Religion, church and state in history and philosophy (paper read at dr. Jawaid azfar memorial lecture, 1986.)

RELIGION, CHURCH AND STATE IN HISTORY AND PHILOSOPHY (Paper read at Dr RELIGION, CHURCH AND STATE IN HISTORY AND PHILOSOPHY (Paper read at Dr. Jawaid Azfar Memorial Lecture, 1986.) By PROFESSOR ANTHONY KENNY Master of Balliol College Oxford The question has been long debated whether the propagation of religious truth is one of the ends of civil Government. In most countries of the West that question would not be answered in the negative. The question is not the same as the question whether the temporal welfare of human beings is more important than their spiritual welfare. One can agree that spiritual interests are paramount over material interests, arid yet say that the functions of civil Government are temporal and not spiritual. The institutions of religion have one purpose, and the insti tutions of the state have another, and the two should be kept separate, whatever the relative importance of the two. This point was made vividly in the last century by Lord Macaulay in opposition to Mr. Gladstone. Without a division of labour the world could not go on. It is of very much more importance that men should have food than that they should have pianofortes. Yet it by no means follows that every pianoforte maker should add the business of a baker to his own ;for, if he did so, we should have both much worse music and much worse bread. The community would be thrown into universal confusion, if it were supposed to be the duty of every association which is formed for one good object to promote every other good object. What are the good objects for which civil Government is instituted? There is disagreement, in the twentieth century as in the nineteenth, about the extent to which Government should control and direct the activities of citizens; but there would be wide and almost universal agree ment about some of the minimum and essential functions of Government. The role of Government is to protect the persons of citizens from injury and attack, to enable citizens peacefully to enjoy the use of material goods according to the property conventions of the society, to provide systems of arbitration to enable citizens to settle their disputes without resort to main force; to provide, directly or indirectly, institutions for the construction of works and the provision of goods which are beyond the powers of citizens as individuals or families: works such as road and bridges, goods such as education and health care. It is, I claim, the' role of Government to provide these 'directly or indirectly': it is a matter of continuing dispute whether in these matters a Government does better to act directly (by setting up a state system of transport, education, health service) or indirectly (by legislating in such a way as to enable' and encourage private associations to furnish these goods). The role of religious institutions differs from the role of civil Government. The precise role of these institutions would be stated differently within different religious traditions : but as a rough and ready generalisation it might be said that religious institutions exist for the propagation of religious belief, the promotion of spiritual welfare, and the provision for the worship of the divine. These purposes are clearly distinct from those of civil Government as just described. But if one grants‑as I have just granted, and as a nineteenth century liberal might not have granted that the provision of education and the custody of health can be legitimate: concerns of civil Government, why not also the promotion of religion ? There are two arguments which are commonly put forward in liberal societies for making a distinction here. For the first, let Macaulay again act as spokesman. The primary objects of civil Government he argues are things which any human being, without reference to any higher power, or any future state, is very deeply interested. Every human being, be he idolater, Muhammadan, Jew, Papist, Socinian, Deist or Atheist, naturally loves life, shrinks from pain, desires comforts which can be enjoyed only in communities where property is secure. To be murdered, to be tortured, to be robbed, to be sold into slavery, these are evidently evils from which men of every religion, and men of no religion, wish to be protected ; and therefore, it will hardly be disputed that men of every religion, and of no religion, have thus far a common interest in being well governed. But there is not similar agreement when we turn from the ends of civil Government to the ends of religious institutions. Macaulay is prepared to grant that in all ages and nations men of all orders of intellect, have believed in the existence of some superior mind. But whether there be one God, or many, what may be God's natural and what his moral attributes, in what relation His creatures stand to Him, whether He have ever disclosed Himself to us by any other revelation than that which is written in all the parts of the glorious and well‑ordered world which He has made, whether his revelation be contained in any permanent record, how that record should be interpreted, and whether it has pleased him to appoint any unerring interpreter on earth, these are questions respecting which there exists the widest diversity of opinion, and respecting some of which a large part of our race has ever since the dawn of regular history, been, deplorably in error. The disagreement, then, among human beings about the nature of religious truth is :one argument that is used against allotting, as a task to Government its propagation, Another argument is often put forward religious values, unlike the security of persons and property, cannot be promoted by coercion. It does not matter, the argument goes, whether life is preserved and property protected out of benevolence or out of fear of the consequences of breaking the law. But worship which is enforced by the threat of worldly punishment cannot be pleasing to God in the way that the service of a willing heart is pleasing to him. Despite these two arguments, throughout the history of the world Governments have endeavoured to enforce religious belief and practice. This has been so, most obviously, in theocratic societies in which the promotion of a particular religion has been explicitly seen as one of the major tasks of Government, and in which the heads of state have also been the heads of churches, and the Governmental and ecclesiastical hierarchies have been, if not identical, interwoven. Such was the condition of Europe throughout much of the medieval period. Though, in Christian Europe, a distinction was drawn between the role of the church in declaring an offender to be a heretic, and the role of the secular' power in executing him by burning, both powers regarded the preservation of orthodoxy as being one of the main purposes of their joint endeavour. As late as the sixteenth century lay politicians as enlightened as Sir Thomas More would defend the persecution of heretics as something essential, not only to the preservation of true religion, but also to the cohesion of civil society itself. And as late as the nineteenth century. Mr. Gladstone would defend the imposition of a particular religion‑the Protestant religion‑upon an unwilling population‑the population of Ireland. `We believe' he wrote `that which we place before them is, whether they know it or not, calculated to be beneficial to them ; and that, if they know it not now, they will know it when it is presented to them fairly. Shall we, then, purchase their 'applause at the expense of their substantial, nay their spiritual interests ?' Against this view Macaulay insisted on the, liberal position : that it was no part of the primary role of Government to promote religion: We think that Government, like every other contrivance of human, wisdom, from the highest to the lowest, is likely to answer to its main end best when it is constructed with a single view to that end blade which is designed both td shave and to carve will certainly not shave so well as a razor, or carve so well as a carving‑knife. An academy of painting, which should also be a bank, would, in all probability, exhibit very bad pictures and discount very bad bills. On this principle we think that Government should be organized solely with a view to its main end; and that no part of its efficiency for that end should be sacrificed in order to promote any other end however excellent. Of course, it did not follow that Governments should not pursue any ends other than their main end : Government could encourage fine arts, improve steam navigation, ensure that the citizens' were well‑educated. It could indeed, take an interest in religious 'instruction, provided that were done as a secondary end and in ways which did not conflict with the primary end, But ' no promotion of religion which contravened the primary end was justifiable. Thus : ‑ "All persecution directed against the persons or property of men is, on our principle, obviously indefensible For, the protection of the persons and property of men being the primary end of Government, and religious instruction only a secondary end, to secure the people from heresy making their lives, their limbs, or their estates insecure would be to sacrifice the primary end to the secondary end." So too, would any evil disabilities on ground of religious opinion : for they would make government less efficient by depriving it of the service of able men and women. In most countries in the Western world the last century has seen the effect triumph of the liberal system. Few states with a Christian religions tradition now see it as part of', the role of the state to impose or propagate any form of the Christian tradition. This is so not only in countries like the United States where there is, under the First Amendment, official separation of church and state, but also in Britain where one form of Christianity is an established church, and even in countries like the Republic of Ireland where the overwhelming majority of the population consists of Roman Catholics and where the constitution bears the marks of Catholic political theory. In countries such as Ireland and Italy the issue is blurred somewhat because of attempts by Catholics to use the state to enforce doctrines (such as the wrongness of divorce or abortion) which according to Catholic belief are part of the natural law, obligations imposed by God on all human beings. From the outside, of course, this appears in distinguishable from attempts to use the apparatus of state institutions to impose Catholic belief; but it remains true that even Catholics nowadays do not claim that it is right to enforce specifically Catholic practices (such as fasts or the attendance at Mass on Sundays) upon unwilling citizens; and more and more Catholics, while continuing to believe that divorce, contraception, and abortion are immoral for everyone and not just for Catholics, regard it was wrong to impose this morality on citizens‑whether Catholic or not‑by the coercive power of the civil authority. In general, in Western countries at the present time, when disputes break out over the lines of demarcation between Church and State the question is commonly raised not by the intervention of the State in matters belonging to the Church, but by the intervention of the Church in issues pertaining to the State. There are still, of course, many areas where the regulation of the relationships between members of different religions is one of the most important functions of the State, and where the rivalry between different religious groups is the most potent source of civil disorder. It is not hard to think of tragic examples, whether the warring groups are different sects of Christians (as in Northern Ireland) or whether the conflict is between Christians and members of other faiths (as in Cyprus and Lebanon). But the conflicts here have not arisen from attempts by Government to impose one religion on citizens in despite of another; on the contrary, the constitutional arrangements have been designed to prevent the unfair domination of one religious group by another, and the conflicts have arisen because of the breakdown or inefficacy of the civil power to act as a natural arbiter between the opposing religious factions. The high water mark of the tide of liberalism, of the separation between Church and State, came in the later years of the nineteenth century and the early years of the twentieth. In Western Europe liberal republics or constitutional monarchies had supplanted theocratic states and hieratic kingdoms. The secular German Empire of Bismarck had replaced the Holy Roman Empire 'and the Teutonic monk‑knights. Where once the Pope had ruled, the liberal Savoyard monarchy held sway. The Empires of Western powers in other continents provided, it is true, fertile fields for Christian missionaries; but the imperial powers in general hold these missionaries at arm's length and allowed them no power in imperial administration; and with regard to the indigenous religious traditions. The imperial administrators saw it as one of the most important of their tasks to moderate religious passion and to keep the peace between hostile sects. The overarching theory was that Church and State had distinct spheres which did not overlap except in cases of contingent transgression by turbulent priests or unwarranted secular intrusion into the sacristy. Typical of this view of the matter is an often repeated story which is told in Archbishop William Temple's book Christianity and Social Order. In 1926 group of bishops tried to bring Government, coal‑owners and miners together in a solution to the coal strike which was taking place in the British coal mines. Stanley Baldwin, the prime minister of the day, thereupon asked the bishops how they would like it if be referred to the Iron and Steel Federation, the mill‑owners organisation, the revision of the Athanasian Creed. The bishops, we are told, were not heard from again. In the sixty years since then things have changed. In the more recent coal strike of 1985 one of the most vociferous critics of the Government and of the Management of the mines was the Bishop of Durham. The American Roman Catholic bishops have issued authoritative and forceful documents challenging the policy of the Reagan administration on issues of nuclear warfare and the Management of the economy. The Reagan administration's own advent to power was greatly assisted by the campaign ing of a group of fundamentalist Christian sects known under the umbrella name of The Moral Majority. One of the most recent and most spectacular interventions of churchmen into politics has been the appeal of Cardinal Sin to the faithful to support the revolution which overturned the regime of President Marcos in the Philippines and brought President Aquino to Power. The relationships between hutch and State are once more a burning topic of discussion in Western‑style domocracies. But now it is not the imposition of religious tests by Governments, but the advocacy of political policies by churchmen, that is the stimulus to debate. And in Latin America and elsewhere Christian churchmen have not contented themselves with advocating policies from the pulpit : some have taken an active part in revolutionary movements, other have held office in Government. Recent Papal discipline seems to have retarded, but not altogether halted, this investment of the Church in politics; and of course