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The oceans are as vast as they ever were, but enormous areas have been swallowed in the advancing jurisdiction of coastal states. Such states, especially those in the Southern Hemisphere, must see, or be persuaded to see, their own self-interest in mare liberum, freedom of the seas.
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However, if the words of spokesmen from the Group
With the end of the Third United Nations Conference on the Law of the Sea, the Western alliance confronts a new ocean regime, which requires rethinking of Western interests and priorities, and new economic, scientific, technical, and political initiatives. The new structure of the Law of the Sea demands a new maritime strategy for the industrialized states of the West.
The new regime is embodied in the conference’s product, a comprehensive 1982 Convention on the Law of the Sea signed in December in Montego Bay, Jamaica. Heralded as a new constitution for the oceans destined to remake the world in the image of the New International Economic Order, it nevertheless bears the marks of past schemes that dominated the seas, faltered, and passed into oblivion. The convention is founded on a persistent jurisdictional seaward creep and a progressive compartmenta- tion of the oceans. And for reasons unrelated to these extended zones of national jurisdiction, the United States did not sign it.
The U. S. administration objects to the provisions regarding the seabed, which have also earned the opposition of most of the still unproven seabed mining industry. Last year, the United States sent former Secretary of Defense Donald Rumsfeld to the capitals of its European allies to plead the case for remaining outside the treaty. But the navigational provisions, the exclusive economic zone, the archipelagic regime, and the continental shelf regime do have substantial U. S. approval. Yet, this consensus, covering the contentious straits and territorial sea issues that eluded agreement at the 1958 and 1960 Conferences on the Law of the Sea, will not be formalized. The Group of 77, representing the less-developed nations of the Southern Hemisphere, insist on a “package deal”: navigational rights for the United States and other maritime powers, in exchange for acceptance of the seabed provisions.
Primary points of the seabed provision are the creation of the:
► “Area”: The seabed and the subsoil thereof which is beyond the areas of national jurisdiction as defined in the treaty and which is “the common heritage of mankind” ► “International Seabed Authority”: The body that administers the resources of the Area ► “Enterprise”: The Authority’s organ designated to carry out commercial activities in the Area, including the transporting, processing, and marketing of minerals Though much may be lost, much remains. The basis exists in state practice for wide consensus on the nonseabed provisions. Many states implemented the provisions of the 200-nautical mile exclusive economic zone in the summer of 1977. Others will undoubtedly do so in the near future. Thus far, peaceful transit of international straits, long a right accorded to all states, has not met with interference. To a large extent, the new treaty codifies this previously existing state practice. It standardizes the territorial sea at 12 miles, making passage through more than 100 straits contingent upon the right of “transit passage” granted by the treaty. But it grants archipelagic boundaries to such states as Indonesia and the Philippines whose entire land territory is made up of islands, while denying such status to the clearly archipelagic island groups o continental states such as Hawaii. As for the continent shelf regime, the treaty specifies complex and difficul - to-measure coastal state limits extending up to 350 nautical miles.
77 are to be credited, the free passage of ships and aircra of nonsignatories through straits and the right claimed by the United States to extract strategic minerals from the seabed may be threatened. These threats have alluded bot to legal challenge and to the necessity for continuous nava protection of U. S.-flag vessels engaged in seabed mining'
In the April 1966 Proceedings, John P. Craven Pr£^ dieted nations would deploy a “wide class of commercia and military vehicles” in the broad ocean basins by t year 2000. In the years intervening, much has occurred to confirm that estimate. The comprehensive convention displays the intent of the majority of the world’s sovereign states for this occupation of the seabed to be under tn jurisdiction of a new international authority, over whic the less-developed states of the Southern Hemisphere sha have control. ^
These economic, political, and legalistic aspirations
nations have shrunk the world juridically. The oceans,
however, remain as vast as before. No nation can tru
fully boast of having the capability to enforce its laws in
its new oceanic jurisdictions. Few can even reconnoit
their new responsibilities. The necessary high-resolution
photo satellites will assuredly generate the need for coop
eration with those few nations that have new technology-
the
But no technology promises to substantially change i speed of advance of ships, which is essential to the P°'|U cal meaning of sea deployment. A ship’s speed of advance is proportional to the cube of applied power. Today, aS when Craven wrote his treatise on the future of the sea bed, there are no projected propulsion advances that cou reasonably and economically provide the large additions of ship propulsion power necessary to make a signif>ca change in transoceanic voyage times.
