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I have to write a 3 paragraph that consist of 250 words on the article “Ideology and the law of the sea (Boczek 1984)” you would have to read the article, and then answer the follow questions. I will submit a screenshot of the questions and a download of the reading. e68729a_3ee5_455b_8151_1f897e078ae3.png .pdf Unformatted Attachment Preview Ideology and the Law of the Sea: The Challenge of the New International Economic Order by Boleslaw Adam Boczek* 1. INTRODUCTION Over the past two decades, the law of the sea has been going through a period of transition brought about by rapid technological change, economic pressures, and, most importantly, ideological and political challenges from developing states. These Third World nations have been questioning several fundamental rules of traditional internationallaw,l including the legal regime of the oceans, which historically has been based on the venerable principle of the freedom of the seas. 2 This international conflict focusing on the law of the sea is only one dimension of much wider confrontation between the affluent industrialized nations of the North and the less developed, destitute countries of the South.3 The latter demand a radical restructuring of the economic power relationship between the two groups of states in the name of the New lnterna- * Professor of Political Science, Kent State University. I. In particular, Third World nations challenge the traditional doctrine that the norms of customary international law are automatically binding on new states. For example, such nations refuse to recognize the rule of international law that aliens ought to be treated according to a minimum international standard of justice. See, e.g., Roy, Is tM Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 AM.]. INTL L. 863 (1961). For an examination of the new states attitudes toward international law see, e.g., R.P. ANAND, NEW STATES AND INTERNATIONAL LAW (1972);]. SYATAUW, SOME NEWLY ESTABLISHED ASIAN STATES AND THE DEVELOPMENT OF INTERNATIONAL LAW (1961); McWhinney, The New Countries arut tM New International Law, 60 AM. J. INTL L. I (1966); L. HENKIN, How NATIONS BEHAVE 119-34 (2d ed. 1979). 2. The principle of the freedom of the seas, a fundamental principle of the law of the sea, became universally recognized by the end of the 18th century. Under this principle, no state may validly subject any part of the high seas to its sovereignty. It was codified in Article I of the Geneva Convention on the High Seas, April 29,1958,13 U.S.T. 2312, T.LA.S. No. 5200, 450 U.N.T.S. 82, and in Articles 87 and 89 of the recently signed United Nations Convention on the Law of the Sea, 7 October 1982, U.N. Doc. NCONF. 62/122, reprinted in 21 INTL LEGAL MATERIALS 1261, 1286-87 (1982) [hereinafter cited as Convention]. For the development of the principle of the freedom of the seas, see I D. OCONNELL, THE INTERNATIONAL LAW OF THE SEA 1-20 (LA. Shearer ed. 1982). 3. This confrontation crystallized with the first United Nations Conference on Trade and Development (UNCTAD I) in 1964 and continued at subsequent UNCTAD meetings. See generally H.K. JACOBSON, NETWORKS OF INTERDEPENDENCE: INTERNATIONAL ORGANIZATIONS AND THE GLOBAL POLITI- CAL SYSTEM 117-19, 253-55 (1979). 2 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW [Vol.Vll, No.1 tional Economic Order (NIEO).4 The ideology of the NlEO offers the developing countries an interpretation of the existing old international order, largely predicated on the principles of the Western ideology of economic liberalism, and rallies them in their struggle for a more equitable new international order. 5 Because of the currently available and potentially exploitable resources of the oceans,6 the law of the sea has become one arena in which the traditional Western international order 7 is being challenged by the ideology of the NIEO. Despite overlapping interests and crisscrossing coalitions, the recently concluded Third United Nations Conference on the Law of the Sea (UNCLOS Ill) was the central stage upon which these challenges have been most explicitly articulated. 8 Communist ideology is not presently posing any major challenge to international law. Instead the ideology of the NIEO stands against the interests of both the United States and the Soviet Union, superpowers which possess virtually identical concerns in some areas of the law of the sea. 9 This article discusses whether, and to what extent, the ideological challenges of the NIEO have had their impact on the existing and evolving rules of the international law of the sea. As the Convention on the Law of the Sea of 1982 is 4. The idea of a New International Economic Order (NIEO) was a byproduct of the developing countries awareness of their economic inferiority in relation to the developed countries. The N lEO was comprehensively articulated in 1974 in the Declaration on the Establishment of a New International Economic Order, infra note II; Programme of Action on the Establishment of a New International Economic Order, infra note 13; and the Charter of the Economic Rights and Duties of States, infra note 17. For the historical background of the NIEO, see generally R. MEAGHER, AN INTERNATIONAL REDISTRIBUTION OF WEALTH AND POWER: A STUDY OF THE CHARTER OF ECONOMIC RIGHTS AND DUTIES OF STATES ch. 2 (1979). 