the Pope himself, by his actions and perhaps even just by his existence, bah had in the political affairs of Poland a role which bears comparison with that of any secular power or superpower. Mention of Poland brings to mind another change which has taken place in the course of the present century in the dimensions of the Church State problem. This is the rise of secular ideologies which have presented the same kind of challenge to civil Government as was presented through out the centuries by the Churches. Nazism, Fascism, Marxism when in opposition to Government present the same kind of unassimilable grouping of citizens as crusading or millenarian sects once did; when in power, they display the same to totalitarian persecuting intolerance as did Governments which caw themselves as, having a duty to uphold religious truth, in the eras of the crusades and the inquisition. Indeed, the problem of the relation between Church and State can be seen as a particular instance of the relationship between ideology and Government. For we may define an ideology as a set of ideas which is simple enough to be grasped by ordinary people without technical training, and yet comprehensive enough to offer an explanation of the most important features of human existence and a guide to the most important social decisions. (I am, of course, abstracting from the question whether any ideology in particular is true or false). In this sense Freudianism Marxism, and Christianity are all ideologies, whereas relativity and liberalism are not. Within Marxist states the same kind of tensions can develop between the officials of the party and the officials of the state as developed between bishops and Kings at a time when the Christian ideology was dominant in the countries of the medieval West. In contemporary Western democracies the question of the interaction between Church and State formulates itself in the following manner: what is the role of the Church, or of Churchmen, within the political processes of a secular society? To answer the question, within the Western context, it is necessary to make a number of distinctions: What kind of state are we talking about, what kind of church are we talking about, and what kind of political activity is in question. The kind of state within which the question poses itself in its contemporary Western form is a state which is neither theocratic nor atheocratic : that is to say, it neither imposes, nor prohibits, any religious activity as such. It is a secular state in that it does not see the propagation of a particular religion is one of its aims, nor does it impose the practices of any particular religion by law: in that sense it is not theocratic. On the other hand, it is not punitively secular ; that is to say, it does not forbid religious activity of any kind, precisely as such. Even in Eastern Europe few states have been explicitly atheocratic in this way; in recent times perhaps Albania has come closest to this form of punitive secul arism. Within such a society there are those, both within and without the churches, who see no role at all for churchmen in politics There are those, outside the churches, who value a secular society precisely for its secularism: the only way to avoid the divisiveness of religious sectarianism, they claim, is to have a state that is pluralist, tolerant of religion, but free from any religious influence upon the political process. There are those within the Churches who see religion as essentially a matter for the individual, a matter of the interior life of the heart and mind; churchmen should not, therefore, meddle in politics, and if the faithful take part in politics it is as individuals not as members of churches. Whether a liberal, secular society can welcome a political role for the church clearly depends on what kind of church is in question. The Italian nationalist Cavour held out the ideal of a free church in a free state: both the liberal state and the liberal church which he proclaimed were anathema to the ecclesiastical conservatives who resisted him in mid‑nineteenth century. But clearly relations between church and state are their easiest, within a pluralist society if the church in question is itself liberal rather than authoritarian. A liberal protestant church fits easily into a liberal, democratic society. Preachers can advise their congregations, pastors form the consciences of their flocks; the faithful can listen to sermons, seek moral guidance, read their bibles. There is here no more violation of due democratic process than if they read their newspapers or listen to political commentators on the radio. Matters become more complicated when we consider churches which claim greater authority, and churches which are international rather than local. If church leaders do not content themselves with giving moral advice, but reinforces it with ecclesiastical sanctions, there is a greater justification for regarding them as unfairly interfering with due democratic process as when, in certain countries, Catholic bishops have threatened. with excommunication those who have voted in referendums in favour of the legalisation of divorce or the discriminalization of abortion. If a church is not just a community of believers within a particular political society, but a world‑wide organization transcending national boundaries, there is more danger of there being a conflict of loyalties between the duty to the State and the duty to the church: as in the breasts of English Catholics when the Pope sent the Spanish Armada to depose the excommunicated Elizabeth. Within secular democracies in recent years churchmen have spoken out not only on issues which directly concern the churches themselves, but on a wide variety of issues. Some concern the role of the individual and individual groups within the state: the role of the family, the right to work, the nature of education. Some concern the relation between the state and those outside the state, whether these concern cooperation with other states (by trade or aid) or whether they concern confrontation with other states (by sanctions or by war). By what right do members of churches seek, in this way, to influence political decisions made by secular states ? There are various different titles which churchfolk may have to speak and campaign on such issues. First, and most obviously, they have the right to speak as individuals, like any other individual in a society ; no one is to be disenfranchised by being a member of religious community. Secondly, again, particular members of churches, including church leaders, may have a particular expertise on the issues on which they speak ; economic, geographic, strategic, for instance. But in these cases they are not claiming to speak as churchmen‑even if, in a particular society, their ecclesiastical position makes it more likely that they will be listened to (as in Britain where a number of Bishops sit as of right in the House of Lords). We come more closely to the matter when we acknowledge that members of a particular transnational religious community may, in virtue of that membership, be able to judge international political issues from a perspective which is broader than a local national one: they will have links with, and feel empathy with, others besides their own nationals, and while this may lead to potential conflict in wartime it can be a source of international detente as well as international tension in peace time. Church groups may claim the role of spokesmen for decaying or disenfranchised values, once recognized throughout society but now mainly preserved within particular religious communities. In these cases they will not appeal to any ecclesiastical authority in support of their contentions : they will make use of secular, rational argument which, they will claim, should have weight with all men and women of goodwill. It is in this way that Catholic bishops in America argue against nuclear weapon use on the basis of the just war tradition ; it is in this way that in many European countries members of different religious traditions have taken parts in debates on the laws concerning divorce, abortion, euthanasia. The moral majority in America is largely drawn from traditions which have hitherto been politically quiescent : activism has been forced on them, they claim, because values of family life and sexual morality which used to be part of the common decencies of society have been under attack from virulent secularism and from lobbies peddling perversity. On issues such as homosexuality and abortion in the United States there has been formed an alliance between conservative Catholics and evangelical protestants which has cut across not only political boundaries, but traditional ecclesiastical ones also. Perhaps the claim of religious leaders to speak on political matters is most commonly supported on the grounds that they are the spokesmen and guardians of a particular tradition within the society itself : this is particularly so where the religion in question has had a role in the historic formation of the state, or is respected by a significant proportion of the population. Here, in the Christian context, Ireland and Poland are two obvious examples. It is in this area that the role of the church c.1n both assist most forcefully in strengthening the cohesion of the state, but can also threaten most powerfully the authority of the state's secular govern ment. Such, then, are various titles by which churchmen may claim, without any necessary violation of the democratic process, to have a special voice in the political forum of a secular and liberal society. But of course it is not only by word, but also by deed, that churches may seek to influence the political process. For my part, I do not think that the formation of confessional parties, such as the Christian Democrat parties in Italy and Germany, has been really beneficial either to the states or churches concerned, and I welcome the fact that in recent years the political mould in each of these countries has been becoming looser and more secular. Again, I think that in general the participation of churchmen in govern ment risks a confusion of roles, though I recognise that there may be cases where, in an emergent nation, the lack of secular leaders of a sufficient degree of education may place a responsibility on clergy to act as political leaders, so that there is a necessary but transitory role for the Archbishop Tutus and the Alan Boesaks. Just as, in general, the clergy should not in my view take an active part in the government, I believe that they should not take an active part in subversive activity, even when the illegitimacy of the government, or the wickedness of its policies, is such as to justify attempts to subvert it. In England and in the U. S. clergy have been active in the anti‑nuclear movement, and this I have argued is well within their legitimate sphere ; but when they use forms of protest which are illegal, they risk alienating their faithful, and also may convey a false aura of hallowing to the law‑breaking in which they engage. In all these cases, the reason why the involvement of clergy seems to me inappropriate is because of the confusion of roles. For I believe that Macaulay was fundamentally right to see the ends of civil government and the ends of religion as distinct. Because I see a much broader role for government, in such spheres as education and health, than he did, or than any nineteenth century liberal would, I must correspon dingly allow a larger measure of overlap between the spheres of the state and the spheres of the church. But there must be limit to the overlap, and I would draw the limit by saying that those who hold authority in the one institution should not hold authority in the other. There are, in fact, as both history and philosophy show, only two ways in which the claims of church and state can be effectively harmonised. One is in the theocratic society, when church and state are identical: where a single hierarchy is responsible for both civil and divine government. The other is in the pluralist secular society, where the two governments are kept apart, and the input of religious‑leaders taken its due place within the democratic process in the manner I have described. A theocratic society can claim legitimacy as a government only to the extent that the religion which it incarnates is willingly accepted by the citizens over which it rules. In a modern world of international communications, where the plurality of conflicting religious traditions meets the eye not only of every traveller, but of every reader, a theocratic society can survive only by being a closed society and turning its back on the international community. It is for secular, pluralist societies to show that the adoption of liberal democracy need not involve the sacrifice of the values which religious men and women hold dear and which theocratic societies pay a heavy price to preserve. PROVISION FOR DIVORCED WOMEN UNDER ISLAMIC LAW By PROFESSOR AHMAD IBRAHIM (Shaikh, Kulliyyah of Laws, International Islamic University. Malaysia.) The Holy Qur'an is undoubtedly the primary and unalterable source of Islamic Law. If reliance can be placed on the so‑called translations of the Holy Qur'an and in particluar on the translation by Abdullah Yusuf Ali of Surah A1‑Baqarah (2) : Ayat 241 then it would be difficult not to accept the argument that a Muslim husband is liable to provide maintenance for his divorced wife even after the period of iddah.1 Ayat 241 of Surah al‑Baqarah is thus translated by Abdullah Yusuf Ali‑ "For divorced women maintenance should be provided on a reason able scale. This is a duty on the righteous." The same Ayat is thus rendered its English by Maulana Abdul Majid Daryabadi "And for the divorced women shall be a reputable present. A duty on the God‑fearing." Maulana Abul A'la Maududi gives the purport of the Ayat thus‑‑ "Likewise the divorced women should be given something in accord ance with the known fair standard. This is an obligation on the God‑fearing people." How lucky it is for the Muslims that they still are able to refer to the original message in Arabic. The word which Abdullah Yusuf Ali has translated as maintenance is "mata'un". The same root word occurs in Ayat 240 of Surah Al‑Baqarah which is rendered by Abdullah Yusuf Ali as ‑ "Those of you who die and leave widows should bequeath for their widows a year's maintenance and residence." The verb form of the same root also occurs in Ayat 236 where it is rendered by Abdullah Yusuf Ali thus‑ "There is no blame on you if you divorce women before consumma tion or the fixation of their dower but bestow on them a suitable gift, the wealthy according to his means and the poor according to his means." When the Holy Qur'an deals with the maintenance of wives and children it does so in the context of an existing family. The Holy Qur'an states to the effect "Men are the protectors and maintainers of women because God has given them more strength than the other and because they support them (anfaqu) from their means." (Surah An‑Nisaa (4) : 34) "The mothers shall give such to their offspring for two whole years, if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms". (Surah AI‑Baqarah (2) : 233) "Let the women live in the same style as you live according to your means. Annoy them not so as to restrict them. And if they carry (life in their wombs) then spend your substance (anfiqu) on them until they deliver their burden ; and if they