During the last phase of the negotiations from 1975–82, Elisabeth Mann Borgese worked on proposals for how the International Seabed Authority could administer the seafloor outside national jurisdiction. Together with the Austrian Ambassador Karl Wolf, Mann Borgese made several suggestions for shaping the operational arm of the authority – the Enterprise – in a way that would enable developing states to partake in seabed activity.

In 1982, the Law of the Sea Treaty was voted for and adopted by the United Nations. This included Part xi that was concerned with the seafloor outside national jurisdiction and the application of the common heritage principle. The functions of the Enterprise were designed to help developing nations undertake exploration and exploitation activities, and through this, the treaty partly secured the common heritage principle in connection to the seabed.

The treaty still needed ratifying, and this process got off to a slow start. Between 1982 and 1994, Elisabeth Mann Borgese contacted politicians and state leaders to try and collect the sixty ratifications necessary to secure the treaty. However, the United States and other industrialised states remained set against it, and eventually a small number of states developed the 1994 'Implementation Agreement' to get them on board. Mann Borgese warned that this agreement would unpick many of the principles that were embedded in Part xi, and would adversely affect the power, rights and design of the International Seabed Authority. Despite this, however, the Implementation Agreement was voted through on 22 July 1994. It destroyed much of what Elisabeth Mann Borgese and her allies had worked for, though the common heritage principle remains inscribed in the original convention to this day.

### **2 The Origins of Mann Borgese's Internationalist Ideals**

Elisabeth Mann Borgese's route into academia was unusual and her position as a woman working alongside men in the 1950s was even more so. As a newlywed housewife, secretarial work was one of the few employment avenues open to her, but she saw that it could be her way into the academic world. As her daughter, Nica Borgese, told me in November 2015, 'I think she was just quick to learn and ambitious and idealistic […], she was not going to remain a secretary'.1

We must also acknowledge the importance of her relationships with older men, which she repeatedly described as having had an enormous impact on her. One of these men was her husband, Giuseppe Antonio Borgese, whose influence lasted long beyond his own death in 1952. In a letter to him, she once wrote: 'Concerning Lehr- und Wanderjahre I am *not yet* content. My opinion is one has to lernen und zu wander all one's life'. And Elisabeth Mann Borgese did indeed go on to learn and wander for the rest of her days. Self-confidence in her own abilities was a vital ingredient for Mann Borgese's success, though almost as important were the opportunities she got to demonstrate these capabilities. As a case in point, Mann Borgese's work with the Committee to Frame a World Constitution in Chicago proved that her abilities went far beyond secretarial work and opened the door for her future career.

The Chicago committee also played a vital role in introducing her to the internationalist ideals that she later attempted to apply to ocean governance. As early as 1948, the committee stated that 'the four elements of life – earth, water, air, energy – are the common property of the human race'. The potential link between water and the common heritage principle was already there, and Mann Borgese would go on to translate the Chicago committee's ideas into practical proposals at the United Nations

The connections Mann Borgese had made in Chicago would ultimately lead to her fellowship at the Center for the Study of Democratic Institutions in Santa Barbara. Robert M Hutchins's discussion-based style of working and the centre's huge *Pacem in Terris* conferences inspired Mann Borgese to organise her own International Ocean Institute in a similar fashion. Some fellows said of Santa Barbara that it was 'Hutchins's Center'. The same could be said about the institution Mann Borgese built in 1972. The International Ocean Institute was Borgese's institute. Hutchins's work was motivated by a deeprooted belief in international cooperation, and Mann Borgese transferred this ideal to the sphere of ocean governance. But to make the leap from world governance to ocean governance, Mann Borgese first had to be introduced to the oceans.

1 Interview with the author, 26 October 2015.

246 Conclusion

### **3 Arvid Pardo and a Meeting of Ideals**

In the narrative about the starting point of unclos iii, Arvid Pardo is usually referred to as 'the Father of the Law of the Sea', while the significant part Elisabeth Mann Borgese played in their collaboration is sometimes overlooked. In this and other ways, Pardo's role in unclos and the nature of his ideals can make him an interesting comparison to Mann Borgese.

Where Mann Borgese was more of an activist, Pardo was a career diplomat. His official status as the Maltese ambassador gave him wide recognition and a level of access to the political arena that Mann Borgese would never have, but his influence dwindled after he lost his position. While Mann Borgese worked unstintingly to keep herself engaged with the convention, their correspondence suggests that Pardo did not make particularly concerted efforts to get reinstated, and in fact it seems like Mann Borgese tried harder to re-affiliate Pardo with a delegation or ngo than he did himself.

Though he had iconic status as the man who had 'kick-started' the Law of the Sea negotiations by giving the right speech at the right point in time, Arvid Pardo was unhappy with the convention's eventual outcome. He remained vocally opinionated about the Law of the Sea in later years, but he does not appear to have taken much direct action after the Seabed Committee's work commenced in 1973. The limited source material available about Pardo makes it difficult to assess his participation accurately, but the research suggests that his ongoing role in unclos iii was more symbolic than proactive. This withdrawal might be explained by a reluctance to adapt. The outcome of the Law of the Sea Convention was not what Arvid Pardo had envisioned and perhaps he was less willing than Mann Borgese to adjust his vision to the changing political circumstances. So although he is widely recognised as the 'Father of the Law of the Sea', this is not really true, since he ultimately disliked and possibly even abandoned his 'child'.