5. The New International Economic Order has been discussed in all its aspects in literally thousands of books and articles. For a short English-language bibliography, see Saxena, Select Bibliography on the New International Econumu Order, 1960-78, 20 INDIAN J. INTL L. 125 (1980). 6. The developing countries are particularly interested in the manganese nodules, containing up to fifty percent manganese, with a high content of copper, nickel, cobalt, and other metals, found in large numbers on the ocean floor. It is estimated that in the Pacific Ocean alone there are 100-billion to 1.5-trillion tons of these nodules which accumulate at an estimated annual rate of 10 to 16-million tons. Cristol, An International Seabed Authority, in THE LAW OF THE SEA: ISSUES IN OCEAN RESOURCE MANAGEMENT, 172, 179 (D. Walsh ed. 1977). For an analysis of the economic value of the manganese nodules from the point of view of the developing countries, see D. LEIPZIGER & J. MUDGE, SEABED MINERAL RESOURCES AND THE ECONOMIC INTERESTS OF DEVELOPING COUNTRIES (1976). 7. Traditional Western international order refers to the economic superiority of the West and the system of international law developed by older Western nations. 8. The Third United Nations Conference on the Law of the Sea (UNCLOS III) opened in New York in 1973 for an organizational session. The substantive sessions were held between 1974 and 1982. The Conference adopted the Convention on the Law ofthe Sea at the 11th session held in New York between 8 March and 30 April 1982. See 29 U.N. CHRONICLE 12-15 Gune 1982). The Convention was signed on December 10, 1982 at Montego Bay, Jamaica on behalf of 117 states. The Final Act, U.N. Doc. NCONF.62/121, reprinted in 21 INTL LEGAL MATERIALS 1245 (1982), contains a review of the origins and history of UNCLOS III. 9. For example, since both the United States and the Soviet Union are the largest naval powers, they have identical concerns in maximizing high seas freedoms and safeguarding unimpeded transit through international straits. 1984] IDEOLOGY AND THE LAW OF THE SEA 3 more or less reflective of the current state of the law, it will provide a major point of reference for the present inquiry. Following some preliminary considerations on the NIEO as a political ideology of the developing nations, the article addresses briefly the international legal aspects of the NIEO, embodied primarily in resolutions and other acts of international organizations. Proceeding to the implications of the NIEO for the evolving rules of the new law of the sea, the article focuses on various dimensions of two major issues: the expansion of the coastal state jurisdiction, both in offshore waters and the subjacent seabed, and the exploitation of the common heritage of mankind in the seabed beyond national jurisdiction. The article concludes with an appraisal of the ideological challenges in the law of the sea in terms of their contribution to the realization of a new equitable international economic order. II. THE NIEO AS A POLITICAL IDEOLOGY Political ideology, for the purposes of this article, may be defined as a more or less coherent body of images, ideas, and values, which critically interpret the existing societal order and offer political leaders a strategy of action for the attainment of a better, preferred order of things.!O In terms of this working definition, the phenomenon of the NIEO certainly may be considered the ideology of the developing world. First, the NIEO offers an interpretation of the origin and state of the present international order. It finds the present system inequitable and unjust because [t]he developing countries, which constitute 70 per cent of the world population, account for only 30 per cent of the worlds income.!! According to the NIEO ideology, this gap, which continues to widen, was established at a time when the great majority of the developing countries did not even exist as independent states. Moreover, the present international economic order is in conflict with current developments in international political and economic relations, such as the growing role of less developed countries as suppliers of energy and raw materials and the emergence of new economic power centers such as the Organization of Petroleum Exporting Countries (OPEC). Furthermore, the developing countries believe that they are playing a disproportionately minor role in the formulation and application of decisions that concern the whole international community. Second, the NIEO offers a set of principles on which a new 10. For some definitions of ideology, see e.g., D. EASTON, A SYSTEMS ANALYSIS OF POLITICAL LIFE 289·91 (1965); La Palombara, Decline of Ideology: A Dissent and Reinterpretation, 60 AM. POL. ScI. REv. 5 (1966); Shils, Ideology: The Concept and Function of Ideology, 7 INTL ENCYCLOPEDIA SOC. ScI. 66 (1968); Herz, International Relations: Ideological Aspects, 8 INTL ENCYCLOPEDIA SOC. SCI. 69 (1968). II. Declaration on the Establishment of a New International Economic Order, May I, 1974, G.A. Res. 3201, 29 U.N. GAOR Supp. (No. I) at 3, U.N. Doc. N9556 (1974), reprinted in 13 INTL LEGAL MATERIALS 715 (1974) [hereinafter cited as NIEO Declaration]. 