|
Inaugural Meeting of the Fifty-Seventh Conference of the International Law Association at Madrid
Speech by its President
by A.N. Ray, Chief Justice of India*
Cite as : (1976) 4 SCC (Jour) 1
On behalf of the International Law Association I thank Mr Antonio Rodriguez Sastre, President and his colleagues of the Spanish Branch and the Government of Spain for their kind invitation extended to the Association to hold the 57th Biennial Conference at Madrid. Distinguished members have arrived from several countries for exchange of ideas and discussion with one end in view. It is to help bringing about a better international public order regulated by system of universal legal norms by collaborative efforts. For over a century our Association has been performing its contemporary tasks with sincerity of purpose which is well known. The participation of the developing nations in the activities of our Association has given it a new dignity and dimension.
It is a delight for all of us to have an opportunity of visiting this country of great historical interest with important contribution to civilisation. Our colleagues and friends in this country have overwhelmed us with traditional hospitality of this country. This beautiful city will reveal to us valuable gems and treasures at Prado Museum, the Royal Palace and El Escoriai monastery.
At the Delhi conference where our Association gave me the honour of becoming President I said that after the completion of a century of work our Association should take a lead to harness the economic resources of the world for the benefit of mankind. We have to think of formulation of adequate principles to safeguard the rights of developing nations. There should be justice and fair play to the developing nations in their quest for an equitable share in the resources of the world. This is for the welfare of humanity and for the development of human personality.
In 1913 when our Association met in Spain the outlook of International Law was different. In the nineteenth century nations fought for affirmation of nationality and sovereignty. In 1913 the Western world was competing in challenges and confrontation for power. Since then the world has seen two wars of great magnitude. A modern International Law has been emerging as reflection of contemporary social, economic, scientific and technological needs. Ideas have undergone change from State sovereignty, war and neutrality towards equality, universality, fundamental human rights and the promotion of social welfare, economic progress and interdependence. Modern communications, transport, science and technology are guiding the interest of the community of nations as a whole. The old world principles of International Law, customary and conventional, are changing. The United Nations and its subsidiary agencies are broadening universal participation. International Law has ceased to be only European law. Its institutions are now world-wide. The doors of International Law are opening from the developing countries and the third world. Modern International Law for its lack of enforceability has developed and will develop a world of growing interdependence and indivisibility directed towards achievement of peace and happiness of mankind.
The philosophies of the State and the theories of law present diversities and contradictions. These are products of the individual variations of the human mind. In the twentieth century the individual all over the world is trying to manifest for human excellence. The two great world wars led to economic and political crisis in various parts. Social thinkers became less sure of their remedies for human ills. The great scientist Einstein said that science cannot change the nature of evil in the heart of man. People all over the world are travelling from man the known to man the unknown.
The great idea of human unity is recognised but it is not being put into action. It is indeed remarkable what at the end of the last century Swami Vivekananda gave to humanity. These are his words:
"The second great idea which the world is waiting to receive from our Upanishads is the solidarity of this universe. The old lines of demarcation and differentiation are vanishing rapidly. Electricity and steam power are placing the different parts of the world in intercommunication with each other . . . . When we go out of our country we find the same brother-man, with the same strong hand to help, with the same lip to say God-speed
. . . . Our Upanishads say that the cause of all misery is ignorance; and that is perfectly true when applied to every state of life either social or spiritual. It is ignorance that makes us hate each other, it is through ignorance that we do not know and do not love each other. As soon as we come to know each other, love comes, must come, for are we not one? Thus we find solidarity coming in spite of itself. Even in politics and sociology, problems that were only national twenty years ago can no more be solved on national grounds only. They are assuming huge proportions, gigantic shapes. They can only be solved when looked at in the broader light of international grounds. International organisations, international combinations, international laws are the cry of the day. That shows the solidarity."