Others, though, saw the possibilities in Arvid Pardo's iconic status, and the United Nations invited him to speak at the closing ceremony in 1982 after the convention had been voted for – underlining the sense of finality by letting the 'kick-starter' of the whole endeavour close it. Mann Borgese, too, tried to capitalise on his symbolic value several times during the course of the negotiations – for example when she tried to convince Dom Mintoff to invite Arvid Pardo into the Maltese delegation (and her along with him), or when she sited the International Ocean Institute on Malta in the hopes that it might evolve into the International Seabed Authority. Mann Borgese understood that Pardo's symbolic role made Malta a likely candidate to host a United Nations institution for ocean governance, and her eye for an opportunity was much better than that of the Maltese government, who hesitated too long to make their pitch and missed out.

Apart from comparing Pardo's role in the convention to that of Mann Borgese, other aspects of his biography are essential to understanding his idealistic goals, and this too makes him an interesting parallel to Mann Borgese. In Pardo's case, he had been directly involved in World War ii and it had affected him deeply. Pardo's idealism was best summed up in a small biographical note about him, where the author stated, 'The diverse experiences of Arvid Pardo has been his willingness to act upon his opposition to war in the pursuit of peace'.2

While Mann Borgese had left Europe before the outbreak of war, the rise of fascism had forced both her own family and many people she knew (including her future husband) into exile. For both Elisabeth Mann Borgese and Arvid Pardo, their personal backgrounds played a part in their visions for ocean governance. Both wanted to incorporate a new approach to international justice and resource distribution, and this was rooted in the conviction that collaboration was better than conflict, and that justice was necessary to prevent war.

### **4 The Time Was Ripe – Political and Technological Development in the Mid-Twentieth Century**

With its enthusiasm for new technologies, progress and the possibilities of the uncharted territory on the seafloor, the mid-twentieth century was a breeding ground for ideas around different forms of governance. In 1991, Mann Borgese wrote about the role of technology in society and politics: 'Technology is a tool which simply reinforces and magnifies the consequences of the existing social and economic order'.3 This is an accurate description of how unclos iii came about, though the notion is not absolutely correct – since the relationship between technological progress and society goes both ways. Technology shapes society but society also shapes technology.

The 1960s were characterised by a strong, sometimes overestimated belief in technological progress, and this was especially true of deep sea mining technology. Discussions about the governance of the seabed outside national jurisdiction were fuelled largely by the notion that imminent developments in underwater mining would soon bring inaccessible spaces within reach, and

2 ms-2-744, Box 186, Folder 4, Ambassador Arvid Pardo.

3 Chircop, 'Elisabeth Mann Borgese's humanist conception', 114.

248 Conclusion

this also drove enthusiasm for applying the common heritage principle to the seafloor. Clearly, the industrialised countries (which were also the former colonial powers) would develop the relevant technology first and the idea of sharing it with developing nations became a stumbling block for agreement at unclos iii. However, when it became apparent in the 1970s that underwater mining technology for the deep seabed was more futuristic than realistic, interest in the seafloor and the common heritage principle declined, leading Karl Wolf to write to Mann Borgese 'Kein Mensch interessiert sich für die Area'.

Another factor that drove the unclos negotiations was the general reestablishment of world orders. After World War ii, the world in general began to rethink governance on a grand scale. None of the people involved with the radical developments in ocean or world governance at that time possessed an unusual amount of visionary power, it was just that the discussions they were involved in had sprung out of the extraordinary social and political developments during the first half of the twentieth century. This is especially apparent when we consider some of the attempts to re-shape world governance that emerged in the post-war years, such as the World Federalist Movement, for example. We might recall that one of Mann Borgese's tasks during her early years in Chicago was to review all kinds of proposals for world constitutions. These initiatives emerged independently of one another, but all had a similar goal: to propose a new order for a world that obviously needed one, especially in the light of humanity's latest and most deadly technological development. The Chicago Committee to Frame a World Constitution itself had been founded as a direct response to the atomic threat and was the brainchild of someone who had helped create that threat in the first place. Humanity's ability to split the atom made the need for a more united world abundantly apparent, and the existence of such a weapon made it necessary to rethink conflict and conflict management on a global scale.

The atomic threat was also responsible for the seemingly sudden need in 1967 to reserve the seafloor for peaceful purposes. While Pardo's speech is often pinpointed as a starting point for a completely new way of dealing with international law-making (because he introduced the principle of the common heritage of mankind), in reality the codification of the Law of the Sea had been a long and creeping process that was tightly bound up with the fact that humanity had started to travel further and deeper into the sea than ever before. With this continuing exploration, weaponry stations on the seafloor were beginning to become a potential tool of warfare, and many in the international community were keen to prevent this.

In this atmosphere of future possibilities and a growing need for legislation, the Maltese ambassador's speech was more like another step along the way towards the Law of the Sea, as opposed to the start of the journey. His suggestion was a response to the need to define governance of an area that could become important in the future. Even the principle Pardo introduced to the discussion was not inherently new. The Outer Space Treaty of 1967 had already coined the term 'province of mankind', and although the term is different, the principle behind it is comparable to that of 'common heritage'. It states that 'exploration' should be 'carried out for the benefit and in the interests of all countries […]'. Likewise, the Chicago committee had introduced a similar idea in their draft for a world constitution, where they wrote that 'The four elements of life – earth, water, air, energy – are the common property of the human race'. Though the terms varied between 'property', 'province' and 'heritage', their meanings were closely related.

Developments in real-world politics also underlined the need to rethink world governance. In the case of the Law of the Sea, one such event was the Truman declaration in September 1945. It showed that while Elisabeth Mann Borgese and the Chicago committee were grappling with world governance at a conceptual level, ocean governance on the other hand was already up for discussion. The United States' attempts to secure claims offshore with the Truman declaration triggered other nation states to follow their lead, and the international community had to act before individual states ended up taking the matter entirely into their own hands. These developments showed that clarifying maritime boundaries would be vital to maintaining a stable world order, while the shadow of the Cold War and the ever-present atomic threat made the need even more pressing. Since the international community was not overtly interested in open conflict, these issues had to be solved through diplomacy.