4 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW [Vol.vn, No. I and more just order ought to be founded l2 and a detailed and comprehensive program of action for the establishment of such an order.13 The NIEO exhibits other characteristics which distinguish an ideology from other types of comprehensive patterns of political thought, such as doctrines, platforms, or theories. 14 First, its basic premises are explicitly formulated and promulgated in three fundamental acts: the Declaration on the Establishment of a NIEO,15 the Programme of Action, 16 and the Charter of Economic Rights and Duties of States. 17 To the developing world, these instruments represent an authoritative promulgation of the NIEO ideology. Second, the NIEO includes mutually reinforcing empirical and normative elements: it describes in critical terms the status of the existing order and proclaims how it should be transformed. 18 Third, it is relatively comprehensive in scope and integrated around particular cognitive and moral beliefs, notably a belief in the existing inequality between the rich and the poor nations and an emphasis on the preeminent value of real equality and justice among the members of international society.19 Fourth, as a political ideology the NIEO is associated with one or more corporate bodies, namely the United Nations and various agencies of the U.N. system, which serve as an institutional framework for the realization of the NIEO objectives. 20 It must be stressed that despite its name, the NIEO is not just an economic ideology. Instead, it is an international political ideology. The less developed countries not only demand a larger share of the planets wealth but also insist on, and give priority to, control of international decision-making processes in the name of real sovereign equality of states. 21 The implications of this emphasis on the control of multilateral decision-making were obvious at UNCLOS III where the composition, powers, and voting in the International Seabed Authority (ISA) were a major controversial issue between the indus- 12. ld. at para. 4 (listing the principles on which the NIEO ought to be founded). 13. See Programme of Action on the Establishment of a New International Economic Order, May 1, 1974, G.A. es. 3202, 29 U.N. GAOR, Supp. (No.1) at 5, U.N. Doc. Al9556 (1974), reprinted in 13 INTL LEGAL MATERIALS 720 (1974) [hereinafter cited as Programme of Action]. 14. See Shils, supra note 10, at 66. 15. See NIEO Declaration, supra note 11. 16. See Programme of Action, supra note 13. 17. Charter of Economic Rights and Duties of States, Dec. 12, 1974, G.A. Res. 3281, 30 U.N. GAOR Supp. (No. 31) at 50, U.N. Doc. Al9631 (1975)[hereinafter cited as Charter], reprinted in 14 INTL LEGAL MATERIALS 251 (1975). 18. For example, the NIEO Declaration, supra note II, in paragraph 1 refers to the gap between the developed and the developing countries, and then makes a normative statement on what ought to be done about it. (principles of the NIEO). 19. See, e.g., the NIEO Declaration, supra note 11, para. 4(b)(C)(j). 20. NIEO Declaration, supra note II, para. 6. The United Nations as a universal organization should be capable of dealing with problems of international economic co-operation in a comprehensive manner and ensuring equally the interests of all countries. It must have an even greater role in the establishment of a new international economic order. ld. 21. ld. para. 4(c). 1984] IDEOLOGY AND THE LAW OF THE SEA 5 trialized West and the Group of 77. 22 Finally, despite great economic and other differences that exist among the Third World nations, developing states have given priority to their common ideology even if adherence to it may run counter to their particular national interests. Even if national interests are followed, they are dressed in the garb of the ideological rhetoric of the NIEO. Ill. THE NIEO AND INTERNATIONAL LAw A. NIEO Challenges to Traditional International Law The developing countries criticism of the existing international order as based on the laissez-faire ideology of economic liberalism is matched by their discontent with traditional international law, which reflects, in their view, the unjust economic and political reality.23 As applied to economic relations, traditional international law assumed freedom of contract and formal equality before the law but it did not guarantee equality in bargaining power and equitable distribution of wealth and opportunity. Hence, the NIEO strategy has been to incorporate rules into the body of international law which would both bring legal and