The prophetic words of Swami Vivekananda at the end of the last century are more true today. It requires each country to speak through persons of vision and sympathy. The Vedic thought in our country is: "Be thou all of one mind, be thou all of one thought." Being of one mind is strength of the country and the people. This is the secret source of willpower and co-ordination. No organisation can succeed without mutual trust and co-operation. We have to open our eyes and see what is going on in the whole world. We prepare for human excellence by asking us to strengthen within and bear with the environment. Our scriptures instil patience and endurance in place of struggle and advance in the external world and enhance the capacity for renunciation and suffering in place of enjoyment. In essence our scriptures ask us to fight with enemies within man and not outside. It is this approach which gives man human fulfilment and heights of humanity. The divine core in man is revealed in intrinsic value and dignity of man over and above his external values in pride, power and pleasure. This is also the message of the Greek civilisation: "Man know thyself." Our spiritual philosophy which teaches this solidarity of our existence strives for happiness and peace of all beings and thus makes people free from strife and contradiction.
The justification of the existence of international community amidst the variety of nations and cultures, of political options and degrees of development is reflected in common aspirations as well as problems of mankind. Humanity is directed in its movement towards one destiny. This is the fundamental solidarity of peoples in spite of differences and conflicts which are external and transitory. Each individual is seeking the right to realise his potential and he also wants to share in the building of his own future. Man has not only to fulfil himself but has to give to others. Man is to communicate his personality to others. It is this which will bring about universality of mankind.
I would like to say a few things on our four principal subjects for discussion. These are Space Law, Law of the Sea, Environment and Human Rights.
Our Association has done pioneering work in the field of Space Law. At Hamburg in 1960 we formulated the twin principles of the freedom of outer space and celestial bodies and the consequential exclusion of national sovereignty in such areas. These principles emanate from the basic concept that the resources of outer space are the common heritage of mankind and there should be freedom of exploration and use for the common benefit of mankind. It is the spirit of co-operation which is responsible for international consensus in the Outer Space Treaty of 1967, the agreement on the rescue of astronauts in 1968, the convention in 1971 on international liability for damage caused by space objects, and the convention in 1974 on the registration of objects launched into space. At Buenos Aires we formulated a flexible but workable definition of "outer space" in the context of the present technological developments. What was science fiction yesterday has become a stark reality today. Moon, otherwise empty and dead, is perhaps rich in non-living resources, like aluminium, glass, concrete and other substances. There are perhaps indications of the existence of vapour, ice and water in the planet Mars, 204 million miles away from the world where we live.
India, as a developing nation, is proud in joining the outer space club by successfully orbiting its experimental satellite Aryabhatta. The Chairman of the Outer Space Committee of the United Nations said of our effort to be significant and an outstanding achievement.
On a mandate from the General Assembly, the Outer Space Committee of the United Nations is working on a priority basis in three principal areas: first, drafting a treaty relating to the moon; second, formulating principles for agreement or agreements governing the use by States of artificial earth satellite for direct television broadcasting; and, third, detailed consideration of remote sensing from space of the earth. It is likely that the United Nations Conference on Outer Space will be convened in the near future. World Administration Radio Conference for the planning of broadcasting radio satellite service is scheduled to be held in January/February 1977 under the auspices of the International Telecommunications Union.
At our conference we are concerned with direct broadcast satellites. In simple terms direct broadcasting by a satellite means a satellite stationed in geostationary orbit (altitude about 35,870 km. above the equator) which may permit the transmission of broadcasts and telecasts directly to home receivers without the intervention of a terrestrial station of reception or distribution. It is said that the technical feasibility of such broadcasts has moved much nearer to practical realization in recent years. We may profitably look into the progress so far made by the United Nations agencies in this field. The Working Group on Direct Broadcast Satellite of the Outer Space Committee of the United Nations which has been meeting since 1969 has identified 14 principles, indicating areas of agreements and differences, which ought to be considered in formulating a draft treaty regulating direct television broadcasting by earth satellite.
Such broadcasting programme will assist in the social and economic development, particularly in the developing countries, and will promote cultural exchanges and educational levels of peoples in various parts of the world. The problem is to reconcile the principle of free flow of information with the principle of strict respect for the sovereign rights of the States. Discussions in the Legal Sub-Committee of the Outer Space Committee held in 1975 indicated a trend towards a general consensus that the concept of prior consent and the concept of freedom of information are not really incompatible.
All States should have equal rights and should be entitled to share in the benefits of activities in the field. Equitable access to the frequencies and to the geostationary orbit shall have to be guaranteed for all States. International co-operation on regional and international basis is essential with a view to deriving the maximum benefit from this new technology for all countries, particularly the developing countries. The term "regional" has to be understood in a broad sense. It is not necessarily confined to territorial regions, but embraces within its scope countries having identity of interests and shared values. Such collaborative efforts will help considerably in solving educational and social development problems.
