ESTABLISHMENT OF SOCIAL AND DISTRIBUTIVE JUSTICE STANDARDS VIA A REGIME OF NEW INTERNATIONAL ECONOMIC ORDER- A CRITICAL REVIEW OF LAW OF THE SEA CONVENTION

 

ESTABLISHMENT  OF SOCIAL AND DISTRIBUTIVE JUSTICE STANDARDS VIA A REGIME OF NEW INTERNATIONAL ECONOMIC ORDER- A CRITICAL REVIEW OF LAW OF THE SEA CONVENTION

 

 Ravi Waidyalankara, PhD (IUFS)

Deputy Inspector Gen of Police Sri Lanka DIG

Trincomalee

 

The increasing scarcity of resources and the needs of the human kind extends up to the exploitation of the living and non living resource of the ocean.  The sea had been used only for the purposes of the trade, war fare and traditional fishing by the ancients mainly in the coastal states.  However, with the whilst passing from age to age, specially from the industrial age, the human kind gradually realized the invaluable wealth of ocean resources such as minerals, petroleum and gas.  Thus the relationship between the mankind and the sea was growing expeditiously. 

 

 

NIEO and Right to Development

 

The concept of NIEO derived out of the right to develop.  The emergence of right to development spans the forty year period from the formation of the United Nations Organization in 1945 to the adoption of the Declaration on the Right to Development by the UN General Assembly in 1986.

 

The UN Charter, grounded in international cooperation, emphasizes the importance of social justice and human rights as the foundation for a stable international order.  Its preamble, which states that the United Nations is determined “to promote social progress and better standards of life in larger freedom,”  hints at the relationship between human rights and development.

 

Two strands of United Nations standard-setting are relevant to this inquiry; human rights law and international development law.  The 1948 Universal Declaration of Human

 

Rights urges all nations to respect specified rights and freedoms.  While several of these rights are in the civil and political realm, a number expressly pertain to economic concerns.1

 

The Universal Declaration of Human Rights anticipated the preparation of a binding treaty on human rights.  The legal and political complexities of this process will not be described here, but within two decades, two separate human rights agreements emerged: the International Covenant on Civil and Political Rights (:ICCPR”), and the International Covenant on Economic, social and Cultural Rights (“ICESCR”).  While neither covenant expressly refers to a right to development, many of the principles and rights specified therein are crucial to an understanding of such a right.

 

In addition to the evolution of human rights, changes in international economic relations have also shaped the legal framework of the right to development.  One of the outgrowths of colonial independence was the entry of “less developed countries’ (“LDCs”) into the UN system.  The LDCs worked together in an effort to change the existing international economic regime, and to codify new norms into a legal document.  This strategy began to bear fruit in May 1974, when the General Assembly adopted a Declaration and Program of Action on the Establishment of a New International Economic Order (“NIEO”).  A further step came with the adoption of the Charter of Economic Rights and Duties of States, asserting hat every State has the responsibility to promote economic, social and cultural development and progress for both its own people and those of developing countries.

 

The NIEO challenge to the status quo, and the far-reaching implications of its implementation, was met with substantial resistance by industrialized countries.  Notwithstanding such controversy, it is clear that many NIEO provisions have helped shape the right to development.  While the documents associated with the NIEO make no

 

 

1  Article   of HR 22 of

 

mention  of  such a right, official UN reports on  the  right  to  development  do  take  into

account elements of the NIEO.  Indeed, the UNDRD itself affirms that states should: “fulfill their rights and duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and co-operation among all States, as well as to encourage the observance and realization of human rights.

Adoption of the UN Declaration on the Right to Development

 

As early as 1957, the UN General Assembly affirmed “that a balanced and integrated social and economic development would contribute towards the promotion and maintenance of peace and security, social progress and better standards of living, and observance of and respect for, human rights and fundamental freedoms for all.

 

An International Conference on Human Rights, held in Teheran n 1968, asserted the profound interconnection between the realization of human rights and economic development.  Moreover, the 1969 Declaration on Social Progress and Development renewed the UN’s commitment to the importance of a “just social order.”

 

NIEO, Right to Development and Theoretical Aspects

 

Distribution of resources among the humankind and to set a balance between economic development and a sustainable development needs to be viewed with a criteria based on justice and equality.  In this sense the two principles of justice which relates to the social equality to be analyzed.

 

  1. Theories of Distributive Justice
  2. Principles of Social Justice

 

Distributive of Justice

 

The essence of distribute of justice need to answer the three following main questions.