Fluctuations in the balance of world power further complicated the negotiations. The decolonisation process had divided the world into developed and developing countries. For an increasing number of post-colonial developing states, unclos iii was the first time they could enter the international arena, and the Group of 77 is an excellent example of the rising power of developing states through necessary collaboration. In his speech, Arvid Pardo had mentioned the possibility of a 'race into the deep' – in which industrialised countries would grab seabed resources for themselves before developing states had the chance to invent the requisite technology – and this highlighted the inherent unfairness embedded in the whole system. It is no surprise that nations in the Group of 77 favoured applying the common heritage principle to the seafloor outside national jurisdiction, since this system of ocean governance would help them catch up in terms of development and balance out some of the injustice. However, the developing countries suffered an important defeat right in the very first session in 1973, when the decision to work with a consensus system instead of a voting system negated their power in numbers. Instead, compromises had to be found, but Elisabeth Mann Borgese and her allies still hoped to level out the technological superiority of the industrialised states by implementing the principle of common heritage of mankind.

#### **5 Common Heritage or Common Property**

Elisabeth Mann Borgese entered the negotiations on ocean governance with concrete suggestions that she hoped would help her seed a little piece of internationalism into the Law of the Sea. Her aim was to fill out the common heritage principle with detailed meaning and then to find ways of applying it to the real-life political situation. The principle itself went through an interesting transformation during unclos. In the 1970s, the way Mann Borgese intended to apply it brought the principle closer to what the Chicago committee had called the 'common property' of mankind. This was because she wanted it to level out the economic injustice in the world order, and in order to do this, the area outside national jurisdiction had to generate revenue that could be distributed.

Mann Borgese's drafts for ocean governance show that the word 'heritage' was used rather loosely in relation to the common heritage principle. This is unsurprising when we consider why the seabed was reserved for the common heritage of mankind in the first place. Discussions on the subject had arisen because people in the 1960s believed geologist John Mero's optimistic predictions that the resources on the seafloor could soon be exploited, and so the international community was mostly interested in the question of 'rights of access' and 'means of utilisation'. For Mann Borgese too, her view of the seafloor revolved primarily around how to utilise such a store of resources that had no 'natural' owner, and how access to these riches could be shared out fairly. According to Mann Borgese's way of thinking, this meant giving every human on Earth the chance to benefit from the resources of the seabed.

In practice, the question of 'rights' and 'means' was about which states would appropriate or utilise the resources and how they would do it. Would the industrialised states be able to keep these resources all to themselves, or would the developing nations get to benefit from them too? With this in mind, Mann Borgese allied herself with those states who had the greatest interest in a very broad application of the common heritage concept – those without any expertise in utilising marine minerals who were interested in making rules that would secure access for them despite the fact they lacked the necessary technology. In a strict reading of Mann Borgese's suggestion to solve the issue of unequal access to resources, she proposed compelling industrialised states to go into partnership with developing countries if they wanted to carry out deep sea mining activities in the area outside national jurisdiction. Through this, developing countries could gain technological knowledge through cooperation.

Less in focus during the early discussions about the common heritage principle was the question of what the term 'heritage' meant in terms of reserving and protecting areas for future generations. This was barely discussed at the convention. Articles 192–237 deal with issues of pollution, but the section is vague on exact rules or regulations. While Mann Borgese discussed the environmental aspects of unclos with her students at Dalhousie University, this perspective was mostly absent from the convention itself – and particularly from Part xi.4 A future study of this aspect of unclos would be interesting, and a good starting point might be one of the treaty's opening statements, in which the parties state that the convention shall 'recognize […] the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment'.5

Elisabeth Mann Borgese's ambitions for the area outside national jurisdiction in the 1970s were mainly driven by a fascination with what might be technologically possible when it came to exploiting underwater resources. This attitude corresponded with Arvid Pardo's futuristic vision as laid out in his 1967 speech. For the pioneers of the common heritage concept, at the core of ocean governance was peace, justice and an opportunity to help level out economic injustice in the world. They could do this by favouring developing states through an International Seabed Authority that would redistribute revenue and force industrialised states to collaborate on seabed exploitation. In Mann Borgese's case, this went right back to the concept of 'common property of the human race' that she had worked with on the Chicago committee.

### **6 The Idea in Action through Institution-Building**

During unclos, Mann Borgese's work was characterised by her constant ability to change course and find new solutions if necessary. She was not afraid to downsize her ideal in line with changing political realities that made it

4 The Ocean Yearbook publications 11 and onwards would address the issue of the protection of the environment.

5 Bernaerts, *Bernaerts' Guide, 153 – Preamble to the United Nations Convention on the Law of the Sea.*

252 Conclusion

increasingly apparent how unrealistic her dreams of a holistic ocean regime really were. Mann Borgese adapted her methods and the ideal itself – which was to insert internationalism into ocean governance – to the challenges that arose during the negotiation process. The outcome was not what she had hoped for, and Mann Borgese had to cut her losses to some extent, but a fraction of her ideal survived all the same.

Throughout unclos, Elisabeth Mann Borgese used several different institutions (or attempted to use them) to try and influence decision-making processes at the negotiations. She used existing channels into the convention in the form of the Maltese and Austrian delegations, but also established new platforms and institutions – like the *Pacem in Maribus* convocations and the International Ocean Institute.

Initially, Mann Borgese founded the International Ocean Institute in the hopes that it would evolve into a United Nations institution that would govern the world oceans. In the late 1960s and early 1970s, Mann Borgese could not know the future shape and form of this institution, which at the time was referred to as 'international machinery' to govern the seafloor, but judging from her suggestions in 'The Ocean Regime', she hoped it would be an overarching institution responsible for all activities in the oceans, not just the seafloor. Possibly it could even extend its capabilities to world governance.

