New directions in international law: Essays in honour of Wolfgang Abendroth-Festschrift Zu Seinem 75. Geburtstag

New directions in international law: Essays in honour of Wolfgang Abendroth-Festschrift Zu Seinem 75. Geburtstag

NEW DIRECTIONS iN INTERNATIONAL LAW: ESSAYS IN HONOUR OF WOLFGANG ABENDROTHFESTSCHRII:T ZU SEINEM 75. GEBURTSTAG R. Guti6rrez Girardot, H. Ridder, M. ...

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NEW DIRECTIONS iN INTERNATIONAL LAW: ESSAYS IN HONOUR OF WOLFGANG ABENDROTHFESTSCHRII:T ZU SEINEM 75. GEBURTSTAG R. Guti6rrez Girardot, H. Ridder, M. Lal Sarin an,~ Th. Schiller (Editors) Campus Verlag, Frankfurt, New York, 1982, 592 pp., DM 178

As is typically the case with the increasing number of festschrifts, significant contributions dealing with aspects of the law of the sea (and related rubrics such as environmental protection) are included witKin the scope of a series of essays, which attempt to explore far-reaching issues within the broader scope of international relations. In the fests&a'ift dedicated to Professor" Wolfgang Abendroth, a large chapter, indeed a major portion of the large volume, is devoted to the law of the sea. (Part III, pp. 215-373.) This portion of the book constitutes a valuable contribution in its own fight to international sea law, but from the perspective of the emerging legal rights of the Third World. Thus, a deliberate choice has been made by the distinguished editors to stress the problems and legal issues facing the less developed countries, as they attempt to harvest and utilize their offshore resourfes. The reason for this special emplmsis springs from a life-time of dedication by Professor Abendroth to the fields of international law, labour law, and poL;tical science. Having suffered Nazi persecution, imprisonment and flight to S'~ itzerland during World War II, be became concerned with the recognition of the rights of colonial and oppressed peoples. AccoTdingly, the editors have sougl,t to enhance Abendroth's "..°vision of a world community w~thout exploitation in the history of mankind" (p. 12). Not by accident, the book's p;imary thrust is placed upon the " . . . international legal problems of the needs, necessities a.~d interests of 'developing coan.ties' "(p. 11). In evaluating these new directi~;ns being taken by interna&,nal law, the primary example is the law of tlz_.esea, largely because of the United Nations Convention on the Law of the Sea. (U.N. Doc. A/CONF.62/122 (1982).) The new direction of sea law is fimdamental to internatioeal cooperation, within the framework of the United Natio~s--one of the main goals sought by Professor Abendroth. Thus, the sub~iectmatter under review deals with both the classic rubric of international law, while, simultaneously, exploring its new direction, largely as the result of changes in the traditional law of freedom of the seas brought about by the developing states, the Group of 77, and the non-aligned nations at the prolonged Third United Nations Conference on the Law of the Sea. From this perspective, the distinguished

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Indian scholar, R.P. Anand, in Freedom of the Seas: Past, Prese~t. and Future (pp. 215-233), defends the position that the classical doctrine of freedom of the sea--even recognized as jus cogens, serving the interests of mankind-was a vehicle for the imposition of colonialism and a device for continued economic exploitation of the colonial world. The role of "freedom of the seas" was to further imveriali~tic designs. It ultimately led to the conquest of Asia and Africa and literally enslaved their peoples, in his view. Furthermore, he argues that even in Roman law, freedom of the seas was employed as a doctrine of municipal law to further Rornan z~nquest. (Contra, Gormley, The Development and Subsequent Influence of the Roman Legal Norm of "Freedom of the Seas", 40 University of l?.,~roit L.J. 561 (1963); and Gormley, The Development ef the P,~V~odia~l-..oman Law to 1681, with Special Emphasis on the Problem of Collision,, 3 Inter-American L. Rev. 317 (1961) (in regard to the evolution of contempor.~ry maritime law).) However, UNCLOS IIl has changed the traditional standard and relied upon the "common heritage of mankind", largely at the insistence of third world delegates. Professor Anand defends a new law, based on justice, in order that the seas (including hying resources and the deep sea bed) be utilized for the benefit of the developing world. Beyond question, he presents his thesis very forcefully; and from a humanitarian perspective, his conciusions are difficult to refute. Yet the reality of the present political climate in the United Nations, the binding force of traditional law, and the position defended b'." the major maritime powers will lead to continued debate and reexamination of the new law of the sea, regrettably beyond the scope of this limited review. (See especi-,~.Uy,The U.S. Proposals For Amendment to the Draft Convention on the Law of the Sea. Washington: Dept. of State