In addition, the economic benefits of sea transp0* remain superior to every other form of travel. The real co of movement by sea is about 500 British Thermal Units (BTUs) per ton/mile; by rail, about 700; by truck, aboo 5,000; and by aircraft, about 15,000. Seaborne transit ha* a large advantage over other sources of transportation- the case of the much vaunted large, long-range cargo a*r craft, sea transport is a critical precondition, for air traits port is powerless to move large cargoes anywhere, merely trades relatively small amounts of high-prior1. and speed for large quantities of fuel and stores that nin be prelocated, usually by sea. Today, as ever in maritinie history, access to the sea is an irreplaceable necessity-
46
Proceedings / July
198-5
For trade, for the burgeoning ocean industry, f°r assurance of allies, for support of overseas forces, and i° the projection of political or military power, no substitute exists for ships, for navies, and for seamen. Budgeted and politicians can conveniently disclaim this truth as at1 artifact of a bygone era. Its dependence upon relationship* that change only slowly if at all and the similarity 0 modem ships to those of centuries ago make it easy 10
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a ePendent on the sea, as it has always been. The sea is
the rtlec^*Um our cultural and economic unity. It defines ‘ scope of our history and our future. It is our lifeline.
That Middle
ack sea power in its Mahanian sense as outmoded. ii^sP'te such simplistic and popular argumentation, the Portance of access to the sea and its resources has been ^central issue before the Third United Nations Conference the Law of the Sea since its inception in 1973. It has en the foundation of the negotiating strategy of the ^r°up of 77, the “package deal.” In every capital of the dHli ern ar>d Southern hemispheres, diplomats have been 1 led in the importance of access to the sea. aff *feC* ^ ' Mahan enumerated the principal conditions ecting sea power as follows: geographical position, ysical conformation, extent of territory, number of Pulation, character of the people, and character of the fj Vernment. Of these, the new ocean regime affects the s three. New ocean boundaries delimiting economic nes and the continental shelf, the territorial sea, and the aits regime signify the claim that access formerly toanted by mere geographical position shall be restricted Waters according to their location and the purpose of a ,ess’ such as transit, fishing, marine science research, resource exploration and exploitation. If, for example, tr SSa§e between two points can be accomplished without e nsit|ng a strait, that is, by transiting high seas or an c usive economic zone “of similar convenience,” the p, ect*ons of the transit passage regime are denied.* ysical conformation is altered by the new borders, „ . change the shape of the sea and make neighbors of are'°nS former|y separated by the high seas. Sea frontiers now no longer frontiers, but mere changes in medium, to °nc* wb<ch national territorial jurisdiction is extended ^distance dependent upon function and purpose, in i°W’ *hen, should the new ocean regime be interpreted is significance of sea power? Western security
the
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n estern society has generated a need for energy. ed holds the West hostage to the politics of the M
East, whence comes its most versatile energy source—oil. Repeatedly the victim of the “oil weapon” in this past decade, Western strategists now speak not of whether the oil weapon will be used again, but when and by whom. Barring a breakthrough in alternative sources not now apparent, the West has only a single energy option. An enemy could bring Western Europe to its knees, and the Western alliance with it, by cutting the flow of oil from the Middle East. An attempt to interrupt the Western oil supply, therefore, would be an action requiring prompt countermeasure.
Three major scenarios exist for an attack on Europe. First, the feudal societies of the Middle East might be subverted. Second, subversion and Cuban-style domination of coastal states along the oil routes could support interdiction, either through Mayaguez-type actions by puppet regimes, by Soviet-supplied and -trained proxy navies, or directly by Soviet naval forces. Third, the Warsaw Pact might launch a direct attack on Europe as a coup de grace after a weakened Europe, demoralized, founders in confusion.
If less-developed countries of the Southern Hemisphere fall victim to subversive insurgencies dominated by the expansionist policies of the Soviet Union, the Western alliance will find its rights of access to the seas threatened. Legalistic territorialist arguments would be used to justify claims against free use of the sea-lanes, the straits, and access to the far shores through special zones, enclosed seas, and historic bays. Nationalistic propaganda would be backed by well-placed Soviet naval and military aid. It would then be for the Western nations to decide, collectively or individually, whether access to vital straits and the far coasts should be a benefit available only to those flags under the protection of the Soviet Navy.
Ambiguity increases the safety of such measures without reducing their effectiveness. Proxies and the cover of subversion increase the difficulty of unifying the Western will. The new ocean regime, by increasing coastal state control of strategic sea routes, increases the threat to the West’s dependence upon Middle East oil. For the United States, the fall of Europe, the source of our culture, would have grave consequences. In the words of Edmund Burke, ”... when your fountain is choked up and polluted, the stream will not run long, or will not run clear with us, or perhaps with any nation.”