1.      What goods are to be distributed?  Is it to be wealth,  power, respect, some combination of these things ?

2.      Between what entities are they to be distributed ?  Humans, sentient beings, the members of a single society, nations ?

3.      What is the proper distribution ? Equal, meritocratic, according to social status, according to need ?

 

The main components of Distributive Justice based on ;

  1. Egalitarianism
  2. Giving people what they deserve
  3. Fairness
  4. Welfare maximization

 

Social Justice

 

John Rawls  used a social contract argument to show the justice, specially distributive justice, is a form of fairness.  Rawls pointed out, to imagine ourselves behind a veil of ignorance which deny the knowledge of personalities, social status, moral characters, wealth, talent and other characteristics. The principles of Rawls’s socio justice endorses ;

 

1.     Principle of Equal Liberty : Each person has an equal right to the most extensive liberties compatible with similar liberties for all (Egalitarian.)

2.     Difference Principle: Social and economic inequalities should be arranged so that hey are both

(a)  to the greatest benefit of the least advantaged persons, and

(b)  attached to offices and positions open to all under conditions of equality of opportunity.

 

Both these two principles deals basically deals with equitable distribution of resources and the proportionate distribution depending on the financial status of the individuals and the entities.

 

Distribution of Ocean Resources among Landlocked States and Geographically Disadvantages States and their Rights

 

Landlocked states have no sea coasts  and also suffer from the lack of direct access to the sea and the living and non living marine resources.  On the other hand the geographically disadvantaged states have a very short coastal line in proportion with the size of it’s land territory.  The geographical situation of these two categories deprived the major resources of the mankind to these states, therefore denied the right of utilizing marine resources for their development and the well being of it’s citizens.  These two categories encounters problems in three main areas. 

  1. Rights of navigation
  2. Access to marine resources
  3. Access to and from the sea

 

Although these areas had been under discussion at various stages during the recent past the UNCLOS III established in 1982 had taken certain radical steps to settle the said issues of the landlocked and geographically disadvantage states.

 

Article 69 and 70 of the UNCLOS III spells out the rights of the landlocked states and geographically disadvantaged states.

 

Article 69

  1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.
  2. The terms and modalities of such participation shall be established by the States concerned through bilateral, sub-regional or regional agreements taking into account, inter alia;

(a)  the need to avoid effects detrimental to fishing communities or fishing  

      industries of the coastal State;

(b)  the extent to which the land-locked States, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, sub-regional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;

(c)  the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;

(d)  the nutritional needs of the populations of the respective States.

 

  1. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, sub-regional or regional basis to allow for participation of developing land-locked States of the same sub-region or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the sub-region or region, as may be appropriate in the circumstances and on terms satisfactory to all parties.  In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account.
  2. Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same sub-region or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.
  3. The above provisions are without prejudice to arrangements agreed upon in sub-regions or regions where the coastal States may grant to land-locked States of the same sub-region or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.

 

 

 

 

Article 70

 

1.      Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.

2.      For the purposes of the Part, “geographically disadvantaged States” means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the sub-region or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.

3.      The terms and modalities of such participation shall be established by the States concerned through bilateral, sub-regional or regional agreements taking into account, inter alia;

(a)  the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;

(b)  the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, sub-regional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;

(c)  the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;

(d)  the nutritional needs of the populations of the respective States.

4.      When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, sub-regional or regional basis to allow for participation of developing geographically disadvantaged States of the same sub-region  or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the sub-region or region, as may be appropriate in the circumstances and on terms satisfactory to all parties.  In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account.

5.      Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones  of developed coastal States of the same sub-region or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.

6.      The above provisions are without prejudice to arrangements agreed upon in sub-regions or regions where the coastal States may grant to geographically disadvantaged States of the same sub-region or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.

 

High Seas

 

High Seas do not belongs to any of the States sovereignty and it it opened to all the States whether coastal, land-locked or geographically disadvantaged States.  Rights and obligations of all States in High Seas are enshrined in Part VII of the UNCLOS III.  Some of the salient articles in this part are;

Article 87      -  Freedom of the High Seas of all States

Article 90      -  Right of Navigation of all States

Article 91      -  Nationality of Ships

Article 94      -  Duties of every Flag State

Article 98      -  Duty to render assistance by all States

Article 99      -  Prohibition of transport of Slaves by all States

Article 100     -  Duty to cooperate in the repression of piracy by all States

Article 109     - Unauthorized Broadcasting from the high Seas

Article 110     -  Right of visit

Article 116     -  Right to fish in the High Seas for all States

Article 117, Article 118, Article 119 and Article 120 – Conservation of living

                      Resources of the High Seas

 

Right of Access of Land-locked States to and from the Sea and freedom of transit

 

Part 10 of the UNCLOS III deals with the Rights of the Land-locked States to and from the sea and the freedom of the transit.  Article 124 and 125 deals specially in this regard.