(19S2).) ~'he role of the superpowers in today's "b~ance of terror" and continuing military confrontation cannot be avoided, as can be appreciated from Professor Donat Pharand's excellent discussion of The Arctic Regions in International Law (pp. 257-277). In additi,-_~ ~o an analysis of a unique geographical region, the strategic implications ~re analyzed, along with related topics, su, ~. as its economic importa_nce and as an avenue for marine t-ansportation. Hence, Professor Pharand in examining Arctic terfio~,---fo,_,Tn the : andpoint of the Canadian experience--seeks to determine "he ~e~_ntodai sovereignty of the region, in particular its continental shelf, which is 'he largest i~ the world. Although the economic interests of North America a~.d the U.S.SR. ~re stressed, the objectives of less developed countries ,re also recognized, as follows: "Wide margin States will have to share wit~a the re~t of the interna*_icnal commtmity the revenues from the exploitation of tLz reso~vz~.es of the continental shelf beyond 200 mile~" (p. 263).

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The special interests of Canada necessarily predominate, especially the regulation of shipping through the Northwest Passage, in order In prevent ecological damage by oil spills. There are, in addition, exceptional hazard,'; to navigation posed by the wesence of polar ice. Consequently, Canada has imposed regulations on foreign vessels. Realistically, emerging states may look to the Canadian experience when prot,~t;ng the ecology of their offshore areas. Specificaliy, Professor Pharand contends that such anti-pollution measures "...rr~ay be regarded a~ready as part of customary international law thereby validat[ing] Canada's Arctic legislation of 1970" (p. 276), Dr. Manohar Lal Sarin, in Reflections on the Progress made by the Third United N~Jtions Conference in Developing the Lz~w of the Sea (pp, 278-315), offers an excellent re~'iew of the background ~'nd the fundamex'ltal issues tmderlying the protracted UNCLOS Ill. Indeed, his penetrating analysis should receive a separate review, in particular, Dr. Y;arin demonstrates a fine sen,-e of history that is fundamental to a full understanding of the present N,.)rth-So~,lr', confrontation. Though he becomes a spokesman for the Third World (a,~:w~s the case with the essay of Professor Anand mentioned above), he is m ~st objective and advances a clear analysis of the conflicting posit~ons. Beginning with tbc concept of "the common heritage of mankind", he a~tacks the traditio~l "lreedonl of the seas". (See, e.g, pp. 280-287.) "The big European powers", he arg,-'es. "insisted upon it and enforced it during ~he last three centarie~. ~etually, they used it to control the seas for the ;ur~herance of their re:~pe, tire ~mperi~d ends" (p. 281). Bu; S~rin'~ '~p,:ci~'. contribution to this ~-asic dispute is that he recognizes the direct itnpact of science and techn~ iogy upon this doctrine. As such, he contends, with considerable validity, that "The direct connection between the development of the taw and the progress i~ the field ~)f science and technology long since has been quite evident, as ~ile economic progress and the development in the field of science and technology exercise a strong influence on the development of international law" (p. 183, citing M. Lachs, Some Reflec',ions on Science, Technology and lnter,~ational Law, in Essays on lnternatio~al L~,w: lr~ Honcur KJ-ishna Ran 13 (1975)# ~--m~'ther,he contends: "The princip!e of the con~.m,.)n aeritage of mankind is now firmly established, at least within the fabric of lhe new, emerging law of the sea (p. 183, see also id. at pp. 286-287). To ~upport these cowclasions, and the positio,~ ~. %e Third World, Dr. Sarin relies on the sene:~ of sessions at UNCLOS 111. Althot,~:h tbi~: :~tep-bystep al~alysis predated Ihe final Conoemion on the Law e,f the Sea, it remains timely~ becau:;e ~f the fact that "even withot, t the law of sea treaty..., the ~abric .';f the law of the sea :s now something ,bsolutely different from what it had been when "~,e UNCuOS III began in 197?" (p. 287).