suckle your offspring give them their recompense and take mutual counsel together according to what is just and reasonable and if you find yourselves in difficulties let another woman suckle the child on the father's behalf. Let the man of means spend according to his means; and the man whose sources are restricted let him spend according to what God has given him. God puts no burden on any person beyond what He has given him. After a difficulty, God will soon grant relief." (Surah At‑Talaq (65 : 6‑7) The Sunnah of the Prophet (s. a. w.) also emphasises the duty of a Muslim to spend on his family. It is related from Abu Masud At‑Ansari that the Prophet (s. a. w.) said to the effect "When a Muslim spends something on his family intending to receive Allah's reward, it is regarded as a Sadaqa for him."2 Aisha narrated that Hind binti Utba came and said‑ "O Prophet ! Abu Sufyan is a miser so is it sinful of me to feed our children from his property". The Messenger of Allah said to the effect "No if you take for your needs what is just and reasonable."3 In his final pilgrimage the Prophet (s. a. w.) reminded the Muslims of their duties to their wives to the effect‑‑ "O men to you a right belongs with respect to your women and to your women a right with respect to you. It is your right that they do not fraternise with any one of whom you do not approve as well as never to commit adultery. If they abide by your right then to them belongs the right to be fed and clothed in kindness. Do treat your women well and be kind to them, for they are your partners and committed helpers. Remember that you have taken them as your wives only under God's trust and with His permission."4 It is related by Fatimah‑binte‑Qais that the Prophet (s. a. w.) said "There is no lodging and maintenance allowance for a woman who has been given irrevocable divorce (that is after three pronouncements) It is clear therefore from the Holy Quran and the Sunnah that a man has an obligation to provide maintenance for his wife and children. If she is divorced by a revocable Talak, the husband can revoke the divorce and take the wife back during the period of iddah. He, therefore, still has an obligation to maintain her. But if the divorce has taken effect after the period of iddah, she is no more his wife and it would not be correct or seemly for him to give maintenance to someone who is no more connected to him by any legal ties. In these circumstances the Muslim is recommended to give a present (mutaah) to the divorced wife as com pensation. It may be that the law has been abused. The facts in the Indian Supreme Court case of Muhammad Ahmad Khan v. Shah Banoo Begum for example were that the appellant who is an Advocate by profession was married to the respondent in 1932. Three sons and two daughters were born of the marriage. In 1975 the appellant drove the respondent out of her matrimonial house. In April 1978 the respondent filed a petition against the appellant under section 125 of the Criminal Procedure Code asking for maintenance at the rate of Rs. 500 per month. On November 6, 1978 the appellant divorced the respondent by irrevocable Talaq. His defence to the respondent's petition was that she had ceased to be his wife by reason of the divorce granted by him and he was therefore under no obligation to maintain her. In August 1979 the learned Magistrate directed the appellant to pay the sum of Rs. 25 a month to the respondent by way of maintenance. The respondent was alleged to be earning a professional income of Rs 60,000 pet year. In July 1980 the High Court acting in revision enhanced the amount of maintenance to Rs. 179.20 per month. The husband appealed to the Supreme Court. The legislation on maintenance in India is to be found in section 125 of the Criminal Procedure Code which provides that "If a person having sufficient means neglects or refuses to maintain. (a) his wife, unable to maintain herself‑a Magistrate may upon proof of such neglect or refusal order such person to take a monthly allowance for the maintenance of his wife. The problem in India as stated by Chandrachund. C. J. in the Supreme Court was that‑‑ "(under) section 488 of the Code of 1898 the wife's right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim personal law or by obtaining. a decree of divorce against her under other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to section 125(1) which provides 'that "wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried." This law was enacted in India in the wisdom of her legislators. It is a law of general application and therefore was held applicable to Muslims in the Two earlier decisions of the Supreme Court to Bai Tahira v. All Hussain Fidaalli Chorhia' and Fazlunbi v, K. Khader Vali.8 In the case of Muhammad Ahmad Khan v. Shah Banoo Begum Cband rachund, C. J. said of section 125 and its Explanation‑ "These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religions. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by a neglected wife, child or parent. "The liability imposed by section 125 to maintain close relations who are indigent is founded upon the individual's obligation to the society to prevent vagrancy and destitution."9 The Supreme Court referred to the provision in section 129 (3) (b) of the Criminal Procedure Code which provides in effect that the Magistrate may cancel any order for maintenance made, if the woman has been divorced by her husband and she has received, whether before or after the date of the order, the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce. Chandrachund, C. J. said : - "We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject‑matter of section 125. That section deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain among others his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the main tenance of the divorced wife to the period of iddah, does not contemplate, or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law is not under an obligation to provide maintenance beyond the period of iddah, to the divorced wife who is unable to maintain herself. The agreement of the appellant, that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddah despite the fact that she is unable to maintain herself. has therefore to be rejected. The true position is that if the divorced wife is able to maintain herself, the husband's liability to provide maintenance ceases with the expiration of the period of iddah. If she is unable to maintain herself, she is entitled to take recourse under section 125 of the Code." If the Supreme Court had relied only on the provision of section 125 of the Indian Criminal Procedure a secular law, there might be no quarrel with it. Such legislation is a secular legislation made in a secular country and if the Muslin s in India are for any reason dissatisfied with the law then it is up to them to suggest amendments to the laws. In particular it will be necessary for them to show how the Islamic law can make provision for divorced women so that they do not become indigent. The Supreme Court however went further and relying on the translations of Ayat 241 of Surah Al‑Baqarah has stated that there is an obligation on Muslim husbands to provide maintenance for their divorced wives. The difference the Court said between "provision" and "maintenance" is a distinction without a difference. It is for this reason that the decision of Supreme Court is with respect questionable. The problem of divorced wives who are left indigent by their husbands is of course not one that exists in India alone. In Egypt section 18 of Law 25 of 1929 dealing with dissolution of marriage and family disputes has been amended to provide that "if a wife with whom the marriage has been consummated is divorced by the husband without her consent and without any fault on her part, the wife shall be entitled, besides her maintenance to obtain payment mutaah for an amount of not less than two years' expenses. This right shall be determined in accordance with the financial status of the husband, the circumstances of the divorce and the duration of the marriage between the parties. The husband shall be entitled to pay the mutaah by instalments. The Explanatory Note to the amendment states that in the existing law, "the payment of mutaah in the form of money is not obligatory on a husband in respect of a wife who is divorced after consummation. The law only gives the divorced wife the right to get her dower (mahr) if the marriage has been consummated and the maintenance for the period of iddah. Muta'ah is only regarded as some. thing that is desirable. In these days when the morality of persons have, declined and the feelings between husband and wife have been affected the divorced wife might find herself in need of assistance beyond what she can get from the maintenance for the ' period of iddah to enable her to overcome the effect of divorce. The payment of mutaah can help in this respect and besides the necessity for such payment can act as a deterrent to hasty divorce. The principle contained in the payment of muta'ah is the need to cool the feelings of the divorced wife. This is one of the matters which is referred to in the law based on the command of Allah in Surah al‑Baqarah (2) Ayat 241. Following the latest view of the Shatii School the payment of muta'ah is incumbent on a divorced woman after consummation, if the divorce was not at her request or from her fault. This view is the same as that of Ahmad Ibn Hanbal as followed by Ibn Taymiyyah. The payment of muta'ah is also obligatory in the view of the followers of the Zahiri School and the Maliki School. The amendment to section 18 adopts the views of the different authorities set out above. It gives :he jurisdiction to assess the reasons for the divorce in order to avoid the abuse of the right. The compensation ordered should not be less than two years' expenses. In order to assist the husband who divorces his wife, the section allows him to pay the compensation by instalments."11 In Malaysia where the predominant school of, law applied in the Shariah Courts in the various states is the Shafii law provision has been made for ancillary orders to be made on divorce. It is provided for example in the Islamic Family Act, 1984 for the Federal Territory that no pronouncement of Talaq order of divorce shall be registered unless the Chief Registrar (of Muslim Marriages and Divorces) is satisfied that the Shariah Court has made a final order for the custody and maintenance of the dependent children, for the maintenance and accommodation of the divorced wife and for the payment of muta'ah to her." The Court has power to order the payment of the mahr which is still unpaid and to make orders for the pay ment of maintenance during the period of iddah.i3 In addition to her right to apply for maintenance a woman who has been divorced without just cause by her husband may apply to the Court for muta'ah or a consolatory gift and the Court may after hearing the parties and upon being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair and just according to the Islamic law.l4 The Court is also given power to make an order for the division of any property or assets acquired by the husband and wife during their marriage is This right for the division of the jointly acquired property was originally based on the Malay custom but has been absorbed into the Islamic law administered in the Shariah Courts on the basis of the right arising from sharakat or the partnership arising from marriage. The measures adopted in Egypt and Malaysia might be considered by the Muslims of India and Pakistan and suitable legislation enacted so as to prevent divorced women from falling into destitute and want. NOTES 1. Muhammad Ahmed Khan v. Shah Banoo Begum A I R 1985 S C 945 and Dr. Lucy Carroll Divorced Islamic Women and Maintenance 1:986 P L D Journal. 2. Sahib, al‑Bukhari Kitab Al‑nafaqah (Translation by Dr. Muhammad Muhsin Khan) Vol. VII, p. 201. 3. Sahib al‑Bukhari op. cit, p. 208 4. Sahib Muslim, Kitab al‑Hajj, Bab Hajjah al‑Nabi (Translation by A. H. Siddiqi (Vol. II, p. 615). 5. Sahib Muilim Kitab al‑Talaq (Translation by Abdul Hamid Siddiqi), Vol. II, p. 772. 6. A I R 1985 S C 945. 7. A I R 1979 S C 362. 8. A I R 1980 S C 1730. 9. AIR 1985 S C 945 at p.948. 10. ibid., p. 950. 11. See Ahmad Ibrahim and Abdullah Abu Bakr, Recent Amendments to the Egyptian Family Law, in [1980] Journal of Malaysian and comparative Law, Kuala Lumpur, Malaysia, p. 65. 12. Islamic Family Law (Federal Territory) Act, 1984, S. 55 ; see also the proposals of the English Law Commission for a "clean break" after divorce and the provisions of the English Matrimonial Proceed4ngs Act, 1984. See Stephen M. Cretney Principles of Family Law, London, Sweet and Maxwell, 4th Edition, 1984, pp. 766f and 820 f. 13. Ibid., S. 57. 14. Ibid., S. 56. 15. Ibid., S. 58. CONSTITUTINAL CRISIS IN PAKISTAN AND SOLUTION THEREOF By S. M. ZAPPAR, Senior Advocate, Lahore The story of India's independence is one‑dimensional i. .e., freedom from the British rule. But the epic of Pakistan movement is two dimensional i. e., freedom from the colonial rule as well as freedom from what was eloquently described by Quaid‑i‑Azam as permanent Hindu Raj. On 14th of August, 1947, a new country emerged on the map of the world. The nation, having waded through blood and destruction in the aftermath of the partition of the two provinces (the Punjab and Bengal), was confronted with the task of framing a Constitution. The Constituent Assembly of Pakistan combined two functions in itself ‑i. e., providing the country with a Constitution and running a responsible Government. A unique but dangerous provision allowed the Members of the Assembly to continue in office without re‑elections till they had drafted, passed and enforced a Constitution. It took a long time, probably the longest in history in producing a Constitution. In the meantime, the Members con tinued to enjoy high positions for themselves as Ministers, Ambassadors, Governors and Governors‑General. In brief, the Constituent Assembly passed the Objectives Resolution in 1949, followed by three ,reparts by the Basic Principle Committee in. 1952‑53. In 1954, a draft Constitution was ready but the Constituent Assembly itself wag dissolved. After a long battle of legal semantics, in the Federal Court‑a new Constituent Assembly was re‑structured which finally passed the 1956‑Constitution based on Parliamentary System, and with the promulgation of the First Constitution, Pakistan became an Islamic Republic on 23rd March, 1956. However, 1956‑Constitution did not receive the credibility that a Constitution deserves because of the discredit that had been earned by the members of the Assembly. By this date, the members of the Constituent Assembly had lost their contact with the electorate, and the Assembly no longer derived its authority from the people. Consequently, the first Constitution of 1956 which took 9 years to produce, was abrogated on 25th October, 1958 through a bloodless -coup‑d'etat. These years may be described as a period of Conceiving A Constitution. From 1956 onward till 1973, the nation went berserk in adopting and then rejecting one Constitution after the other. Pakistan witnessed the making and abrogation of Constitution as if it was an ordinary legislation or even less. In 1962, a Constitution with Presidential form was adopted based on non‑Party system and indirect election. In 1965, it was altered to provide for political parties. This Constitution was abrogated