There is a trend of thought that a State should bear international responsibility for all national activities—whether by governmental or by non-governmental agencies—in this field. Others point out that such a principle is unacceptable because it would create problems for States whose broadcasting entities are not subject to State control.
According to some States prior consent is essential and goes to the root question of State sovereignty and non-interference in domestic affairs. Others contend that the acceptance of such a principle would undermine the vital concept of free flow of information and of freedom of exchange of views and would thereby grant the receiving State a power of veto which is inconsistent with Article 19 of the Universal Declaration.
International Telecommunications Union Regulations provide that all technical means should be used to reduce to the maximum extent practicable the radiation over the territory of other countries unless there is a previous agreement between them. Another view has been expressed that the spillover is unavoidable even if one hopes to reduce it appreciably. There is need for finding out what is avoidable and what is unavoidable spillover and whether such radiation is intentional or unintentional and to have a legal framework to control the problem in the context of technological solutions.
In addition to the principle of consent it is necessary to exclude certain types of programmes which undermine the principle of peaceful coexistence, e.g. war propaganda, racial hatred, interference in the internal affairs of a foreign State. We are told that an agreement has been reached at the Legal Sub-Committee of the Outer Space Committee of the United Nations on State responsibility and peaceful settlement of disputes while considerable progress has been made towards a general consensus on purposes and objectives, consent and participation, duty and right to consult and international co-operation and spillover.
We hope that our discussions will help reducing the differences by suggesting legal formulas which will reconcile the key issues, namely, the principle of free flow of information and the principle of the State sovereignty and non-intervention in internal matters, keeping in view the needs of the developing countries. Our Association may extend the scope of its enquiry towards a draft treaty relating to the moon and the implications of remote sensing from the space to the earth.
At our Delhi conference we became convinced that broadcasting by satellites constitutes a most powerful means of promoting social and cultural progress of the entire world population. We find that international co-operation is the touchstone for the development and use of satellite broadcasting for the benefit of all countries wishing to avail themselves of this new technology.
The basis of recent discussions on Law of the Sea at the Fourth Session of the United Nations Conference concluded on May 7, 1976 at New York consisted of three instruments known as Informal Single Negotiating Texts Parts I, II and III. On May 6, 1976, Revised Single Negotiating Texts Parts I, II and III were released. The Committee I deals with an international regime for sea-bed resources in the high seas beyond the limits of national jurisdiction. These resources are said to be the common heritage of all mankind. The main problem of this committee is to reconcile the views of those who favour a system of direct exploitation of the resources of the high seas by the proposed international authority with the views of those States which want an assurance of guaranteed access to the deep sea bed for exploiting the minerals on reasonable terms and conditions with a security of tenure. The current problem is to determine the basic conditions of exploitation by national States by appropriate arrangements with the international authority while reserving the right of the authority itself to arrange for exploration and exploitation of such resources of the sea. One problem relates to the organizational set-up and the powers of the Assembly and the Council of the proposed international authority. The developing countries apprehend that exploitation of minerals by the big powers on their own who have the necessary technology and financial backing will virtually render infructuous the possibility of exploitation of minerals by the international authority.
There is now substantial consensus not only on the definition of territorial sea and contiguous zone, exclusive economic zone, continental shelf but also as to the respective rights and duties of the coastal States and the international community. The sovereign rights of the coastal States are to be reconciled with the customary right of freedom of navigation of the other States. The right of innocent passage has to be so regulated that the national interests of the coastal States do not suffer any prejudice.
While the thrust of the economic zone is on the exploitation of the living resources of the sea such as fish stocks, that of the continental shelf is on the non-living resources or minerals. The extension of the economic zone to 200 miles excludes the freedom of fishing by other States within such area. Regulations have been suggested in the negotiating instruments with a view to arriving at a reasonable practical solution of such problems.
Another basic problem relates to the effect of the new definition of the continental shelf which may include continental margin areas beyond 200 miles, extending sovereign rights of the coastal States to exploit the sea-bed resources in such areas. What contributions, if any, will the coastal States have to make to the international authority? Are the developing States in a position to make such contributions? The negotiating text provides that the international authority shall determine if and to what extent developing countries shall be obliged to make such payments or contributions.