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The issue--indeed the main conflict continuing after the conclusion of UNCLOS I l l - - i s the future regime of the sea bed and the jurisdiction of the sea bed authority. "Undoubtedly, it was rather difficult, if not !mpossib~e, to find a common basis between the advocates of absolute discretion of the Sea-Bed Authority and the advocates of as:,ared access by private entities" (p. 293). Unilateral at|ions by the industrialized states are condemned. Unfortunately, limitations of space preclude a prol,~nged revi~:w of the projected role (and procedure) of the sea.bed authority, Regardless of the: acceptance of the authority's competence, albeit success, the legal precedent created by UNCLOS Iii will help to re,olve future controversy, e.g. in the settlement of disputes, including the ,',laims of private parties and nongovernmental eatities. (Pp. 299-306.) Dr. Satin, therefore, recognize~ the individual as a subject of international sea law. He maintains that " . . i n contentious cases, neither private persons nor international organizaiions may be parties before the ICJ [the International Court of Justicel gave birth to, or influenced, the idea that the latter was 'not adequ'~te' or le~;ally not in a position to deal with all sorts of disputes pertaining to the interpretation and application of the law of the sea conventiolC (p. 306 (footnote omitled). Accord generally, W. Gormley, The Procedm'al Status of th- Individual before International aad Supranational Tribunals (1966).) In the Epilogue, Dr. Sarin concludes that UNCLOg III "is definitely a milestone in the new international legal order" (p. 307). Professor Surya P. Sharma adopts the same pnilost;[~h7 a.s Anand and Satin; however, he deals with a narrower topic, namely, Delimitation of Maritime Boundaries Between Adjacent and Oppos#e State~--Clarificatton of 8~slr Community Policies. (Pp. 316-332. See also, K. Koh, Straits in International N a v i g a t i ~ (108~ L reviewed in Ocean Managemet, t 9: 317-323.) Dr. Sharma's purpose is to seek a ciarifi~.,,ti~:z of ,,-,,',rid public order policies. Thus, he asks: "[Wlhat are ~h~, ~-elevant community policies at stake that ~vould provide guidance to the proc~;ss of boundary delimitation" (p, 316)? In dealing with this topic, he evaluates the ir~c~usiveinterests cf the global powers in con.~unction with the exclusive interests of adjace~,t and opposite states, in order tc arrive at some reasonable aceommo,t~,aon of conflicting positions. Rather than rely on traditional doctlin~', !,c favors a '~multi-factoral" approach, so as to obtain a peaceful and equitable apportion,v~ent of maritime boundaries. International Law and Marine Polhttion (pp. 333 ~342) is the subjecl, ol a~: e:~.~:eptionally fine though brief presentation by Professor Roman Lal Soni, who poses tire legal issue in terms of "'.. the survival of vano,is species of fauna and flora and indeed, most significarat~y, of its human beings" (p. 333. Accord, W. Gormley. Human Rights and Environment (1976).) The specific purpose of his study is to determine "whether there is a continuing need to

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vngage in the various polluting activities all around the globe and i'~artherm o r e , what is the attitude of the international commtmity towards tiv~se ~i,,.illes for the Iongoterm life of this p l a n e t . . . " (ibid.). In striving ,o re, ,!ve the human pr,Mieament, he advances a plea for international cooper;~*ion ~o save the environment and our common heritage. Therefore, the author co~:siders the work of UNCLOS 111, but within the context of the larger goal, i.e. the protection of the global environment. Hence, ocean polhition becomes the starting point for such experiments. Specifically, "the international law of the aea, especially of pollution control, is in the forefront or" a-political co-operation" (p. 335). And the thr~tst of ais eonclu:,ion=:. is that mankiad---a,~ the custodian of our planet--has the responsibility of protecting the environments in which he must survive, through international law. Both the positions of the industrialized and of the developing societies are at stake, accordi,,g to Soni's approacl,. Here, then, is the meeting ground for classical law and development law, whi,ah is :I e objective of t"rofessor Abendroth. Precisely, a means of advancing the Pew international ~aw and the aspirations of the developing world has becoma ,, ideal. W. Paul Gormley (Washington, D.C.)

THE L!~GAL REGIME OF FISHERIES IN THE! CARIBBEAN REGION W.R. Edeaon and J.F. Pulvenis

This woJ!- is Volume 7 of a series entitled "Lecture Notes on Coastal and Estuarine Stt~d2e';", produced by Springer.Verlag wRh the assistance of an international academic advisory board. According to ~l~c authors, the book had its genes;s i~l :nat :rials collected in the Western Central Atlantic Region in preparatk~ for a seminar on the Changing Law of the Sea and its Implicatiors for Fishcr;.es in the ~,;.e~'ern Atlantic, ,~hich was held in Havana, (.J:,i, in f980. The autLo-s "~iskcd some 27 countries in the region in their efforts to gather prtm. 'y so~.,Fcedocument~ ~t,r comparative analysis. Ovm 3£, p~,ges ~f the book a : dm~,tcd to tables which present an enormous amount of i,flormation on admir.istrative ~equirements for fishing in each of the countries of the r~:gion.

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