in 1969 through a Martial Law and a Constituent Assembly was elected in terms of Legal Framework Order in 1970. Heated and angry Constitutional debates led to political confrontation and East Pakistan separated in December, 1971. An interim Constitution of 1972 resembling Government of India Act, 1935 was framed and then finally in its place Constitution of 1973 was promulgated by a part of the then National Assembly which had been elected on the basis of a General Election (for the United Pakistan). This period may be called a period of Chasing the Constitution. From 1973 to the present time, another phenomenon has occurred namely of suspending a Constitution and reviving it. In this period, Constitutional amendments of major nature have also been undertaken. To begin with, although 1973‑Constitution was framed on Parliamentary model, yet by an innovation, the Prime Minister was for an initial period, of 10 years made irremovable and President a mere rubber stamp, invoking such cynical demand which was plastered on the walls of the President's House to release Ch. Fazal Ilahi‑even though he was busy receiving protocols from the foreign dignatories and Ambassadors. Later through the fifth amendment the powers of the third Branch of the State, namely, Judiciary, was controlled. During the suspension of the Constitution full liberty has been taken. Objectives Resolution which is expressed in general and vague terms has been grafted as a substantive provision ; and the P. C. O. provided for an en‑masse removal of judges. Even the imposition of Martial Law on 5th July, 1977 has been recognised as an act of benevolence and validated as a part of the Constitution through Article 270‑A. The President of Pakistan by name has been made irremovable till 1990. This last period may be described as the period of Grafting the Constitution. From a brief survey of the events narrated above, it would be abundantly clear that Pakistan can be singled out as the country where Constitutional crisis is a normal state of affairs. Even today, Constitu tional issues are attracting huge crowds and debates in the National Assembly or in the National Press are on the nature of Constitution ranging from its Islamic character to the regional autonomy and con federation ; coupled with the issue of Constitutional legitimacy of political institutions themselves. It may now be pertinent to find out the causes of this malaise. On an average a Pakistani citizen is favourably comparable to an average citizen of any developed country. He is politically alert and well aware of the surroundings, yet in its corporate living Pakistanis collectively have failed. It is difficult to put the blame for such classic and continuous failure on one or two factors alone. It is the accumulative effect of a number of factors and I intend to choose the following :‑ ‑ Pakistan Muslim League ; ‑ Lack of interest/opportunism in National politics by the indigenous capital. ‑ Predominance and continued influence of feudal class in politics ; ‑ Role of Army. The list is not exhaustive and I have omitted bureaucracy and judiciary as both these organs have played only secondary or a surrogate role. Pakistan Muslim League: From 1947 to 1954, politics had been an unchallenged territory of Muslim League. Most of the political parties who had opposed the creation of Pakistan or did not participate in the fore‑font of Pakistan Movement, were on independence and for sometimes, thereafter, not acceptable to public and even their validity as political parties remained under shadow. I would venture to say that during this period, it was almost one party rule by Muslim League. The failure in framing of the Constitution must rest in, and be historically accepted by the then leader ship of Muslim League. If the members of the Muslim League in the Constituent Assembly and later in the National Assembly (1956 to 1958) bad not sacrificed the national interest .to their desire of remaining in power and instead of merily running a musical chair race of petty power politics had concentrated, like their counterpart of the Congressmen in India on the framing of the Constitution they could have likewise produced a Constitution by 1952 and the history of Constitution making as well as the politics in Pakistan could have been different. I, however, would like to advance a historical defence in favour of Muslim League although such a defence can only mitigate the seriousness of the charge. The apology is that All India Muslim League due to historical causes had a late start in 1906 as against Congress which came into being some 50 years ago in 1867. Again Muslim League had to pass through a two dimensional struggle to first establish its claim as the sole representative of Muslims in India and thereafter claim a territory. When Muslim League was fighting a war on national front, Congress was making prepara tion for the State‑building. It was only in 1940 that Muslim League gained initial success on its first front and the seven years thereafter are a story of meteoric rise crowning into the creation of the largest Muslim State. Accordingly the time of Muslim League was primarily and signi ficantly consumed in nation‑building and very little time could be given to the problem of State‑building. Furthermore, its cadre expanded too soon and too much. Testing and pruning could not take place. These were the handicaps or the disadvantages with which Muslim League started its rule in 1947. But as it had the advantage of running the country virtually as a one‑party rule, therefore in spite of the aforesaid disadvantages the leadership should have proceeded with top speed to frame the Constitution. The death of Quaid‑i‑Azam and later the assassina tion of Liaquat Ali, deprived the Muslim League of the dynamic and purposive leadership. What followed is a stigma which the Muslim League must remove if it has to claim the heritage of Quaid‑i‑Azam. As a Muslim Leaguer (I feel lighter after this confession.). Industrial‑cum‑Business Community and the Feudal Class: When Mohan Das Karam Chand Gandhi returned from, South Africa, he wanted to start his law practice in India but the Industrial and Business community of India (mostly Hindus) pleaded with him to instead take care of the political party (Congress) and in return, they promised to furnish his party the financial resources and wherewithal. The quid pro quo having been settled Mahatama travelled all over the India, held his meetings, planned Satyagrah, lived with Harijan but .was financed by BIRLAS and TATAS. By the end of his career, he established the infra structure for a viable Bourgeois democracy. In simple words, the Indian democracy is an example of good management run through political elite albeit keeping in view the interest of the national capital. The truck between political elite and nationalist business houses has, since then, run very smoothly to the advantage of both in particular and the country in general. India is today, no doubt, the largest democracy in the world. The Muslim Industrialists was a rare specie before independence. Most of the capital formation has taken place after independence. Decade of reform which was celebrated in the last days of Ayub Khan projected facts and figures that were thoroughly prepared by the then expert. of the Information Ministry, and it revealed that since 1947, the growth of capital had been phenomenal. However, an 6fficer of the Planning Division (as he then was) Dr. Mahboobul Haq said that the wealth so formed has gone into the hands of 22 families. Whether it went into the hands of 22 or 200 families (or more), the point I intend to make is that the business class availed of 'Mann‑o‑Salva' that they received from the over‑protected policies that each government doled out for their benefit, but they did not participate in the national politics. They decided to remain on the side of winners only. As a result, the political parties, by and large, were and are, dominated by either the landed aristocracy or its twin‑brothers of 'Gaddi‑Nasheens' and `Pirs'. In Pakistan, democracy was run through a team of the political intellectuals and power‑hungry feudals. It thus ran into all the vices of 'Mauls Jat' and 'Noori Nath'. Politics remained mercurial full of vendetta and strongly motivated by self‑interest, sane principles and sane commitment. It is a political magic that in Pakistan a party is changed overnight ; it happened in the case of Republican and once again those who solemnly swore affidavits to the Election Commissioner to the effect that they are 'non‑party walas' are now (after the elections) the sole spokesmen of the ruling Muslim League. A youngman told me here in Rawalpindi ‑‑Sir, you better change the grammar of your politics. Don't you see only those succeeded in Pakistan who have manoeuvrability who can change the horses in the mid stream. When I surveyed the Bio‑Data of those who are in the Assemblies today, I could not deny to the youngman the credit of being far‑sighted. The journey through 39 years of history has been piloted by these adventurers resulting in many unnecessary Constitu tional crises. Army: A professional Army has a natural inhibition not to intervene in politics‑yet a large part of the third world today is ruled by the Army dictators. I do not think one can catalogue all the reasons in this discussion today as to why and when do the Army intervene in politics. But I think it will be worthwhile to give a summary of my final view based on in‑depth study of the issue in 'context of Pakistan. Firstly, a nation is well‑advised to avoid the very first intervention of the Army. If it happens once, it can happen repeatedly. This advice is primarily directed to the politicians, judiciary, caucus controlling the national press, members of the Bar and the intellectuals‑Whenever a Martial Law has been imposed, some sort of support is unfortunately lent from these quarters. Secondly, the loss of prestige and status of political per‑ties and the politicians is a stimulant to the Army to replace them. During 1950‑58, Pakistan had several Prime Ministers and one Commander‑in‑Chief ; whereas India had one Prime Minister and several Commander‑in‑Chiefs. The weakness of our Political fiber was manifested by the changes and fall of Prime Ministers in quick succession some even after a few months. Such a situation invariably invites the Man on Horse Back who on the first occasion intervenes to fulfil "the manifest destiny and providential mission of the soldiers to save their country." Thereafter, the contact with the civil Government politicises the Army and even if they are returned to barracks, they tend to come back again. The syndrome of Dr. Jackal and Mr. Hyde operates and in spite of the good intentions the evil starts dominating. Firstly for longer periods then permanently till it destroys the body itself. In Pakistan, we inherited a remarkable Army full of sparkling tradition and pride in their heroic performances in the World War‑II. They were and are even today respected world over for their professionalism. A historian went to the extent of naming the Indian Army as "Builders of British Empire". We inherited the finest part of this Army. The weakness of political parties in the years 1947 to 1958 coupled with the fact that politicians became increasingly contemptible and laughable in the eyes of public provided the first opportunity to the Armed Forces to impose the first Martial Law on the country on 25th of October, 1958. Pakistan Army (at least its top) has since then been politicised. The fairplay operation which began on 5th of July, 1977 was the third interven tion and the Man on the horse back has candidly told us that the Martial Law is not yet unreal. It may be round the corner. Again it is worth statistics to know how many ex‑Generals or ex‑Air Marshalls are now important office‑bearers in the political parties of the country. Pakistan Army is thoroughly politicised. Each of these Martial Laws has interrupted the Constitutional rule and being inexperienced with the state craft, the Army junta have tried to change the course of history by novel experiments. Later General Yahya Khan is reported to have said to his Law Minister that he has found out that a Constitution is a document merely with whereof and whereas and wherefrom. This has led to the instability in Constitutional matters which has been further confounded by such irresolvable issues as Constitu tional validity. Solution I am now obliged to offer solution/solutions to the chronic problem of Constitutional crisis. Before I indulge in that luxury of giving sermons (which these days is the privilege of everyone who is ‑called to speak from a rostrum), I want to add a personal note. In 1968, when a movement against Field Marshal Ayub Khan took place, we tried to get a consensus of the nation via a round‑table Conference by agreeing to amend the 1962 Constitution to provide for direct adult franchise and the Parliamentary form. But some political forces opted out and the consensus could not be achieved. The disaster led to abrogation of 1962‑Constitution by the second Martial Law of the country. In 1971 and 1973, 1 acted as the Constitutional Adviser of the combined Opposition in the National Assembly and like most of the citizens of Pakistan, was relieved when the party in power and the opposition arrived at a consensus in the National Assembly and passed the 1973‑Constitution. As the Constitution was passed through a consensus and by the duly elected representatives of the people, the third Martial Law also appears to have respected this Constitution to the extent of not abrogating it. I am conscious that for the situation that I have described above qua the Constitution, there can be no ready solution. I cannot chant any magical words like `khul ja sim sim'. I am also aware that corruption and opportunism is galloping in the life of individuals. In these circumstances, we can only determine the priorities and if our priorities are correctly settled, the ideal solution may not be a mirage. There are two major schools of thoughts on the status of the present National Assembly, i.e., it having been elected by the people is entitled to continue till 1990, and the contra that the election on non‑party basis has deprived the Assembly of the requisite validity to represent the people for full 5 (five) years. . If these forces take the extreme stand, the solution would be sought on the streets of Pakistan. There will be a conflict between the street power and the State power. Let us, therefore, avoid the extremism and try to settle through a consensus on mid‑term election. The mid‑term elections would take care of both the view‑points and gracefully avoid the bickering on the issue of validity. It proceeds on the rule "Give and Take" (i.e. `kuchh do kuchh lo') and represents the spirit of political adjustment. The present democratic atmosphere cannot be sustained for long, if it is not backed by mutual respect. Mid‑term election will also compensate for the time lost by the nation in the 9 years of Martial Law in which period two elections at least should have been held. It can help remove the rock and the mushroom political parties may disappear by the process of selection. Let us all enter into a social contract to abide by the decisions of the people reflected through these elections, and depend on the representatives to deal with the amendments in the Constitution under .the fixed rules of procedure. In the meantime, I urge