We know today that the International Seabed Authority is the real-world version of what Elisabeth Mann Borgese envisioned in 'The Ocean Regime', though on a much smaller scale than she proposed. The International Seabed Authority is not located in Malta and it does not have any overarching functions other than to administer the seafloor outside national jurisdiction. Since Mann Borgese's International Ocean Institute did not end up evolving into the seabed authority as anticipated, its tasks and purpose also changed accordingly over time, and when the negotiations started in 1973, Mann Borgese was quick to give herself a way into the convention by adapting the ioi into a nongovernmental organisation.

After it became apparent early on in unclos iii that ngo s would struggle to influence the negotiation process, Elisabeth Mann Borgese solved the problem by joining the Austrian delegation. With the Austrians she had a platform from which she could once again directly influence negotiation processes, send in drafts and discuss paragraphs. An additional advantage was that Jens Evensen, who played a prominent role in the drafting committee, and Karl Wolf, the head of the Austrian delegation, were both based in Oslo. Although there is no direct proof that this gave them easier access to an important policy maker in the form of Evensen, we do know that Mann Borgese and Wolf were invited to Evensen's influential intersessional meetings on several occasions.

Even in terms of her own workplace, Mann Borgese made changes during the period of her involvement with the Law of the Sea. The first *Pacem in Maribus* conference was organised by the Center for the Study of Democratic Institutions in Santa Barbara, but her attempts to engage the centre further in the ocean endeavour failed because the other fellows were not willing to follow her lead. When the centre began to fall apart, she actively sought a new position at Dalhousie University in Halifax, spending the rest of her life there and opening another branch of the International Ocean Institute so that she could remain closely involved with the institution that she had founded.

Mann Borgese's various ways into unclos over the years show that she changed location and affiliation when necessary in order to achieve her goal of inserting internationalist ideas into the convention. And she was flexible with respect to her ideals too, downsizing her vision in line with social, political and diplomatic changes. We can see this from the differences in scale between her draft of 'The Ocean Regime' – in which the common heritage principle encompasses the entire ocean space – and its later incarnations. First, it was scaled back and limited to the International Seabed Authority and later to the authority's executive branch – the Enterprise. Even in this smaller form, it would still give developing nations a chance to partake in the exploitation of marine minerals.

Whenever her current strategy did not pay off, or whenever the circumstances shifted, Elisabeth Mann Borgese developed a new plan – a new 'appeal to act now'. She was not and could never be a delegate for any one specific camp or cause, so it is not surprising that she changed affiliations several times during unclos iii. Her involvement with the law-making process was never static and neither was her strategy. Only her aim remained fixed – to insert even just a microscopic trace of her internationalist ideals into ocean governance.

#### **7 Elisabeth Mann Borgese's Legacy**

What was left after the 1994 Implementation Agreement? The last chapter of this book discussed the amendment period between 1982 and 1994, during which time Mann Borgese tried to keep the provisions of Part xi intact in an effort to protect the common heritage principle. Despite her efforts, she was ultimately overruled by those who felt the convention could only be effective if these provisions were altered in order to get the United States and other industrialised states to sign and ratify the treaty.

Mann Borgese's own assessment directly after the Implementation Agreement had been approved was that in practice the common heritage 254 Conclusion

principle was no longer effective. It is possible that she moderated this position in later years in response to fresh developments, but this remains to be studied more closely. As ever, Elisabeth Mann Borgese adapted to a new situation and pushed on. On the basis of the material examined for this book, we can see that her subsequent efforts to repair the damage included using her own International Ocean Institute's training programmes to implement technology transfer to developing nations.

Indeed, if one were to pinpoint a definitive legacy for Elisabeth Mann Borgese, it would be the International Ocean Institute on Malta, with its sister institutions in Halifax and in other places around the world. Even today, the International Ocean Institute still holds annual training courses for state officials and scholars from developing nations working in fields that are related to ocean or coastal management. In many respects, the evolution of the International Ocean Institute reflects Elisabeth Mann Borgese's own ability to adapt. The institution started out as the 'concrete beginning' of the future International Seabed Authority and the ocean regime, and served as a think tank organising *Pacem in Maribus* during the preparation phase prior to unclos iii. It became an ngo to give Mann Borgese a platform at unclos when she was struggling to join a national delegation, and finally it turned into a training facility for scholars from developing nations. In its current incarnation, it fills a gap that was originally supposed to be occupied by the International Seabed Authority before it was compromised due to the 1994 Implementation Agreement, in that it practises technology transfer to developing nations.

It is relatively simple to assess Mann Borgese's legacy in terms of what she did outside of unclos, but more difficult to quantify her direct impact on the negotiations. Without knowing the specifics of how other individuals and groups operated, it is tricky to estimate the extent of Elisabeth Mann Borgese's influence. We know that she was in contact with influential key actors at the convention, but whether her proposals were heard or just resonated with other people's is hard to determine without having studied the ideas set out by other individuals. To investigate her effectiveness more closely would require a case study that aimed to follow one or more specific initiatives through the entire process. One obvious starting point could be to investigate the Paul Engo case, where provisions were secretly changed in favour of developing states. If a closer investigation of this issue were to show that Mann Borgese was involved, this could give us an indication of her influence above and beyond her proposals.