Another problem relates to artificial islands, installations and structures in the exclusive economic zone and in the continental shelf. The rights of the coastal States to authorise and regulate the construction, operation and use of such artificial islands, installations and structures, inter alia, for economic exploitation of the resources of the sea, are recognised in the negotiating text. A solution is to be made with regard to the exclusive coastal rights in the artificial islands and all resources and other offshore installations, e.g., artificial deep-water ports.
The delimitation of economic zone and continental shelf between adjacent or opposite States raises another problem. The negotiating text suggests settlement by bilateral negotiations and pending such settlement, the principle of median or equidistant line is to be followed. In spite of criticism directed against this principle one fails to see what other reasonable alternative proposal can be suggested as a basis for an international treaty which hopes to achieve wide ratification.
In this connection, I would like to refer to the recent agreement between India and Sri Lanka signed on March 23, 1976 which came into force on May 10, 1976. As a result of this agreement the boundary between India and Sri Lanka in the Gulf of Mannar and the Bay of Bengal was demarcated. It is further provided that wherever there is an overlapping of the exclusive economic zone of the two States, the principle of median line will be followed in the overlapping areas and the boundary will be equidistant from the coast of India and Sri Lanka.
So far high seas are concerned the principle of freedom of navigation coupled with the necessary obligations have been duly provided for. The rights and duties relating to fishing in the high seas are also stipulated. It is further provided that the high seas shall be reserved for peaceful purposes.
An attempt has been made for due adjustment of the respective interest of land-locked States and the transit States. The importance of the issue of access to and from the sea so far as the land-locked States are concerned can hardly be minimized. While no one disputes the right of access to and from the sea of the land-locked States, the problems of the transit States in effectively accommodating the land-locked States are also to be looked into. The means of transport for such accommodation in the transit State may not be adequate. Here again what is really needed for a proper solution is a genuine spirit of accommodation. So far India is concerned there is such accommodation by a transit and trade treaty between India and Nepal. The countries which are most severely affected by this problem are the African coastal and land-locked States.
So far as archipelagos are concerned, the definition of an archipelagic State in the negotiating text excludes oceanic archipelagos of a continental State. It is perhaps difficult to find any logical reason for such exclusion.
On the question of protection and preservation of marine environment the New York Conference Committee has made elaborate regulatory provisions. Pollution of marine environment means the introduction by man, directly or indirectly, of substances or energy, into the marine environment which results or is likely to result in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
It is recognised that States are under an obligation to protect and preserve the marine environment and for that purpose they must evolve adequate environmental policies using the best practicable means at their disposal. National regulations should conform to relevant international standards. It is futile to expect the developing coastal States to compete with the developed coastal States in introducing sufficiently effective regulations for the prevention of marine pollution or the preservation of the marine environment. While the developing State is no doubt under a duty not to cause damage by pollution to other States, similarly the international community is under a duty to assist financially and technologically the poorer nations to enable them to fulfil such obligations. This duty has been recognised and emphasised in the Stockholm Declaration and in the negotiating text.
The types of marine pollution which ought to be minimized include release of toxic, harmful and noxious substances from land-based sources or from atmosphere and by dumping pollutants from vessels and from installations and devices used in the exploitation or exploration of the natural resources of the sea bed and subsoil and also pollution from all other installations and devices operating in marine environment.
Elaborate provisions have been made for marine scientific research in the negotiating text. But negotiations on the question of research in the economic zone and continental shelf encountered difficulties. Should such research depend upon a consent regime or should it suffice if it is subjected to certain obligations to coastal States? The present indications are towards an attempt to accommodate both the conflicting views by distinguishing between resource-oriented research, i.e., research relating to living and non-living resources, and other fundamental research which is subject to treaty obligations. It is hoped that a satisfactory solution will be found in the near future. Provisions for development and transfer of technology are of special importance not only in the areas of high seas but also within the jurisdictional limits of the coastal States.
What is needed is a reasonable accommodation of the interests of both the developing States and the developed States in a friendly spirit and not a posture of confrontation. This is another field of research which our Association ought to look into as a priority project.