upon the intellectuals, professionals and the money class as well as the representatives of the labour unions and the peasants, to join the national politics not by merely casting their votes or clandestinely giving support from behind the scene, but by becoming a part of the political party of their choice; Pakistan is their country as well and they are entitled to participate in shaping its destiny. I have a very obstinate and persistent hope in the collective will of our nation which is untiringly seeking the ideal. COMMON HERITAGE OF MANKIND(The views expressed in this article are those of the author and do not necessarily reflect the policy of the Government of the Islamic Republic of Pakistan or the Journal.) A NEW ORDER FOR THE SEABED OUTSIDE ZONES OF NATIONAL JURISDICTION By JAMSHED A. HAMID, Legal Adviser, Ministry of Foreign Affair, Delegate of Pakistan to the Third United Nations Conference on the Law of the Sea (UNCLOS III) INTRODUCTION Interest of the world community in the deep seabed is a recent pheno menon and began in the mid‑60s when enormous quantities of poly metallic nodules were discovered on the ocean floor. Uptil then the uses of the seabed were limited mostly to laying of submarine cables and pipelines. Those freedoms had been enjoyed by states since the mid‑nineteenth century. However, as these activities did not affect any state's right we do not find any conflict requiring legal solutions. Similarly, fishing in the high seas did not create any problems, except in some coastal areas, nor oceanographic research of the deep seabed created any conflicts requiring legal settlement. These activities, because of their non‑controversial nature, came to be regarded as freedoms of the high seas. With the discovery of rich polymetallic mine sites in the form of nodules and the development in the technological fields which made their recovery and processing possible the world community focussed its attention on the seabed. area for depriving the maximum benefits. This area of the ocean had hitherto been neglected. The technologically developed nations, which were in the process of developing seabed mining technology, anticipated not only enormous monetary benefits but also visualized independence in some strategic minerals they lacked. Consequently, they began claiming that the seabed mining was also a freedom of the high seas. Foremost from amongst these countries was the United States. This stand of the United States and other developed nations came directly in conflict with the overwhelming majority of developing countries who naturally wanted that the rich resources found on the seabed should benefit them as well. This conflict in interests brought to the forefront two theories, hitherto dormant, relating to the status of the seabed. The two theories-"res nullius" and "res communis" are old and much debated in recent times. However, they surged to prominence in the preceding two decades when discovery of hard minerals on the seabed and their exploitation became a feasible reality. The developed countries interested in deep seabed mining, in addition to justifying their action on the ground that mining activity in the oceans beyond zones of national jurisdiction was a freedom of the high seas, also justified their action on the ground that seabed is res nullius and open to exploitation and exclusive claims by the first occupier just like any unclaimed land. On the other hand the developing countries have rejected applicability of the res nullius theory to the seabed and claimed that seabed was also a part of the high seas and just as no nation could claim exclusive rights or sovereignty over the high seas no nation could claim sovereignty over or acquire exclusive rights over the seabed either. They based their argument on the principle of res communis and emphatically refused to consent to seabed mining as a freedom of the high seas. The disagreement between the developed and the developing countries about the status of the seabed and its exploitation prompted Mr. Pardo, the representative of Malta, to propose that the oceans beyond the zones of national jurisdiction was the "Common Heritage of Mankind".( This was proposed in his famous address to the U.N. General Assembly to 1969.) This proposal triggered international concern over the legal status of the seabed and within three years of Mr. Pardo's initiative the international community reached a broad understanding that the seabed was the "common heritage of mankind" and that the international community should declare it as such. The result was the adoption of a resolution by the General Assembly, known as the "Declaration of Principles Governing the Seabed and the Ocean Floor and the Subsoil thereof, Beyond the limits of National Jurisdiction", sometimes also referred to "Declaration of Principles"(General Assembly Resolution No. GA Res. 2749 (XXV). Doc, A/8028 (1970).) This resolution clearly declares that: "The Seabed and ocean and the subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as the area), as well as the resources of the area, are the common heritage of mankind." Pursuant to this Declaration a Seabed Committee was established to look into various aspects relating to the area and crystallize rules governing the common heritage of mankind.( The Seabed Committee was established in 1971.) In order to broaden the scope of examination the General Assembly in 1972 decided to convene a Diplomatic Conference to discuss and adopt a convention on the subject which may in addition to other fields, crystallize rules relating to the Common Heritage of Mankind. The Law of the Sea Convention, 1982 adopted after almost a decade of negotiations deals with diverse regimes relating to the oceans. It is a comprehensive document covering a large canvass. It establishes zones of national jurisdiction and provides in detail the rights and obligations of the coastal states and the third states. It consolidates the already existing regimes established under various Treaties(Vienna Conventions of 1958 on the Law of the Sea served as the basis for various articles.) and creates new principles to regulate the diverse uses of the oceans beyond zones of national jurisdic tion. Amongst the sui generis regimes established by the Convention we find the concepts of the exclusive Economic zone(See Article by the author in P L D Journal 1983. ) and the Seabed "Areas" .( 'Area' is also a sui generis concept.) COMMON HERITAGE OF MANKIND A decade or so before the birth of the common heritage‑concept nations evinced little interest in the seabed. Either due to their ignorance of the resources that covered the seabed, or where the resources were discovered but due to their inability to recover them, nations of the, world, considered it of little practical value to lay claims to those resources. At that time they did not contemplate the uses of the seabed beyond their continental shelves. International interest in the seabed developed with the rapid strides made in the. technological fields when seabed mining technology was developed to an extent where‑exploitation of its resources became a reality. Now that the seabed exploitation has become possible the industrialized countries, particularly the United States and its allies in Western Europe began arguing that the seabed mining has been and now forms inseparable part of the freedoms of the high seas.( It is difficult to agree as no seabed mining ever took place beyond the continental shelf till about a couple of decades ago.) They, therefore, supported res nullius doctrine. The developing countries rejected this argument for the reasons that 20 nation can claim any right or sovereignty over the high seas or the seabed and its resources. They consequently supported the res community Principle. HISTORICAL BACKGROUND The principles relating to the freedom, of the High Seas are traceable Grotius, commonly recognized as the father of international law. The only freedoms he recognized were navigation and fishing. The criteria prescribed by him were that any use of the oceans by one state should be such that it should be "without loss to anyone else": Navigation by one nation cannot affect the uses of the oceans by other states. Similarly fishing, if regulated in a manner as not to diminishing its potentials, would not affect others,. Consequently, every countries recognized the tight of all other 'rates to navigate and fish on the high seas so long as they do not diminish the resources or prejudice in any way the future ability of other nations to use the seas in like manner. As far as the polymetallic nodules are concerned they‑fall in a different category. There are non-renewable and the resources can be exhausted through exploitation to an extent where similar benefit to others not in a position to exploit them, would be denied to them is future. This would be in conflict with the principles the father of international law tried to establish. The cardinal principle he emunciated was that ownership of things by anyone that weal "to have been created by nature, for common use" was forbidden. This contradicts the argument by the United States and other industrialized countries that like, fish which is open to be caught by anyone but once caught it' becomes the property of the person who catches it, the nodules on the seabed are also open to be exploited by all but once recovered become the "'property of those who exploit them. This assertion is violative of the. basic principle established by Grotius and recognized by the world community ever since that any activity in the seas by one state should not diminish the rights of others. Fish resources are newable but minerals are not and, therefore, exploitation of the latter would not only diminish but may completely deplete the resources and thereby prevent others from reaping benefits. On the basis of this principle the new uses of the seas such as laying of submarine cables and pipelines and marine scientific research were also recognized as the freedom of the high seas because these too did not diminish the uses of the seas by others. This principle was universally accepted and applied(Although U.S. and others claimed seabed mining as the freedom of the high seas no exploitation of the same was ever undertaken. It is difficult to establish that this activity was a recognized freedom consented to by the international community.) upto the adoption of the resolution declaring the seabed area the common heritage of mankind. The declaration of principles clearly lays down that ------ "the exploration of the area and the exploitation of its resources shall be carried out the benefit of mankind as a whole, irrespective of the geographical location of states------ taking into particular consi deration the interests and needs of the developing countries."( f. a. 2 supra. Operative paragraph 7.) The declaration of principles adopted by the General Assembly also reflected the resolve of the international community to establish new legal order for the oceans and to create an effective international machinery for the "rational management of the area and its resources and for expanding opportunities in the use thereof and ensure the equitable sharing by states in the benefits derived therefrom, taking into particular consideration the interests and needs of developing countries."( Ibid. paragraph 9.) When a few developed states began asserting their claims to the resources on the seabed on the plea that exploration and exploitation of the seabed were the freedoms of the high seas and the rejection of such claims by the developing countries the General Assembly decided to establish the Seabed Committee to consider ways and means of eliminating this friction and to adopt a set of rules for the orderly uses of the seabed. However, the international community, realizing the need for expanding the scope of the examination to include other areas which also needed final settlements(The Territorial Waters' limit was not fixed under the '58 Convention and the second conference also failed. This is one such area needing settlement) and with a view to presenting the international community an elaborate package to cover all aspect of the uses of the oceans the General Assembly decided to convene a diplomatic conference on the law of the Sea‑the third of its kinds(The first conference was held in 1958 which adopted Convention. The second was held in 1960 to determine the limits of territorial matters)----- to examine the possible uses of the seas and their resources for the benefit of all nations. The Third United Nations Conference on the Law of the Sea (UNCLOS 111) held its first Session in New York in 1973 to discuss the procedural issues. The first substantive session was held in Caracas, Venezuela in 1974 and since then a total of eleven sessions, spread over nine years, have been held. The convention was adopted on 30th April, 1982 at New York. The final session of UNCLOS III was held at Montago Bay, Jamaica at which the convention on the Law of the Sea was formally adopted and opened for signatures.( Pakistan, alongwith 115 states signed the Convention on the very first day it opened for signatures.) The convention shall enter into force on the deposit of sixtieth instrument of ratification or accession.( Uptil the writing of this Article 21 states and international organizations had ratified/acceded to the Convention.) The Law of the Sea Convention is a comprehensive document covering 320 articles, and 9 annexes. It covers the uses of the oceans in all its aspects. It is perhaps the most ambitious undertaking by the international community in formulating a set of rules to govern their relations in an area which covers two‑thirds of the earth's surface. This package covers a large canvas. It codifies the existing rules of customary international law and consolidates the regimes established in other conventions relating to the oceans.