 

Article 124 :

1.            For the purposes of this Convention :

(a)  “land-locked State” means a State which has no sea-coast;

(b)  “transit State” means a State, with or without a sea-coast, situated between a 

        land-locked State and the sea, through whose territory traffic in transit passes;

(c) “traffic in transit” means transit of persons, baggage, goods and means of

       transport across the territory of one or more transit States, when the passage

       across such territory, with or without trans-shipment, warehousing, breaking bulk

       or change in the mode of transport, is only a portion of a complete journey which

       begins or terminates within the territory of the land-locked State;

(d)  “means of transport” means:

       i.  railway rolling stock, sea, lake and river craft and road vehicles;

     ii.  Where local conditions so require, porters and pack animals.

2.            Land-locked States and transit States may, by agreement between them, include as means of transport pipelines and gas lines and means of transport other than those included n paragraph 1.

 

 

 

Article 125

 

1.            Land-locked  States shall have the right of access to and from the sea for the purposes of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind.  To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport.

2.            The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, sub-regional or regional agreements.

3.            Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests.

 

The Area

 

The principles governing the area are stated in Article 136 to Article 155.  The area denotes the sea bed and the ocean floor and subsoil thereof beyond the limits of national jurisdiction.  Article 136 clearly states that the area and its resources are the common heritage of mankind.  According to Article 137 not States can claimed or exercised sovereignty or sovereign rights over any part of the are or its resources, nor shall any State or natural of judicial person appropriate any part thereof. No such claim or exercise of sovereignty or severing right no such appropriation shall be recognized. Further Article 137 states that all rights in the resources of the area are vested in the mankind as a whole these resources are not subjected to any alienation.  The minerals recovered from this area, however only be alienated in accordance with the rules  and regulations and the procedures of the authority.  The authority denotes international sea bed authority. 

 

Article 140 states that the activities of the area shall be carried out for the benefit of the mankind at whole.  Irrespective of the geographical occasion of the States, whether coastal or land-locked and taking into the particular consideration the interest and needs of developing states and the of people who have not attain full independence or other self-governing states recognized by the United Nations in accordance with the General Assembly Resolution 1514(XV) and other relevant general assembly resolutions.  Article 143 deals with the marine scientific research whilst Article 144 deals with the transfer technology to developing states.  Protection of marine environment (Article 145) and the development of resources of the area (Article 150) made all the states liable for the protection of marine environment and development of resources. 

 

Critical Analysis

 

In the context of NIEO and the principles spelt out in social justice and distribute of theories not only the ocean resources but also any resource of the universe are belongs to the mankind and every human being is entitle to a sustainable equitable share of those resources.  But it unfortunate that most of the ocean resources specially in the territorial seas, contiguous zones, continental shelf and exclusive economic zone are being enjoyed only by the coastal states except the surplus of the living marine resources in the EEZ subjected to the maximum sustainable yield.  Thus, it is also at the mercy of the coastal states which claims the particular EEZ zone. 

 

It is worth to note that out of 192 States of the world 42 have no sea coast.  Land-locked countries constitutes about 8.5% of the land of the world and the 4% of the population of the world.  The list of land-locked countries are at Annex. A.  It is significant to note that 90% of the land-locked and geographically disadvantaged countries are among the poorest category with low income and the low rate of GDP.  The per captor income of these countries are also at a very low level which indicates the degree of poverty of the people of these countries. 

 

The lesser access to the marine resources of these countries may not be the entire cause for the poverty but the denial of the ocean resources had contributed the considerably to a great extent to the social and economic development people of these countries, in a country as a whole.

 

However, the founding fathers of UNCLOSE III had granted considerable relief and compensated the land-locked states and the geographically disadvantaged states by granting rights of navigation, access to ports limited access to marine resources, access to high sea resources, access to sea bed regime  and access to EEZ resources.  Nevertheless, the cardinal question remains of the capability and the technology of this land-locked states mostly under developed to exploit the relief granted under UNCLOS III. 