This book has followed her ideals, her proposals and ideas, and the strategies she employed to try and apply her ideal of internationalism to ocean governance. We have seen that she did this through various channels: by founding institutions, organising conferences, joining delegations, writing reports and delivering speeches. We have also seen that she was able to ally herself with key people in the negotiation processes, like Jens Evensen, Shirley Amerasinghe and many others. Dalhousie University Archive holds an abundance of letters to important delegates at the United Nations, many of whom Elisabeth Mann Borgese was on a first-name basis with. These letters provide possible threads that could be followed further to get a more precise picture of her involvement and potential impact on decision-making in the Law of the Sea negotiations.

Today we know that Part xi, together with the Implementation Agreement of the Law of the Sea Convention, did not turn out as Mann Borgese and Pardo had envisioned in the 1970s. To what extent the common heritage principle is still a vital part of the Law of the Sea and whether it has any function or not remains to be seen. Nevertheless, we can only guess at whether common heritage would have been applied in any shape or form to the seafloor outside national jurisdiction without Arvid Pardo and Elisabeth Mann Borgese.

The Leverings from the Neptune Group criticised Mann Borgese for being an ivory tower idealist, but her path through the convention contradicts this argument. An ivory tower idealist would not have adapted and changed course as Mann Borgese did several times during the negotiation process. Perhaps the Leverings were so critical of Mann Borgese's actions because they fought for different causes. The Leverings wanted to aid the consensus-seeking process, while Mann Borgese's aim was to contribute concrete proposals to the negotiation process. In some cases the Leverings may have been justified in objecting to her methods. Her sometimes controversial proposals had the potential to disrupt consensus instead of aiding it, particularly when she re-introduced ideas that had already been rejected – like the proposal of a joint venture compromise that would never be accepted by the United States and eventually caused a stalemate when provisions were secretly changed in favour of developing countries.

Inspired by Arvid Pardo, Mann Borgese was perhaps overly enthusiastic about the abundance of mineral resources on the seafloor, without taking into account that they might be out of reach. However, this was a flaw she shared with many of the delegates at unclos iii. Her enthusiasm for the implementation of the common heritage principle and her lobbying efforts to recruit allies were also unrealistic at times. Perhaps she believed that one had to set ambitious goals in order to achieve even a tiny proportion of them, but this strategy can be counterproductive, and it is possible that her overly ambitious proposals sometimes disrupted her cause more than they helped her reach her aims. Nevertheless, she left an impressive record of proposals, papers, speeches, and drafts – not to forget the networks she built with influential people during the negotiations and the institutions she founded to enhance and further her vision of the future of ocean governance.

### **8 Epilogue – The Future of Ocean Governance – What Is Next?**

This final section could easily be the beginning of a new book. 'emb 2.0 – Elisabeth Mann Borgese's post-mortem role in the future of ocean governance'. Her proposals, especially 'The Ocean Regime', addressed issues that the United Nations is still grappling with today. This has to do with the fact that, decades after it came into force, the Law of the Sea Treaty remains a legal document in progress – not because the law text itself is unfinished, but because the delegates at unclos iii wrote many of the Articles based on imagined future developments, so new instruments and agreements are periodically added to address fresh challenges.

Many of the technologies Elisabeth Mann Borgese and others envisioned in the 1960s and 70s have not been realised as they anticipated. This is no surprise, since it is impossible to predict the future. But this in turn means that a number of the Articles that were written so long ago are only now (and only gradually) being filled with meaning. In some cases, their effectiveness is just beginning to be tested, while in other cases this may happen in the future – or perhaps never.

A good example of an area in which the Law of the Sea is still transforming and adapting is the ongoing bbnj conference at the United Nations. bbnj is an abbreviation for the 'Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction'.6 Though this may sound complicated, what it means is that United Nations delegates have called for a conference to create additional rules and to clarify existing provisions for the area outside national jurisdiction.7 This area includes the deep seabed that was of such great interest for Elisabeth Mann Borgese. The aim of the bbnj conference is to make rules that will protect the environment in areas outside national jurisdiction and to make additional rules for marine genetic resources – meaning

6 The full title: Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (General Assembly resolution 72/249).

7 In UN jargon this is called an 'international legally binding instrument' under unclos.

anything from microbes to other living things in this area. But why were marine genetic resources not included in the Law of the Sea Treaty in the first place? Through this book we have seen that the seafloor and its resources were discussed at length and with vigour during unclos iii, but the main focus in the 1970s was on the resources on and under the seafloor. Even the common heritage of mankind proposal was primarily concerned with the just distribution of mining rights and economic benefits. The ecosystem itself and the threat human activity could pose to it were not yet perceived as major issues, and the main concern was to agree on how to use the oceans, not how to protect them.

The Law of the Sea Treaty was the child of a different era – the second half of the twentieth century. 2021 marked the first year of the 'United Nations Decade of Ocean Science for Sustainable Development (2021–2030)'8 and much has changed. Human activity in the ocean and its consequences – overfishing, over-acidification, coral bleaching and habitat loss to name just a few – have pushed the issue of how to protect the marine environment high up the agenda. At the same time, industrial use of the ocean is increasing. Some of the existing provisions have to be adjusted in order to meet today's challenges and this is what the bbnj aims to do.

We know that the delegates at unclos iii were not blind to the uncertainty of future developments. The International Seabed Authority was set up in a flexible way with the Prep Com as an insurance against an uncertain future. And even back when Elisabeth Mann Borgese wrote 'The Ocean Regime' she already had the possibility of change in mind. Her first visions for ocean governance were much more 'holistic' and internationalist than those that later went into the Law of the Sea Treaty, but she always thought big. In her first draft she intentionally left a kind of loophole, designing the ocean regime in such a way that it could transform into a world regime. She did this firstly because she came from a world governance background and had a deeply rooted conviction that unity was better than nationalism, and secondly because she was convinced that everything in the ocean and also in the world at large was interconnected – and that only a governance system that encompassed the entire planet could meet the challenges the world faced both in her own time and in the future.