( The Convention of 1938) It also either modifies or elaborates some of the existing rules. It crystallizes the rules on which controversy existed in the past and were the cause of friction between states. In view of the changed circum stances new rules and disciplines have been enacted to safeguard the legitimate interests of most states. In this last category two items are most conspicuous‑the regime of the Exclusive Economic Zones(See my article in the P L D 1983 Jorunal pp. 111‑126.) and the regime governing the Seabed Area of the high seas. In this Article I intend to confine my examination to the regime of the Area‑a sul-generic concept in international Law. The Convention has established a new order for the Seabed Area which establishes a delicate balance between the developed industrialized states and the developing countries and which requires our attention and examination. "COMMON HERITAGE OF MANKIND" During the negotiations in UNCLOS III the seabed area consumed most of the time of the Conference. The debate touched upon economic, political, ideological and even security aspects. The deliberations were both protracted and at times acrimonious. Concessions were sought by both the developed and the developing countries and in most cases concessions were made by states where they did not impinge upon their legitimate interests. In this regard it may be mentioned that the Group of 77 was most generous and if vie delve into the history of treaty‑making it will be seen that never before so many states conceded so much to pacify the concerns of so few. The conference was confronted from the very start with the most difficult and at times, irreconcilable problems. Although negotiations at the conference covered the entire garmit of ocean regimes, the issues relating to seabed have been the most difficult to resolve. Mostly, it was a direct confrontation between the industrialized countries led by the United States and supported by the industrialized countries of Western Europe and Japan, on the one hand, and the developing countries, acting in concert through the Group of 77, on, the other. The industrialized countries, as mentioned earlier, had a paramount interest in the deep seabed mining as they alone had both the financial resources and the seabed mining technology. Most of these states are dificit in at least two strategic high‑technology minerals found in the polymetallic nodules recoverable from the ocean floor i.e. nickle and cobalt. Both these metals are used in the manufacture of sophisticated strategic weapons and presently these countries are dependent on others to meet their domestic requirements. In order to obtain these metals at the most competitive prices for their domestic needs they were unwilling to incur obligations which would impose additional financial burdens or in anyway impose any limitation on their right to extract them. Throughout its duration, except for the boycott of the proceedings by the U. S. of the tenth session held in 1981 when review of the draft convention was undertaken by the Reagan Administration, the industrialized countries participated fully in the negotiations and took a leading role in introducing proposals to facilitate the work of the conference. They expressed their concerns on issues which confronted them with insurmountable problems and asked for concessions with a view to allaying the fears of their government where they genuinely existed. They also extended concessions to the Group of 77 on issues which did not radically conflict with their economic and strategic interest. The Group of 77 was extremely positive in its response. The developing countries had high stakes in seeing the Law of the Sea Convention adopted and the regimes relating to the oceans firmly established. The Group, therefore, accommodated the legitimate concerns of the developed countries and conceded where it recognized that the concerns were genuine. Yet when the stage was set for the adoption of the Convention the United States requested for a vote and cast its vote against the Convention, while most of its allies abstained. The two notable exceptions being France and Japan who voted in favour. Although the Convention has not come into force an overwhelming majority of states, including most of the developed countries, have lent a moral support to it and affixed their signatures before the last date fixed by the Convention. This universal support to the convention is ample testimony of the fact that it maintains an equitable balance between the interests of both the developed and the developing states and reconciles the diverse and at times their divergent interests. This fact would become evident from the following examination of the various disciplines included in the Convention on the Law of the Sea. Before we examine various disciplines relating to the seabed mining it would be appropriate to begin our examination by discussing the infrastruc ture the Convention establishes to oversea and regulate the seabed mining. SEABED AUTHORITY The Convention establishes an elaborate organization to regulate the mining activities on the seabed area outside the zones of national jurisdic tion. This includes the Seabed Authority consisting of the Assembly, the Council and the Secretariat. It also creates a mining arm of the Authority known as the Enterprise. To assist the Authority in its work involving subjects of highly technical nature several specialized commissions have been created. And finally, to settle disputes arising out of mining activities in the Seabed area the International Tribunal or the Law of the Sea has been established with its Seabed Disputes Chamber. I shall now discuss these organs of the authority, their powers and their functions, under separate heads and prove how the delicate balance has been achieved in the Convention with necessary built‑in safeguards. ORGANS OF THE AUTHORITY ASSEMBLY Composition‑ The Assembly is one of the three principal organs of the Authority (Article 158.) and has been designated as its "supreme organs". (Article 160). It consists of all the members of the Authority (All states parties to the convention on the Law of the Sea shall ipso facto become members of the Authority.) and can be compared to a legislature in a state setup. Each member shall have one vote. It shall meet in regular sessions once a year and in such special sessions as may be decided by it. Special session may also be convened by the Secretary‑General at the request of the council or at the request of the majority of the members of the Authority. All sessions shall take place at Kingston, the seat of the Authority, unless otherwise decided by the Assembly.( Article 159 (1), (2) and (3).) The Assembly has been empowered to adopt its own rules of procedure and elect its President and other office‑bearers at the beginning of each regular annual session. They shall hold their offices till the next regular annual session when their replacements are elected. POWER AND FUNCTION As the "supreme organ" of the Authority the developing countries favoured conferring absolute powers on it. The developed countries on the other hand, fearing the overwhelming majority that the developing countries are likely to enjoy, attempted, with a degree of success, to relegate this body to performing only a secondary role in the overall set up of the Authority. They succeeded in converting it virtually into a debating society and so we find an Assembly which has the power to establish general policies falling within the scope of the Authority's competence. Although the convention has assigned a large number of functions to the Assembly most of those functions are carried out on the recommendation of the council with its own complicated procedures. The only effective control the Assembly enjoys under the convention, in addition to laying down general policies, is the election of members of the council ; the Secretary General ; members of the Governing Board ; the appointment of the Director‑General of the Enterprise ; establishment of the subsidiary organs, if this is found necessary for the exercise of its functions ; determination of the shares, with regard to the benefits and assessment of contributions of members to the administrative budget of the Authority in accordance with the agreed scale of assessment based on the scale used for the regular budget of the United Nations and finally the approval of the budget. It is worth noting that contributions by states parties to meet the administrative expenses of the Authority is a transitory arrangement and would be applied only until the Authority itself shall have sufficient income from other sources (such as income from exploitation of the resources from the Seabed Area by the Enterprise and income from fees. royalties and share of the‑profits), to meet its administrative expense. These are, as mentioned earlier, perhaps the only real powers the Assembly has and even these are exercised on the recommendation of the Council except laying down of general guidelines. In almost all other matters of importance its powers to take decision are subjected to the recommendations of the council. In addition to the above other powers and function of the Assembly include consideration and approval of the rules, regulations and procedures on the equitable shaking of the financial and other economic benefits derived from activities to the Area ; payments and contributions made by the coastal states with respect to the exploitation of the non‑living resources of the continental shelf,( See Art. 82.) ; rules, regulations and procedures of the Authority relating to prospecting exploration and exploitation in the Area ; financial management and internal administration of the Authority (For details see Art. 162 (1)(o)(ii).) examination of periodic or special reports from the council, the Enterprise or any other organ of the Authority ; initiation of studies and making of recommendations for promoting international co‑operation concerning activities in the Area ; discussion of problems of general nature connected with activities in the Area arising for developing countries ;suspend the exercise of rights and privileges of membership where a state has "grossly and persistently violated the provisions" of convention upon the finding of the Seabed Dispute Chamber(Art. 185) ; establish a system of compensation of other measures of economic adjustment/assistance for developing countries which suffer serious adverse effects on their export earnings or economies resulting from a reduction in the price of an affected mineral as a result of activities in the Area and also consider problems of general nature in connection with activities to the Area. The Assembly takes decision on question of procedure by a majority of the members present and voting. On the question of substance the decision is taken by a two‑thirds majority provided that such majority includes a majority of the members participating in the session. When an issue arises as to whether a question is one of substance or not that question shall be treated as one of substance. Voting on question of substance can be deferred only once if one‑fifth of toe members of the Assembly so request provided that the question is not deferred beyond the end of the session. Voting can also be deferred if advisory opinion of the Seabed Dispute Chamber is sought on a questions till the receipt of such opinion. However, this delay is not for an indefinite period and if the advisory opinion is not received before the final week of the session in which it was requested the Assembly has the power to decide on when it should meet to vote upon the deferred proposal. (For details see Articles 159 and 160.) It is clear that Assembly's powers as compared to the Council, which we shall examine later, are considerably less. It, in most cases, is, as mentioned earlier, dependent upon the latter's recommendations. Although termed the "supreme organ" it functions in a secondary role. This would become evident from the examination, of the composition and powers of the Council. This Assembly with truncated powers, was therefore acceptable to the developed states. However, the real controversy was generated while discussing the Council. COUNCIL The Council is the chief executive organ of the Authority and shall consist of 36 members to be elected by the Assembly. The representation in it is based on economic interests and ideological outlook of states rather than primarily on regional or geographical groupings which is normally the case in most international forum within the U. N. system. Apart from its composition the decision‑taking procedure is also a novel innovation to cater for special interests of one category of states with highly developed economies. The developing countries wanted the council to be subservient to the Assembly which is the "Supreme Organ" of the Authority but reluctantly agreed to the enhanced powers for it to alley whatever fears the industria lised countries had of the "brute majority" of the developing states. The final shape of the Council and its powers and functions are as follows. Composition‑ (1) Four members from among those states parties which have during the past five years consumed more than 2 per cent. of total world consump tion or have imported more than 2 per cent of total world imports of the commodities produced from the categories of minerals to be derived from the Area. These minerals are nickel, cobalt, manganese and copper. Of these four one seat is reserved for East European Socialist block countries. (2) Four members from among eight states parties which have invested the largest amount in preparation for and in the conduct of activities in the Area, either directly or through their nationals. Even in this category one seat is reserved for East European Socialist block countries. (3) Four members who are the largest exporters of the category of minerals to be derived from the Area. However, these four must include at least two developing countries, which are landbased producers and whose economies are directly affected by the Seabed Mining. (4) Six developing states parties representing special interests and may include those with large populations, landlocked and geographically disadvantaged states, major importers of category of minerals to be derived from the Area, potential producers of such minerals and the least developed states ; and (5) Eighteen members elected on the basis of equitable geographical distribution provided that each geographical region is represented by at least one member. The regions are Africa, Asia, East European (Socialist), Latin America and Western European and others. The convention attempts to ensure that certain category of special interest states are represented in the council. Consequently, it places an obligation on the Assembly that while electing members to the Council, it should ensure that landlocked geographically disadvantaged and the developing coastal states are represented to a degree which is reasonably proportionate to their representation in the Assembly. Elections to the council shall take place at the regular annual session of the Assembly and a member shall be elected for a four‑year term and shall be eligible for re‑election. However, emphasis has been placed on the desirability for rotation. In order to maintain continuity one‑half of the members of the council shall retire after every two years; POWER AND FUNCTIONS As the council is the chief executive organ of the Authority it has the power to establish specific policies in conformity with the general policies established by the Assembly. In addition, its other functions include supervision and implementation relating to matters falling within the competence of the Authority, including inviting attention of the Assembly to cases of non‑compliance. As mentioned earlier, while discussing the Assembly, that in most of the important cases the Assembly acts on the recommendations of the council. These recommendations include candidates for the election of the members of the governing council of the Enterprise and its Director General and the Secretary‑General; adoption by the Assembly of rules, regulations and procedures on equitable sharing of financial and other economic benefits derived from activities in the Area; share of contributions made by the coastal state with respect to exploitation of the continental shelf and to make general recommendations to the Assembly concerning policies on any question or matter within the competence of the Authority. As the executive organ it performs certain important executive func tions relating to activities in the area. These relate, in addition to overseeing, the issuing of directives to the Enterprise; approval of the plan of work by the applicant(In accordance with Annex III, Article 6.) and the Enterprise (In accordance with Annex IV, Article 12.) securing compliance with the relevant provisions of the convention and its Annexes and rues, regulations and procedures established by the Authority by the contractors and relating to their activities