The concern of the international community for the protection and preservation of the environment has become a topic of importance. Our Association made a report at the New York conference in 1972. The jurisdictional aspects of the environmental problems raise this question. Which nation or State will have jurisdiction in respect of acts originating outside the territory of a particular State having harmful effects within its territory and vice versa? The delinquent may be the national of a State or its vessel or aircraft. The main emphasis was on Stockholm Principles 21 and 22 which really embody an extension of the rule in Rylands v. Fletcher1 to International Law. It was felt that there should be international action to provide a forum where the offended State can ask for redress against the delinquent State. Such international consensus may be on bilateral, regional or international basis. Identification of acts harmful to the protection and preservation of the environment, formulation of adequate standards for environmental protection, control mechanism and liability enforcement procedures are the current problems engaging the attention of our Association. Priorities are given to air, water and land pollutions in the earth space environment. It has been suggested that the areas of investigations should cover accurate fact assessment, comparative study to draw lessons from different municipal legislations and international remedies for internationally injurious effects. It has also been pointed out that the problem is one of exclusion and not inclusion, and the jurisdictional problems are of prime importance. There is no immediate possibility of an international environmental convention. Enquiry should be directed for preventing conduct on the basis of recognised norms of international law. Technological developments are to be balanced with environmental conservation.
The two most important features of the planet, air and water, lie largely outside national boundaries. Air knows no political boundary and flows freely across the continents. Similarly water, which covers seventy per cent of the surface of the globe, lies largely outside national jurisdiction. Marine environment in particular is deteriorating quickly affecting life on land. For instance, pollution in the Mediterranean, nineteen per cent of which is derived from land-based resources, has become a serious problem. It is said that only an international regime for the Mediterranean can ensure its environmental protection. Environmental aggression can be much more harmful than that caused by actual warfare in terms of economic and social cost. International lawyers have referred to the need for comprehensive agreements for tanker constructions and discharge of pollutants at sea under the auspices of the International Maritime Consultation Organisation. Others have referred to pollution in space and the need for an effective remedy. It is said that there are about 2000 space objects in orbit around the earth which are mostly space junk or space debris and protection against them is not covered by the current international treaties on outer space.
Suggestions have been made that our Association should work inter alia for (i) model international agreements for preventing marine and space pollution, (ii) the study of the legal implications of remote-sensing system which will be used to survey both land masses and oceans without regard for national jurisdiction, (iii) for finding out means for raising funds for preservation of global environment, e.g. international tax or levy, (iv) need for co-ordination of the work of the different committees of our Association dealing with the law of the sea, water resources, law of the space, environment, human rights, etc. There is need for collaboration with the different United Nations agencies, particularly the Food and Agricultural Organisation, jurisdiction of which is said to cover about 160 out of the 200 recommendations of the Stockholm conference.
The main emphasis so far has been on the man-made pollution problems arising out of the operations in industrially and technologically advanced countries. The vital problems affecting the developing and poorer nations of the world have not received any attention in the programme of our Association. Our discussions have mainly centred round implementations of Stockholm Principles 21 and 22 while little or no attention has been given to at least 11 other principles which deal with environmental problems of the developing and poorer sections. The preamble and the principles of Stockholm Declaration clearly define them. Man has the fundamental rights to freedom, equality and adequate conditions of life in an environment of quality which permits a life of dignity and well-being. The protection of environment for present and future generation is a solemn responsibility of the international community. Such protection means that the natural resources of the earth including the air, water, land, flora and fauna must be safeguarded through careful planning and management.
In order to achieve this goal the developing countries should receive priorities. In developing countries most of the environmental problems are caused by underdevelopment. Developed countries suffer from environmental problems which mainly relate to industrialisation and technological development. Basically the environmental problems have different connotations for the rich and the poor nations. It is accordingly provided in the Stockholm Declaration that the industrialised countries should make every effort to reduce the gap between themselves and the developing countries. International co-operation is needed to support the environmental problems of a developing country. Stability of prices and adequate earnings for raw materials and primary commodities are essential to the environmental management of the developing countries since the economic factor as well as ecological processes must be taken into account. Today the world population is 4000 million and it is speculated that a staggering figure of 7000 million will be reached at the turn of this century. The poorer nations are most concerned about the alarming increase. Planned human settlements, e.g. housing, transport, water-supply and sewerage, rural development, family planning and demographic policies for arresting population growth, adequate food production and health problem are among some of the basic problems of the developing countries which require to be solved by collaborative efforts if the fundamental goal of the United Nations environmental programme is to be effectively implemented. The field of investigation of our Association should be extended to cover the immediate problems of the developing countries.
