deputy Prime Minister and Minister of Foreign Affairs, Professor Guido de Marco, who had replaced Dr. George W. Vella following General Elections in Malta, in his address to the plenary of the Fifty-third Session, called for the creation of a forum to consider the closely interrelated problems of ocean space as a whole, and in this connection to establish a Committee of the Whole to meet on a biennial basis to review ocean-related questions in an integrated manner.
The response of the delegations and of the UN Secretariat was cautious. A certain degree of "Law of the Sea fatigue" was perceptible. Four new institutions had been established in the wake of the entering into force of the Convention-the International Sea-Bed Authority in Jamaica, the International Tribunal for the Law of the Sea in Hamburg, the Commission on the Limits of the Continental Shelf in New York, and the Meeting of States Parties in New York. They all had problems and required considerable budgets-who would want to create yet another institution?
We pointed out that this was not to be a new institution, but merely a mechanism to enable the General Assembly to make better informed decisions on ocean affairs and the law of the sea, on the basis of the Secretary-General's Annual Report. This report became longer and more complex with every year that passed, so that it became almost ludicrous for the General Assembly to try to consider it in one single day. But this was as far as we got during 1998. With the Maltese Minister's intervention, however, the proposal was now officially before the General Assembly, and it would not go away any more.
The breakthrough came the following year, with the meeting of the Seventh Session of the UN Commission on Sustainable Development (CSD7), chaired by the then Minister of the Environment of New Zealand, Mr. Simon Upton. New Zealand fully embraced the concept. Success or failure of the entire CSD7 session, in Mr. Upton's opinion, depended on success or failure to establish the needed mechanism.
In spite of considerable resistance, Mr. Upton succeeded. The report on CSD7 to the Economic and Social Council emphasizes that "because of the complex and interrelated nature of the oceans, oceans and seas present a special case as regards the need for international coordination and cooperation," that "the General Assembly is the appropriate body to provide the coordination to ensure that an integrated approach is taken to all aspects of oceans issues ...", and that "to accomplish this goal, the General Assembly needs to give more time for the consideration and the discussion of the Secretary-General's Report on Oceans and the Law of the Sea and for the preparation for the debate on this item in the plenary." The Report therefore recommends "that the General Assembly, bearing in mind the importance of utilizing the existing framework to the maximum extent possible, consider ways and means of enhancing the effectiveness of its annual debate on oceans and the law of the sea."
In order to promote improved cooperation and coordination on oceans and seas, in particular in the context of paragraph 38(d) above, the Commission recommends that the General Assembly establish an open-ended informal consultative process, or other processes which it may decide, under the aegis of the General Assembly, with the sole function of facilitating the effective and constructive consideration of matters within the General Assembly's mandate (contained in General Assembly resolution 49/28 of 1994).
On the basis of this recommendation, the General Assembly adopted Resolution 54/33, which effectively established UNICPO and gave this new organization the tasks of considering the annual report of the Secretary-General on the oceans and the law of the sea and suggesting particular issues to be considered by the General Assembly, with an emphasis on identifying areas where coordination and cooperation at the intergovernmental and interagency levels should be enhanced.
On 14 February 2000, the President of the General Assembly appointed the two co-chairmen for UNICPO. The appointment of the co-chairs was followed by a period of intense consultations, among delegations, with intergovernmental organizations and major groups, to decide on the format of the process, and to select a couple of specific issues that should be brought to the attention of the General Assembly.
The issues that were eventually chosen were "Illegal, Unregulated and Unreported (IUU) Fishing: Moving from Principles to Implementation," and the "Economic and Social Impact of Marine Pollution, Especially in Coastal Areas." To the outsider, this choice might have been somewhat disappointing. Were there not other fora that could deal quite efficiently with these issues, such as the Food and Agriculture Organization (FAO) and the CSD? These subjects seemed to be tied closer to the agenda of the CSD than to that of the General Assembly. Would the unique opportunity of this first session of UNICPOLOS, to consider the closely interrelated problems of ocean space as a whole, be wasted?
Excerpted from OCEAN YEARBOOK 16 Copyright © 2002 by The University of Chicago. Excerpted by permission.
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