to the Aria; reviewing the collection of all payments to be made by or to the Authority in connection with opera tions to the Area; selection from among the, applicant for production authorization; issuance of orders for suspension and/or adjustment of operations to the Area to prevent harm to the marine environment or disapprove areas for exploitation by either the contractor or the Enterprise where such activities would cause serious harm to the marine environment; consideration of the annual budget of the Authority for submission to the Assembly; determination of the contributions paid into the special account to meet the administrative expenses of the Authority and exercising of the borrowing powers of the Authority; laying down of the financial terms of the contract and financial matters relating to the establishment of uniform non‑discriminatory accounting; laying down of the terms and conditions for apportionment of proceeds of operations and granting of incentives. It also establishes mechanism for directing and supervising a staff of inspectors to inspect activities in the area, to determine whether rules, regulations and procedures of the Authority, and the terms and conditions of any contract with the Authority have been complied with. It may also establish subsidiary organs for the exercise of its functions(For details of the procedure see Annex III, Art. 7.) and for the elaboration of draft financial rules, regulations and procedures for providing funds to the Authority and generally mike recommendations to the Assembly concerning policies on any question or matter within the competence of the Authority. As the executive organ it institutes proceedings, on behalf of the Authority, before the Seabed disputes chamber in cases of non‑compliance and notifies the Assembly about the decision alongwith recommendations on the measures to be taken. While taking decision on matters which fall within the scope of its powers and functions the council adopts a cumbersome and somewhat intricate procedure which is also peculiar to it and not generally found in the United Nations system where a specified majority of two‑third is the generally accepted rule. This would become evident from the following examination. VOTING PROCEDURE Each member of the council has one vote. Decisions on question of procedure is taken by the majority of the members present and voting. Majority of the members of the council constitute a quorum. However on questions of substance a complicated procedure has been devised. The decisions on substantive matters arc taken by different specified majorities keeping in view the nature and the importance of the subject‑matter. Consequently decisions are taken on some issues by consensus, on others by three‑fourths majority and yet others by two‑thirds majority. Items on which decisions are taken by different specified majorities are discussed below. CONSENSUS This procedure is adopted to protect the vital interests of all states, particularly where financial implications are involved. These relate to adoption of appropriate measures to provide protection to the developing countries landbased producers of, the minerals to be derived from seabed mining from adverse effects on their economies or on their export earnings resulting from. the reduction in the price of the affected minerals or to the volume of export of that mineral to the extent that such reduction is caused by activities in the area.( Article 162 (2) (o).) The council, in this case, acts on the recommendations of the Economic and Planning Commission. Further, the council, while making recommendations to the Assembly for adoption of rules, regulations and procedures on the equitable sharing of financial and other economic benefits derived from activities in the area and payment of contributions by coastal states with respect to the exploitation of their continental shelf, has to adopt them first by consensus. It also resorts to this procedure while provisionally adopting and applying, pending approval by the Assembly, the rules, regulations and procedures of the Authority and any amendments thereto relating to prospection, exploration and exploitation in the Area and the financial management and internal administration of the Authority. In this case the council acts on the recommendation of the legal and technical commission or any other subordinate organ concerned.( Article. 162 (2) (o) (ii).) The consensus procedure is also applied in cane of adoption of amendments to Part XI(Article 161, (7) (d).) of the convention relating to the Common Heritage of Mankind. THREE‑FOURTH MAJORITY The convention provides in a majority of cases the specified three fourth majority for decision taking. This three‑fourth majority is applied while taking decisions on subjects which deal with extremely important matters and include the establishment of specific policies to be pursued by the Authority on the question or matters within its competence:( Article 162 (1),) I supervision and co‑ordination in the implementation of the relevant provisions and matters within the competence of the Authority and inviting the attention of the Assembly to cases of non‑compliance; proposing the list of candidates for election of the Secretary‑General; the members of the governing board of the Enterprise and its Director‑General; establishment of such subsidiary organs as it finds necessary for the exercise of its functions; adoption of its rules of procedure, including method of selecting its President; exercise of control over activities in the area in accordance with the rules, regulations and procedures of the Authority; selection of applicants for production authorization; submission of the proposed annual ‑budget of the Authority to the Assembly for its approval; making of the recommendations to the Assembly concerning policies on any question or matter within the competence of the Authority; making recommendations to the Assembly concerning suspension of the exercise of the rights and privileges of membership; institution of proceedings, on behalf of the Authority before the Seabed Dispute Chamber in cases of non‑compliance by a contractor or a sponsor issuing of emergency orders to prevent serious harm to the marine environment provided that orders issues thereunder may not be binding for more than 30 days unless confirmed by a decision taken by consensus; disapprove areas for exploitation where serious harm to the marine environment might result; establishment of subsidiary organs for elaboration of financial rules, regulations and procedures; establishment of an appropriate mechanism for directing and supervising staff of inspectors to determine whether activities in the Area and the terms and conditions of any contract with the Authority are being complied with (See Article 162. paragraph 2(a), (b), (e), (d), (e), (l), (q). (r), (a),(t). (u). (w), (y) and (a).) election of members of the commissions and decision to increase the size of the commissions; (Article 163 (2).) exercising of the borrowing power of the Authority" and provisions relating to finances including the funding of the Enterprise and the amounts received from the Authority and the Enterprise.( Article 174 (3).) TWO‑THIRD MAJORITY This voting procedure was accepted for items of lesser importance and included provisions such as entering into agreements with the United Nations and other International Organizations on behalf of the Authority; consideration of the report of the Enterprise and its transmission to the Assembly with its recommendations; presentation of annual and special report to the Assembly; issuance of directives to the Enterprise; making of recommendations to the Assembly on system of compensation to countries facing adverse effects as a result of activities in the area; reviewing of collection of all payments to be made by or to the Authority; notification to the Assembly of the decision by the Seabed. Dispute Chamber in cases referred to it(Annex. IV, Article II.) and of the advisory opinion by the Seabed‑"Dispute Chamber alongwith recommendations for taking appropriate measures " in both cases. Much to the satisfaction of the industrialized countries the council is saddled with "decision taking" powers on all important, matters relating to activities in the Area which had been the borne of contention between them and the developing countries. The latter wanted the council to be subservient to the Assembly, being the supreme organ, in matters activities in the Common Heritage of Mankind but reluctantly, agreed to enhanced powers for it to alley whatever fears the developed countries had of the brute majority of the developed countries. If we analyse the composition and the powers of the Assembly and the council we shall see that the Assembly has virtually been reduced. to a status of a debating organ. In matters where the Assembly has to make any specific or binding decision it can do so only on the recommendations of the council. In the council itself analysis of the relevant provisions, particularly the voting procedures, would clearly reveal that all those provisions which are not of any great significance or which do not bear upon the vital interests of member states are taken by two‑thirds majority but those issues of substance which are of significance decisions in i1te council are taken either by consensus or by three‑fourth majority. This Peculiar decision‑taking method was devised to weaken the numerical strength of the developing countries and to a safeguard the interests of the industrialized states. For these reasons the decision‑taking procedure in the council differs substantially from the one normally applied in tile United Nations system. This peculiar system was also the result of the peculiar nature of the convention and the functions the Seabed Authority is likely to perform whom the convention on the Law of the Sea comes into force. ORGANS OF THE COUNCIL As mentioned earlier the council is the executive organ of the Authority. Keeping in view the specialized nature of the Law of the Sea Convention it may, for most of the time, have to deal with matters which are highly technical in nature. Consequently, in order to assist the council in technical matters for which specialized knowledge is required the convention has established two commissions‑the Economic and Planning Commission and the Legal and Technical Commission. Each Commission is to consist of members(Article 191.) possessing appropriate qualifications in the area of their competence, keeping in view the principle of equitable geographical distribution. However, the number may be increased in the interest of efficiency. The advices given by these Commissions are not binding on the council. These Commissions are to function in accordance with the guidelines established by the council. They shall function at the seat of the Authority. In exercise of their functions the Commissions can consult each other or any other competent organ of the United Nations or its specialized agencies or any other international organization with competence in the subject‑matter. The members of the Commissions are elected by the council from among the candidates nominated by states parties. They shall hold office for a period of 5 years and are eligible for re‑election for further term.( The council can increase the number if it is necessary in the interest of its functions.) These consultative powers are necessary to make the widest possible expertise available to the council to perform its functions efficiently. Outside consultations with agencies which already perform functions of specialized nature in one of the disciplines to be considered by the council would add. not only to its efficient functioning but would also limit the expenses which would otherwise have to be incurred on acquisition of such expert advice: SECRETARIAT The third principal organ of the Authority is the Secretariat. It would be headed by the Secretary‑General to be elected by the Assembly upon the recommendation of the council and shall hold office for a period of four years and shall be eligible for re‑election. In the performance of his functions he would be assisted by such staff as the Authority may require. Once appointed, the Secretary‑General and the staff shall function in dependently of their governments and for the interest of the Authority alone. ENTERPRISE OF THE AUTHORITY As pointed out earlier the Seabed Authority can carry out activities in the Area directly through its mining arm called the Enterprise. It shall conduct mining operations; transport minerals recovered from the Seabed; establish processing plants and marking facilities. It shall act in accordance with the general policies of the Assembly and the directives of the council but in the actual conduct of its operations it shall enjoy autonomy both in terms of obligations as well as liability.( Article 163.) The operations of the Enterprise shall be directed by a Board of Governors consisting of I S members to be elected by the Assembly upon the recommendation of the Council keeping in view the principle of equi table geographical distribution. They shall hold office for a period of four years and may be re‑elected. Once elected, although originally nominated by states parties, they shall act in their personal capacities independently of their Governments.( Article 170. Annex. IV.) The convention provides that the Enterprise should be made viable in every respect to undertake exploration and exploitation of the Seabed Area simultaneously with or almost at the same time as the contractors so as to enable it to undertake commercial activities in relation to at least one mine‑site. For this purpose the Enterprise would require funds as well as technology and trained manpower. Consequently, the convention lays down an elaborate set of rules for providing necessary funds to the Enter prise for exploration and exploitation of one mine site, including initial administrative expenses. These funds shall be made available by the states parties to the convention. One‑half of the funds shall be raised by states parties by way of long term interest free loans provided by them in accordance with the scale of assessment for the United Nations regular budget in force at the time such assessment is made. As regards the other halt or the funds the states parties shall guarantee the debts incurred by the Enterprise in accordance with the same scale.( For details of functions and powers sect Annex. IV. Article 5.) The reasons for limiting the obligations of States parties to providing funds only for one mine site was that the Enterprise was envisaged as purely a commercial organization which was expected to generate sufficient income to undertake further activities out of its own earnings. Further, if Enterprise once became a viable concern it could obtain loans from commercial banks and United Nations funding agencies on commercial terms.( Annex. IV, Article 11(3).) Hence the obligations of states parties was limited to the first mine site with a view to putting the Enterprise on the rails and giving it a push so that it starts rolling. The other important element for the viability of the Enterprise is the transfer of technology. The convention generally imposes an obligation on the Authority to take all measures to acquire technology and to promote and encourage its transfer to the developing countries so that all states parties may benefit.