 

Although the provisions are available for sharing of the transfer of technology and the technological assistance and support the under developed state or the developing states are at the mercy of the developed  technologically enriched nations.  Thus, the indirect authority of the developed states will be extended on the less developed states which leads to somewhat a modern colonization. 

 

On the other hand the provision of Article 69 and 70 enable the land-locked states to harvest the surplus of the fish stocks only in the EEZ area.  However, no reference is make in UNCLOSE III with regard to the sharing of resources in the mineral and gas enriched continental shelf.  There again a distinction is made between the developed and developing states thus developing land-locked states are permitted to get the surplus harvest of the coastal states  and developed land-locked states are permitted the same activity only in the EEZ developed coastal states. However, the question remains of how the developed land-locked states commence exploiting the developing coastal states with the advance technology and other resources available.  In that sense it is worth to look at this aspect in the social equitable perception. 

 

Merits and Demerits of UNCLOS III in respect of  Equal Distribution of Resources

 

The new NIEO principles enshrined in the UNCLOS III has opened up a new regime of equitable distribution of marine resources and prevented the states with economic and technical capabilities to have a monopoly under the old regime.  This principle is routed and nurtured on equality.  This can be describe as an effort to ensure the inability of the developing states to met the basic need is rectified. Thus, equitable distribution resources placed invaluable role. 

 

The new regime under the UNCLOS III was a significant victory of the developing nations which cemented a principle of common heritage of mankind.  However, in real practical scenario the equitable distribution of resources among the states and the human kind has become questionable.  Although the UNCLOS III made provisions available for all nations to have equitable share of resources the capacity and capability of the under developed countries has to taken in to consideration in exercising the rights granted.  This is mainly due to the economical and the technical disadvantaged of the developing countries.  The sea bed, the area and the high seas at already been declared as the common heritage the mankind but it is a night mare of developing countries to exploit the  resources for their benefit and the development.  Nevertheless, the efforts of under Article 136 and 137 (III) of UNCLOS III which is more theoretical and deserves the admiration of the entire humankind.

 

Clearly formulated provisions to protect the developing nation from adverse effects of  upon their exports and economic provided under Article 150 also a key feature  of UNCLOSE III in terms of reducing the gaps between developed and underdeveloped. Further, the obligations of the authority and the state parties to co-operate in promoting the transfer of technology and scientific knowledge also facilitate the developing states.  Sharing of benefits enable the developing countries to acquire wealth to generate further development in terms of equitable distribution which is guaranteed under the Article 50(D) and 160 (2)(F).  The establishment of International Sea Bed Authority is another significant feature of UNCLOSE II.  This is an only international organization vested with powers to administer  a common property resource on behalf of the entire mankind. 

 

The significant trump achieved through the UNCLOS III based on NIEO principles, social and distributive justice had been diluted to  a certain extent by the implementation agreement adopted subsequently, backed-up by western capital states. The provisions of access of the  common heritage has undermined the developing states as the access is now on a first come fist serve basis.  Also the production limitations favours the developed states than the underdeveloped states, along with the substitute market orientated GATT restrictions.  The illumination of mandatory transfer of technology shall not apply under the provisions of the implementation agreement.  Further, the provisions of the implementation agreement guarantees seats  in the International Sea Bed Authority based on the economic strength (GDP), depriving the participation of the developing states.

 

The practical value of the UNCLOS III had been faded away in various forms by the developed nations as discussed above.  In fact certain provisions of the agreement favours the interest of the developed nations undermining the principles of social justice.  Its replaces the social of justice principles with the market orientated principles harming the equitable distribution of resources among humankind.  It appears the developing countries had been out played due to the factors of economic, technology and the political hegemony of the developed nations. Although the western capitalist responded with various explanations such as change of polarization, globalization and global village concept and the changing trends due to the development of IT, the theories of social and distributive justice are unchallenged and stands firm even within the changing social economic and political environment of the world. 

 

Future of the UNCLOS III and Conclusion

 

The UNCLOS III has change the old international economic order to a new international economic order based on the principles of social and distributive justice.  A foundation of this change is centered around equality and the right to developed which is recognized as a human right.  The growing tribute has to be paid to the fore fathers or the founders of UNCLOS III for the most significant effort taken to distribute the marine resources on the equitable basis, nevertheless, justice had been denied and diluted to the developing nations, with subsequent documents  inspired by some developed nations.  Therefore, the writer is of the view that the common heritage of the mankind should be divided proportionately among the developing nations, in the future, until all the states achieves equal social economical and political power and influence.

 

 * * * * * * * * * * *