material equality into greater concordance24 and to obligate rich nations to take into special consideration the needs and interests of developing nations. Pref: erential and non-reciprocal treatment for developing countries, wherever feasIble, in all fields of international economic co-operation whenever possible is one of the fundamental principles of the NIEO.25 Under traditional international law, considerations of equity and natural justice are incom patible with a system of sovereign states in which justice means legal equality, reciprocity, and impartiality. Therefore, it is exactly these principles which are being questioned by the NIEO.26 The NIEO strategy has been, first, to build up and expand the law of cooperation - the international economic development law27 - into new fields such as, for example, transfer of technology, transnational corporations, and access to ocean resources. In addition, the NIEO strategy is to reinterpret the traditional principle of equality to mean not only legal equality but also equality of 22. Stt also intra text at notes 145 to 157. 23. For the sharpest denunciation of the traditional oligarchic and plutocratic international law , see M. BEDJAOUl, TOWARDS A NEW INTERNATIONAL ECONOMIC ORDER 49-63 (1979). This is an English translation of the original French POUR UN NOUVEL ORDRE ECONOMIQUE INTERNATIONAL (1979). 24. W. LEVI, LAW AND POLITICS IN THE INTERNATIONAL SOCIETY 125 (1976). 25. NIEO Declaration, supra note 11, para. 4(n). 26. Whether it is possible to build a system of international law in which legal equality can be made compatible with material equity is another problem. 27. For early conceptualization of the international economic development law see B. ROLING, INTERNATIONAL LAw IN AN EXPANDED WORLD (1960); W. FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 176-81 (1964). The idea is developed further in W. VERWEY, ECONOMIC DEVELOPMENT, PEACE AND INTERNATIONAL LAW (1972). 6 BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW [Vol.vn, No.1 economic opportunity and human dignity. It is beyond the purview of this study to elaborate on all of the international law implications of the NIEO demands for equity. This theme, however, is developed in its application to specific issues of the NIEO challenges in the international law of the One caveat that must be made when discussing NIEO challenges to international law is that Third World countries do not reject Western international law as such. Quite the contrary, like the Soviet Union,29 they endorse the basic principles of the law of coexistence, including the bulk of its rules delimiting national sovereign rights, such as equality of states and the consensual nature of international law. What underlies the split between the Western nations and the developing worlds approaches to international law are differences not of culture, but of economic and political interests. B. Converting NIEO Principles into International Legal Obligations The Declaration and the Programme of Action of 1974 and the Charter of 1975 are the most explicit and basic formulations of the NIEO ideology. They are the culmination of a long series of previous, less comprehensive international acts and declarations,30 especially those adopted by the United Nations General Assembly, by the Group of 77 at the United Nations Conference on Trade and Development (UNCT AD), and by non-aligned nations conferences. 31 As General Assembly resolutions, the fundamental instruments that have shaped the NIEO ideology are only recommendatory in nature. Contrary to the position of the developing nations, they are not legally binding acts unless one assumes that they reflect otherwise existing customary international law .32 The latter possibil- 28. See Johnston, The New Equity in the Law oJ the Sea, 31 INTLJ. 79 (1976); Hossain,Equitable Solutions in the International Law oj the Sea: Some Problems, in LEGAL ASPECTS OF THE NEW INTERNATIONAL ECONOMIC ORDER 193 (K. Hossain ed. 1980). 29. See generally K. GRZYBOWSKI, SoVIET PUBLIC INTERNATIONAL LAW: DOCTRINES AND DIPLOMATIC PRACTICE (1970). 30. See, e.g., Resolution on Permanent Sovereignty over Natural Resources, December 14, 1962, G.A. Res. 1803, 17 U.N. GAOR Supp. (No. 17), U.N. Doc. A/5217 (1963) reprinted in 2 INTL Legal TERIAI.S 223 (1963). 31. For a survey of the historical background of the NIEO, dating from the inter-war period, see R. MEAGER, supra note. 4. 32. The much discussed problem of the legal status of U.N. General Assembly resolutions is beyond the scope of this inquiry. The issue and especially the validity of the NIEO Declaration, see supra note II, and the Charter, see supra note 17, were analyzed in the Arbitral Award of 19 January 1977 in the dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Company (TOPCO/ CALASIATIC) v. The Government of the Libyan Arab Republic, Award on Merits, January 19, 1977 [hereinafter cited as TOPCO/CALASIATIC Award]. The English translation of the Award is reproduced in 17 ... Purchase answer to see full attachment