These ideas are similar to what today is termed an 'ecosystem approach', which is also being discussed at the bbnj conferences.9 Ecosystem approaches

8 '2021–2030 United Nations Decade of Ocean Science for Sustainable Development', Ocean Decade, unesco 2019, 30 September 2021, https://www.oceandecade.org/.

9 *See for example* Vito De Lucia, The bbnj negotiations and ecosystem governance in the arctic, Marine Policy, 2019, https://doi.org/10.1016/j.marpol.2019.103756.

258 Conclusion

call for a more holistic world governance system to regulate human footprints on our planet in the light of one of the biggest challenges of our time: the climate crisis. This might seem as lofty and unrealistic as 'The Ocean Regime' did in the 1970s, but perhaps elements of the ideal of a unified Earth System Government can be adapted into methods for governing large, international areas like the oceans. This suggests that Elisabeth Mann Borgese's ideas are still relevant today. It might be interesting to return to several of these earlier proposals with the current situation in mind. One could try and assess whether some of the challenges the bbnj conferences (and future ocean governance negotiations) are trying to solve have already been pondered by their twentieth-century predecessors, and whether we can learn from the ideas, pitfalls, miscalculations and problems of these earlier negotiations.

The Law of the Sea Treaty contains the provisions and ideas that survived the negotiation process, but a lot was lost on the way. I found that many seemingly sound proposals never made it into the law text – often not because the idea was bad, but because they fell victim to political trade-offs or because the timing was not right. Therefore, it is interesting to examine the negotiation process by following the progress of individual ideas such as Mann Borgese's. We can see how the process affected these ideas, illuminating them and prompting adaptations and alternatives. Perhaps some of the ideas that came out of unclos iii are a better fit for tackling today's challenges than for those of the time.

Apart from everything else, Elisabeth Mann Borgese's story also proves that one needs a certain degree of persistence and flexibility to stay afloat in an international process like unclos iii. Elisabeth Mann Borgese knew that her ideas were often seen as idealistic and even utopian, but she also understood that idealism could be much more nuanced and practical than that. As she stated in 1999, she believed that the idealists of today are the realists of tomorrow. Though she remained a lifelong idealist at heart, her adaptability and her willingness to downsize and rearrange her ideas show that she was a realist in practice.

figure 6 Elisabeth Mann Borgese in Nova Scotia Crystal Crescent Beach, December 25, 2000 monacensia literaturarchiv und bibliothek münchen, emb f 29 photo: nica borgese

### **Archival Material**

### **Dalhousie University Archive – Elisabeth Mann Borgese Fonds**

### *Elisabeth Mann Borgese Fonds, ms-2-744, Dalhousie University Archives and Special Collections, Halifax, Canada*

ms-2-744, Box 16, Folder 19 ms-2-744, Box 43, Folder 17 ms-2-733, Box 43, Folder 46 ms-2-744, Box 43, Folder 48 ms-2-744, Box 43, Folder 49 ms-2-744, Box 43, Folder 54 ms-2-744, Box 47, Folder 6 ms-2-744, Box 52, Folder 9 ms-2-744, Box 62, Folder 8 ms-2-744, Box 63, Folder 1 ms-2-744, Box 84, Folder 12 ms-2-744, Box 85, Folder 17 ms-2-744, Box 87, Folder 4 ms-2-744, Box 89, Folder 18 ms-2-744, Box 94, Folder 1 ms-2-744, Box 101, Folder 1 ms-2-744, Box 108, Folder 1 ms-2-744, Box 114, Folder 7 ms-2-744, Box 114, Folder 8 ms-2-744, Box 114, Folder 19 ms-2-744, Box 120, Folder 25 ms-2-744, Box 121, Folder 18 ms-2-744, Box 125, Folder 2 ms-2-744, Box 125, Folder 3 ms-2-744, Box 132, Folder 1 ms-2-744, Box 132, Folder 32 ms-2-744, Box 135, Folder 22 ms-2-744, Box 139, Folder 16 ms-2-744, Box 145, Folder 11 ms-2-744, Box 147, Folder 1 ms-2-744, Box 175, Folder 21 ms-2-744, Box 176, Folder 12 ms-2-744, Box 176, Folder 13

ms-2-744, Box 186, Folder 4 ms-2-744, Box 208, Folder 2 ms-2-744, Box 210, Folder 4 ms-2-744, Box 210, Folder 14 ms-2-744, Box 218, Folder 33 ms-2-744, Box 235, Folder 4 ms-2-744, Box 236, Folder 11 ms-2-744, Box 276, Folder 1 ms-2-744, Box 323, Folder 18 ms-2-744, Box 345, Folder 4 ms-2-744, Box 355, Folder 24 ms-2-744, Box 398, Folder 15

#### **Harry S. Truman Presidential Library & Museum**

#### **imo International Maritime Law Institute – Pardo Archives**

Box: Personal Correspondences & Materials

pr-Box: Tributes

pr-Box: Tributes, Feature, 47, 1990

### **Monacensia Literaturarchiv, Nachl. Elisabeth Mann Borgese, emb, München, Germany**

emb b4 emb b3 Images emb f22 emb f29 emb f179 emb f203

### **Nica Borgese Private Collection Milano**

Nica Borgese, Private Collection, Milano, Italy. nb-Folder 5 Britannica ii, Dec, 1963-, May 20, 1964

### **Thomas Mann Archiv, Zürich, Switzerland**

b-iii.17.eins-1 b-iii.17-kenn-1

```
b-iii.17-mann-110
b.iii.17-mann-126
b-iii.17-mann-144
```
### **United Nations Archive New York City**

Office of the Secretary-General Law of the Sea Conference Records 1973–1983, United Nations Archives & Record Management Section, New York City, United States of America.