I would like to mention also on one of the most vital areas of discussions at our Conference. These are human rights and fundamental freedoms. It has been said many times in our deliberations that we have passed from the stage of definition to the stage of implementation. Progress has been made in our analytical studies of the implementation procedures both under the general provisions of the United Nations Charter and its specialised agencies as also under the Racial Convention and the two International Covenants. While the Racial Convention is in force, the other two covenants are just introduced. It has been one of the principal objectives of our Association to arouse world opinion for the ratification of the two international covenants. The mechanisms of implementation in all the three international instruments have been studied in depth. There are illuminating reports which point out with precision the problems that confront us in this field. The problems will be examined at our Conference.
There is another aspect of the human rights issue which we shall discuss at our Conference here. This relates to the need for creating public opinion for the promotion of international human rights. Personally, at the present stage of development of the concept I attach more importance to this area of investigation than the mechanism of implementation. It is necessary that we find out adequate means for creating a proper climate for the reception of the ideas by enlightening the people of the world. This has to be done in greater depth in the developing nations, by expounding the meaning and values of these rights and freedoms which are now recognised as part of international law. Universal and regional systems, international, regional and national seminars and teaching at the university level are some of the means which have been suggested. With regard to the programme of such teachings and seminars I would say that to speak about human rights in the abstract is not of much importance. There is no right without responsibility. What is needed is to educate public opinion about the importance of rights as well as the corresponding responsibilities. Failure to fulfil the responsibilities may result in the destruction of the rights. It is for this reason that Articles 29 and 30 of the Universal Declaration of Human Rights emphasise the importance of human duties and responsibilities which must be fulfilled or discharged in order that the human rights and fundamental freedoms may be preserved and not destroyed. Every human being has duties to the community to see that the rights and freedoms are observed, public order maintained and the general welfare in a democratic society is preserved.
Our Indian philosophy teaches two great things. One is faith in oneself and the other is faith in mankind. Swami Vivekananda said:
"Work out the salvation of this land and that of the whole world, each of you thinking that the entire burden is on your shoulders. Carry the light and the life of the Vedanta to every door and rouse up the divinity which is hidden in every soul."
The evolution of the individual into the person is what Vedanta calls the spiritual growth of man. This is the science of man in depth. This is the science of the true self of man. Our scripture Gita states that the roots of mankind are upward whereas the roots of animals and vegetable world are downward. Our Upanishads give us knowledge of human nature. Swami Vivekananda said:
"For a complete civilisation the world is waiting for the treasure to come out of India, waiting for a marvellous spiritual inheritance of the race. The world is waiting for that treasure."
This treasure is summed up in our spiritual ideals of renunciation and service. We renounce irrelevant and transitory things for the eternal and relevant upward roots of Divinity in man. Our scripture says that what God forsakes becomes our food. Similarly those who are affluent and have resources should share with others. This is serving humanity as manifestation of divinity. The great moral in our spiritual philosophy is that which is selfish is immoral and that which is unselfish is moral. The world today is to give greater emphasis on moral values of compassion and co-operation for harmony of humanity.
Before I conclude I would like to express my sincere thanks to Lord Wilberforce, Chairman of the Executive Council, Professor Olmstead, Vice-Chairman, Mr Cuperus, Honorary Treasurer, Professor O'Connell, Director of Studies, Mr Edwards, Secretary-General, Mr Worsley, Secretary and the distinguished members of the Executive Council for their friendship and co-operation during the time I have been the President of the Association. I would also like to thank here the members of the Executive Council of our Indian Branch and in particular Mr B. Sen who has been sincere and steadfast in strengthening the Indian Branch. I conclude by doing the most pleasant duty of congratulating our distinguished colleague Mr Antonio Rodriguez Sastre who has been elected President of our Association for the next term. I wish him success in arousing conscience of the world and not to allow it to rest until humanity irrespective of colour and creed has achieved happiness.
- 1868 LR 3 HL 330.
Return to Text
| 