( The latter provide loans on extremely consessional rates to sister concerns of the United Nations.) This obligation relates to all fields of marine sciences. However, in this article we are concerned with the transfer of seabed technology only and, therefore, I shall confine myself to the discussion of this item. Earlier we discussed how funds are made available to the Enterprise. However, no amount of finances or funds would .be able to make the Enterprise viable unless appropriate technology was made available to it. "Technology" has been given a wide meaning in the convention and includes recovery of nodules, their transportation, processing and marketing." With this object in view and to ensure that "appropriate technology" is transferred to the Enterprise the convention provides that when submitting a plan of work, every applicant shall make available to the Authority information about the technology he is likely to employ and where such technology is available.( Annex. III, Article 5(8).) In case of any change or alteration or revision in the technology the same will have to be intimated to the Authority.(Anaexure III, Article 5.) Every contract, for carrying out activities in the Area must contain an undertaking from the contractor to the effect that he shall make available to the Enterprise technology which he uses in carrying out activities in the area on fair and reasonable commercial terms and conditions if the Enterprise finds that it is unable to obtain the same or equally efficient and useful technology on the open market.( Ibid.) If the contractor himself is not the owner of that technology then he must ensure that whenever the Authority so requests the owner of such technology shall make available to the Enterprise, under a licence or other appropriate arrangements technology which is generally not available in the open market, on fair and reasonable commercial terms and condi tions. In order to ensure that the technology would be transferred to the Authority the convention provides that "i this assurance is not obtained and technology in question shall not be used y the contractor in carrying out activities in the Area.(Ibid) The undertaking mentioned above may give rise to disputes between the contractor and the Authority. Consequently where the dispute arises "as to whether offers made by the contractor are within the range of fair and reasonable commercial terms and conditions" the same may be submitted by either party to binding commercial Arbitration in accordance with UNCITRAL rules.(Annexure III, Article 5(3)(b).) Other disputes arising between the Authority and the prospective contractor concerning the refusal of a contractor of the legal issues arising to the negotiation of the contract shall be submitted to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea.( Ibid) The third important element in making the Enterprise viable is to provide it trained personel. The funds and the technology would not make the Enterprise functional unless it had the trained manpower in every Department of its activities. For its activities the Enterprise would require engineers in the specialized fields of seabed mining, managers, etc. With this object in view Resolution II adopted by the Law of the Sea conference has imposed an obligation on the Pioneer Investors to "provide training at all levels for personnel designated by the Commission.( Article 187 (2).) In this way it is hoped that the Enterprise would be able to acquire sufficient expertise by the time it begins activities in its first mine‑site and to be able to train its own people to man future activities in the common heritage of mankind. SETTLEMHNT OF DISPUTES As mentioned earlier the convention has established a special "Seabed Disputes Chamber'' within the International Tribunal for the Law of the Sea to adjudicate on disputes referred to it by parties to the dispute relating to activities in the Area. it is composed of eleven judges, selected by a majority of the elected members of the Tribunal from amongst themselves(Paragraph 12(a)(ii) of Resolution II. This Resolution creates an interim regime to enable those states or state sponsored entities who have already invested large amounts in seabed exploration and technology development to have themselves registered as Pioneer investors. Prepara tory Commission which was established to frame rules and regulations for various organs of the Seabed Authority to be established when the convention enters into force on the deposit of 60th instrument of ratifica tion/accession has been assigned the function of registering Pioneer Investors.). While selecting such members the principle of equitable geographical distribution has been assured. Only the Seabed Deputy Chamber has the jurisdiction to adjudicate on questions relating to interpretation of the convention and the Annexes relating thereto.( For Training of Personnel see also Article 15 of Annexure III. The Tribunal consists of 21 members who are elected in accordance with the procedure layed down in Annexure IV.) However, this Chamber also has its limitations. It has no jurisdiction with regard to the exercise by the Authority of its discretionary powers and, therefore, cannot substitute its discretion for that of the Authority. Further, it has no jurisdiction to pronounce itself' on the question of whether rules, regulations or procedures of the Authority are in conformity with the LOS convention nor can it declare such rules, regulations and procedure invalid. Its jurisdiction in this regard is limited to deciding claims that the application of any rule, regulation or procedure of the Authority in individual cases are in conflict with the contractual obligations of the parties to the dispute or their obligations under the LOS convention. It may also decide claims based on excess of jurisdiction or misuse of power and any claim for damages of other remedy given to the aggrieved party for failure of the other party to the dispute to comply with its obligations either under the contract or under the convention.( Arbitral Tribunal has no jurisdiction to decide any question of interpretation or application of the convention. If any such question slises it shall be referred to the Seabed Dispute Chamber for a ruling. For details as to the jurisdiction of the Seabed Disputes Chamber see Article 187.) The Seabed Disputes Chamber also has advisory jurisdiction and shall give advisory opinions at the request of the Assembly or the council on legal questions arising within the scope of their competence. Disputes may also be submitted to the ad hoc chamber of the Seabed Disputes Chamber composed of three members. The composition of the ad hoc chamber is to be determined by the Seabed Disputes Chambers with the approval of the parties to the dispute.( Article 189.) As regards the competent parties before the Seabed Disputes Chamber there has been a departure from the normal practice that only states are competent to bring cases before the International Court or Tribunal. This departure has been necessitated by the fact that the convention grants not only to states but also to entities other than states the right of access to the seabed for the purpose of exploration and exploitation under conditions laid down in the convention and the related annexes. Consequently they too can be competent parties to the dispute before the chamber in case in which they are involved.( See Annexure VI Article 36 for details.) On the other hand where there is a dispute concerning the interpreta tion or application of a contract the same shall be submitted to a binding commercial Arbitration unless otherwise agreed by the parties. If the contract does not provide for the arbitration procedure to be applied in a dispute, the arbitration shall conducted in accordance with the UNCITRAL Arbitration Rules or such other arbitration rules as may be prescribed in the rules, regulations and procedures of the Authority unless the parties to the Dispute otherwise agree.( Article 187.) It may be mentioned that the developing countries wanted obligatory third party settlement procedures of binding nature. They therefore favoured the Seabed Disputes Chamber to settle contractual claims as well. The developed countries on the other hand favoured commercial Arbitration under Uncitral rules on the ground that these rules were well established in settling disputes and should be incorporated in the con vention as one of the dispute settlement mechanism in settling disputes arising out of application or interpretation of a contract. The developing countries agreed but ensured that such Tribunals should have no jurisdic tion to pronounce on matters relating to the interpretation or application of the Law of the Sea (LOS). Conclusion If we peruse the provisions of the United Nations Convention on the Law of the Sea, 1982 in an impartial manner it would be clearly seen that it establish as a fair and equitable balance between the interests of developed countries and the developing states. As is usually the case with conventions of this nature, which cover a vast canvass and contain provisions which are the result of compromises, they establish a delicate balance between the interests of various states having divergent and at times conflicting interests. Consequently, they may not satisfy all states but as a package may be acceptable to all. The convention on the Law cal the Sea because of the wide spectrum of activities it covers, may not the ideal one in view of the desperate economic, commercial, maritime and strategic interests of different states but it is a document which should create least problems for states and all countries both developed and developing should be able to live with it if they discard their narrow interests. The developing coun tries, acting in concert through the Group of 77, despite the difficulties they face with Part XI relating to the Common Heritage of Mankind, have overwhelmingly supported the convention. Except for a few(Article 188 (c).) a vast majority of states which participated signed the convention on the first day it was opened for signatures and 21 States have also ratified it. The Group of 77 has ever since the adoption of the convention has extended its full support, to it on the ground that the package arrived at establishes a "delicate balance" based on the compromises arrived at during the negotiations. This balance should not be altered in any manner. On the other hand the industrialized states have adopted a contradic tory and at times unsustainable attitude. On the one hand they scoff at the "delicate balance" argument put forward by the developing countries in support of the convention but on the other band they themselves never hesitated in putting forward the same argument whenever it suited their interests.(United States, United Kingdom and the Federal Republic of Germany have not signed the convention. From among the developing countries.) This attitude of theirs is apparent from their conflicting policies on various issues relating to the LOS convention. On the Seabed Area outside the zones of national jurisdiction they have tacitly(This attitude is clear from the various statements by Mr. Malore, the Chief U.S. delegate under Reagan, and his articles in various journals.) accepted the principle that the seabed area outside the zones of national jurisdiction is the common heritage of mankind and no state has the rights to extend its sovereignty over any part of it nor exploit its resources except in accordance with the rules to be established tender a U.N. convention to be adopted.( The resolution declaring Seabed Area the Common Heritage of Mankind was adopted without a negative vote.) The convention has been adopted and signed by an overwhelming majority of states. Despite this some industrialized countries still ague that the seabed mining is the freedom of the high seas like fishing and navigation. This contention has been rejected by the developing countries for reasons already stated at the beginning of this article. The industrialized countries, in a number of other cases which suit their interests justify actions on the ground of their being inconformity with the convention and their acceptance by the international community and, therefore, fall within the customary rules of international law. Con sequently, almost all developed coastal states have established their Exclusive Economic Zones on the basis that owing to widespread acceptance of this principle as reflected in national legislations of most of the coastal states, it has acquired the status of a rule of customary inter national law. The attitude of the developed countries of "pick and choose" is, to say the least, is unethical. The convention faithfully reflects the compromises reached during the negotiations and was adopted as a package. No state can therefore, select certain .provisions of advantage to it and enforce them on the basis that they have been universally accepted and form part of customary rules of international law and reject those provisions which it feels are against its interests. The concept of the Common Heritage of Mankind commands as much support of the word community as the principle of the Exclusive Economic Zone and, therefore, any discrimination between these two concepts is unjustified. The few industrialized countries which possess seabed mining technology are today isolated. There are opposed by more than 120 nations belonging to of developing world who have, since the late 60s, been contending that the seabed mining prior to or outside the scope of the comprehensive law of the sea convention to be adopted by Unclos III would be unlawful. After the adoption of the convention the Group of 77 has ban opposing any action on the part of any state or Groups of state, which aimed at undermining the convention. The Group not only welcomed but appreciated the actions of those developed states which have decided to work within the framework of the Law of the Sea convention particularly those which have applied for registration as pioneer investors(f. n. 2 supra.) thereby proving beyond doubt that the regime established by Part XI of the con vention for the Common Heritage of Mankind is workable. The Soviet Union and its allies in the East European Socialist Block Group also support the Group of 77. China have also extended its unqualified support for the Convention. We, in the third world, sincerely hope that those who preferred to remain outside may emulate this example and join the rest of the world community in making the convention a living reality. In addition to the inbuilt safeguards in the convention itself the interim regime for the Seated Area established by Resolution(The author expressed this in his statement in the final Plenary of the First part of the Session of the Preparatory Commission in Kingston, Jamaica in April and again in September in Geneva 1985 on behalf of the Group of 77 as its Chairman,) gives the developed countries added advantages, These countries, at present enjoy the privilege of possessing appropriate Seabed raining technology and as such may enjoy monopoly under Resolution 11 in the field of deep seabed mining for decades to come. They, by working within the scope of the convention, would not only gain the advantages of guaranteed access to the resources of the oceans but would also be able to work hand in hand with the rest of the international community for the benefit of mankind as a whole. This would earn them both momentary benefits as well as the appreciation of the international community.