Office of the Secretary-General Law of the Sea Conference Records 1973–1983.

S-0571-0013

S-0289-0009-36

#### **United Nations Resolutions, Documents, Statements, Treaties**

#### *General Assembly Resolutions*

*resources in the interests of mankind, and convening of the Third United Nations Conference on the Law of the Sea (A/9278)*, ga res 3067 (xxviii), 16 November 1973.

United Nations, General Assembly Resolution, a/res/48/263, *Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982*, a/res/48/263, 17 August 1994, available at: http://undocs.org/ A/RES/48/263.

### *United Nations Documents*

#### *Statements and Speeches*

### **Treaties**

*1958 Convention on the High Seas*, Geneva, 29 April 1958. 450 unts 11 (entered into force 30 September 1962). United Nations, *Treaty Series*, vol. 450, p. 11, available at: https:// treaties.un.org/doc/Treaties/1964/06/19640610%2002-10%20AM/Ch\_XXI\_01\_2\_3\_4 \_5p.pdf.

### *US Congressional Record*

113 Cong. Rec. H12681 (daily ed. 28 September 1967) (statement of Rep. Hall).

#### **Other Published Sources**

Andert, Karin. *Monika Mann. Eine Biographie.* Hamburg: mareverlag, 2010.

Vislie, Ingolf. *Jens Evensen. Havet, oljen og retten.* Stamsund: Orkana forlag as, 2017.

### **Webpages**

### **Index**

Albert Gue ́rard 28 Alexander Yankov 87 Alexanderplatz prison, Berlin 73 ao Adede 167 arms race 119 Arvid Pardo 66, 86, 129, 130, 233, 246–247 Arvid Pardo, life 72–75 Attard Kingswell 126, 127 Aubrey H Whitelaw 63 Aurelio Peccei 98 Bernardo Attolicio 73 Canada 48 cannon shot rule 3, 5, 43 Caracas 125, 137, 153, 154, 157, 158, 186 Center for the Study of Democratic Institutions think tank 86–90 Charles H McIlwain 28 Charles Vella 87 Chicago 18, 24 Chris Pinto 209 Clare Luke 96 climate change 27 Club of Rome 98, 146 codification of international law 43–45 Committee of Experts for the Progressive Codification of International Law 44 International Law Commission (ilc) 52 The Hague Codification Conference 43 The Hague Peace Conference 43 Cold War Atomic Age 25, 28, 151 atomic bomb 25 atomic threat 248, 249 Bulletin of Atomic Scientists 26–27 Doomsday Clock 27 hydrogen bomb 26 Manhattan Project 25–26 Truman administration 26 colonialism post-colonial developing countries 185 communism 30, 34 communist internationalism 156 Conference of Marine Resources 52

consensus. *See* Gentelman's Agreement Conservation of the Living Resources of the High Seas 54 continental shelf 46, 47, 56 Convention on the Continental Shelf 54 Convention on the Territorial Sea 54, 121 cosmopolitanism 112–113 Dagmar Julin 72 deep ocean 66 developing nations. *See* postcolonialism dolphins as sheepdogs 118 Dom Mintoff 126, 128, 174 Draft Ocean Space Treaty 117 Elisabeth Mann Borgese 1–4, 34–36, 63, 86, 129, 184–186, 201–203, 243–245 Elisabeth Mann Borgese, early life 17–19 Encyclopaedia Britannica 37 environment 251, 256 biodiversity 256 genetic resources 256 marine environment 251 maritime pollution 92 Erich Kahler 28 Euratom Treaty 111 Europe 18, 236 european unity 33 europeans 28 European Coal and Steel Community (ecsc) 110 *feminist theory* 22–23 *Ascent of Woman* 22 Fiesole, Florence Italy 18 First Committee 186 *See*International Seabed Authority First United Nations Conference on Trade and Development (unctad i) 152 Food and Agriculture Organization 52, 92

Ford Foundation 34, 35, 36, 139 Frank Njenga 235 freedom of fishing 55 fishing and conservation of the living resources 55 fishing zone 58

freedom of navigation 55 freedom to fly over the high seas 55 freedom to lay submarine cables and pipelines 55 Geoffrey Philip Glasby 67 Gilbert Winham 201 Giuseppe Antonio Borgese 19–24, 28 governance concepts common heritag of mankind, Pardo's principle 105–106 common heritage of mankind 6, 31, 65, 71, 72, 76, 81 common property 77, 111 common property of mankind 107, 109 common property principle 106–107 communal freedom 43 Draft Ocean Space Treaty 120, 125 holistic ocean regime 111–115, 123 International Maritime Assembly 113 International Ocean Space Institutions 123, 125 *mare clausum* 41 *mare clausum vs. mare liberum* 45 *mare liberum* 41 sovereign claims 43, 45 Trustee of the Common Heritage 191 governance principles.  *See* mare liberum idealism 246–247, 255 immigration 17–19 Implementation Agreement, 1994 239, 240–242

industrial nations 102, 122, 152, 155, 185, 188, 189, 193, 194, 214 institutions Center for the Study of Democratic Institutions 36, 38–24, 142, 253 Chicago Committee to Frame a World Constitution 24–27, 31 Committee to Frame a World Constitution 243 Dalhousie University 201, 203 University of Chicago 25 University of Malta 135 Woodrow Wilson College 179 international conferences Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction 256 International Technical Conference on the Conservation of the Living Resources of the Sea 52 *Pacem in Maribus* 90, 98, 145 Pacem in Maribus i 87, 146 Pacem in Maribus ii 131 *Pacem in Terris* 63, 86, 145 International Labour Organization 72, 92 International Maritime Organization 92 International Ocean Institute 137, 138, 140, 172, 177, 180, 182, 202, 252 Training Programme 206, 242 International Ocean Institute at Dalhousie University 206 International Seabed Authority 127, 168, 169, 171, 177, 182, 186, 217, 252 joint venture 190, 191 operational arm of the International Seabed Authority 233 parallel system 187, 188, 192, 193, 194 Preparatory Commission 225, 226, 229 single system 191 the Enterprise 186, 188, 192 internationalism 244–245 *See* cosmopolitanism ideology 156 internationalist ideals 243 Jamaica 170, 171, 179 Jean Buttigieg 171

Jens Evensen 190 John Mero 67

#### Index 281

John Selden. *See* mare clausum Joseph C Grew 47 Karl Wolf 162, 183, 203, 218 Katia Mann 34, 145 Law of the Sea 52, 190, 203, 205, 215, 220, 225 Law of the Sea Treaty 205, 210, 212, 241 exclusive economic zone 157 Implementation Agreement 241 limits of the continental shelf 157 Preamble to the Convention 218 territorial sea 53–59, 157 Leigh Ratiner 222, 223 Leo Szilard 25 Lyndon B Johnson 76 Malta 171, 221, 246, 252 maritime boundaries 53, 72, 249 McCarthy era 34 Mexico 48 Mortimer J Adler 28, 37 Munich 17 negotiation groups 160–164 Coastals 162 Evensen Group 163 Friends of the President 163 Gang of Five 161 Group of 77 174, 189, 191, 215 Group of Landlocked and Geographically Disadvantaged States 183, 193, 196 Land Based Producers 162 Land Locked States and Geographically Disadvantaged States' (ll/gds) 162 Leopard Group 161 Margineers 162 The Good Samaritans 224 New International Economic Order (nieo) 153, 192 New York 93, 125, 158 Non-Aligned Nations 171 nongovernmental institutions 182, 252 *See* International Ocean Institute Neptune Group 166, 255 Norman Cousins 93 North West Atlantic Fisheries Convention (nwafc) 49

ocean governance concept 100–104, 113–115 Ocean Regime Headquarters 135, 136 Mediterranean institute 137 *oceanography, history of* 67–69 *Albatross* 68 Carnegie expedition 68 Challenger expedition 69 John Murray expedition 68 *Oceanographer, research vessel* 76 Organization of American States (oas) 52 Part xi 195, 205, 217, 232 the Area 185, 186, 187, 190, 191 Paul Engo 196, 199 postcolonialism 151–153 developing nations 139, 141 developing nations, developing states 82 developing states 188 developing states 102, 140 global north 156 global south 156 Group of 77 155 industrialised nations 151 industrialised states 102, 168 Joint Declaration of the Developing Countries 152 ratification 233, 235, 243 Red Cross 74 Regina Coeli prison, Rome 73 resources 50–52, 66–72, 105 deep sea mining 233, 240 marine manganese deposits 67 marine minerals 64, 69 oil shortage 50 polymetallic nodules 67, 68, 69 seabed mining 214 *The Mineral Resources of the Sea*.  *See*technological progress

technological progress 117 technology of the future 71 technology transfer 169, 237, 240, 242 The Boat Paper 234, 237, 238 The Declaration of Oaxtepec 173, 175, 181 The Ocean Regime 111–115, 117 Thomas Mann 20 Tommy Koh 162, 209 Treaty of Tordesillas 42 Truman proclamation, See Resources 51 Tullio Treves 58

United Nations Convention on the Law of the Sea i, unclos i 53–57 United Nations Convention on the Law of the Sea ii, unclos ii 57–59 United Nations Convention on the Law of the Sea iii, unclos iii Ad Hoc Seabed Committee 83–85, 87, 118 Austrian delegation 184, 189, 196, 204 Austrian delegation 162, 184 Drafting Committee 158 First Committee 159

General Committee 158 Gentlemen's Agreement 154 Green Book 223 Informal Composite Negotiating Text (icnt) 195 Maltese delegation 165, 167 Maritime Assembly 91 President 209 Revised Single Negotiating Text' (rsnt) 189 Seabed Committee 192 Second Committee 159 Third Committee 159 U.N. Committee on Peaceful Uses of the Seabed 94 US delegation 222 United Nations Development Programme (undp) 75, 135, 139 United States 34, 198, 199 V E Ragonesi 179 Victor J Gauci 87 Wilbur O Katz 28 William Goreman 89 World Constitution draft world constitution 41 World Federalist Movement 28, 32 world governance 32–34, 39 world unity 33 World Meteorological Organization 92 World War i 44

World War ii 5, 25, 45, 50, 73–75, 152 *Goliath – The March of Fascism* 20


**3. Reduction of the Solution Effort**

In order to realize a stable convergence of the optimization environment with a solution space with sufficiently many degrees of freedom for the variation of the machine geometry, many iterations and large populations are required due to the used stochastic optimization methods. This yields a long computation time, particularly for machine models with a high number of degrees of freedom. Depending on the required level of detail of the optimization problem, which influences the model resulting from the model selection methodology, the problem may thus not be solvable within a few days. A reduction of the solution effort is desirable. The solution effort can be reduced by a preselection of the individuals to be simulated. In this work, the preselection is realized by estimating the fitness values of the individuals using an ANN . This estimates for each individual those decision parameters of the optimization environment that require a time-intensive operating map simulation, such as the mean losses over a given drive cycle. Geometry-dependent decision parameters, such as the volume or mass of the machine, on the other hand, are computed in a regular manner, so that a fast estimate of an individual's fitness can be obtained from the estimate of the ANN as well as from the individual geometry parameters. Based on these estimates, solutions are discarded and only those individuals promising better fitness than the current minimum are simulated. In the following, the ANN and its application will be discussed.