The Group of 77—inspired by Arvid Pardo’s plea for implementation of the principle of the common heritage of mankind in the high seas as they were defined in 1967-73, before extended jurisdiction—entered the law of the sea negotiations with high idealism. Their ideals were crushed by their own hands under their nationalistic banners. The treaty they have formed destroys the common heritage
47
On 10 December 1982, U. S. Ambassador Thomas Clingan signed the final act of the U.N. Law of the Sea Conference held in Montego Bay. But neither his nor any U. S. representative’s signature appeared at day’s end on the pages of the Convention, the smaller volume on Clingan’s right.
The West’s overwhelming need for energy, i.e., oil, holds it hostage to Middle East politics. The potential danger of the “oil weapon” became all too clear through the clouds of black smoke billowing from an Iranian oil rig damaged in Iraqi attacks in April 1983.
principle by its territorialization of the seas, reserving virtually all known ocean wealth, save the highly publicized and highly speculative manganese nodules on ocean floors, for the coastal states themselves. And for the Area, in which the tattered remnant of the common heritage principle is yet to be seen, they have reserved by implication a claim for the future, for the spatial extent of the Area is defined in the convention only by inference as the seabed space beyond the scope of national jurisdiction. As technology to occupy the seabed is developed and if the tenuous seabed industry should manage to overcome the obstacles that have been set in its path, the coastal states of the Group of 77, having a voting majority in the General Assembly as in any future law of the sea conference, can simply redefine the scope of their national jurisdiction. Craven’s prediction of seabed occupation would then be fulfilled in fact and in law.
Already, vast areas of high seas have been swallowed in the advancing jurisdictions of coastal states. If the trend for extended coastal state jurisdiction is continued, the last vestige of the high seas may vanish not long after the technological imperatives so aptly foreseen in 1966 provide the capability to occupy the deep seabed. The political basis for such a trend appears to have been established.
The doctrine of freedom of the seas expounded by Hugo Grotius in 1608 was written in opposition to the claims of Spain and Portugal for exclusive rights to the Pacific, the Gulf of Mexico, the South Atlantic, and the Indian Ocean. Its fundamental counterclaim was for equitable distribution of the resources of the seas.
The goal of extended national jurisdiction over the seas in this modem age is precisely the same. Coastal states without the implements of modem maritime technology are convinced that oceanic wealth goes primarily to the maritime powers which have the maritime technology— the owners of the shipping fleets, the distant water fishing fleets, and the explorers and exploiters of offshore oil. The corrective, they are sure, is extended national jurisdiction, which vests “sovereign rights” to ocean resources in their respective nations, ensuring that future exploitation of this wealth shall be subservient to their claims.
Thus, the development of the ocean regime in years to come, based on the course of the negotiations thus far, will be characterized by conflict between the principle of extended coastal state jurisdiction, on one hand, and the vestigial common heritage of mankind, on the other. The remaining rights of the high seas will be under attack from two sides by states holding a voting majority in the international diplomatic fora, such as the General Assembly and the specialized United Nations conferences. Members of the Group of 77 will likely continue to seek further
national control of ocean wealth. Some of those s A . instrumental in creation of the Area, the Authority, a^ the Enterprise will likely chafe under their regulations their own ocean industries grow. Qf
The principle of the common heritage is extendable, course. If it can be applied to the seabed, why not to fish in the high seas, as well as those in the exC US gy economic zones? Why not to the vast thermal ene resource of the tropic oceans? Why not to the access to ^ sea, and its navigational properties? Why should shipP not pay needy, less-developed countries a fee for access^ the oceans that wash their shores? Is the sea not a comm ^ resource possessed by all mankind, as are the resource5^ the Antarctic? The moon? The geostationary orbital tions for satellites? And, in a final jump of reason, as the mineral resources locked within the subterran reaches of the sovereign territory of nation states? * ,
mineral resources are there through no special natl°uj, virtue, but as an accident of fate. Should they not be eq tably distributed? f (^e
Despite the similar goals of Grotius’s freedom 0 ,
48
Proceedings / Jnb
seas doctrine and the territorialization of the seas bac by the Group of 77, there is an essential difference, right to the rewards from the sea are not based upon ^ ingness to bear the risks and hazards of the sea, but °n political power to control those who do bear those ris ^ There is an essential logical flaw in the Group 0 support of the establishment of the Area, the Author!
re tbe Enterprise. The Group of 77 has not protected the Warning common heritage of mankind against further ha^ePln§ jurisdiction. The members of the Group of 77 cj |6 ?reserved their national claims in their zones of spe- jurisdiction through carefully crafted definitions a 0 . d in the treaty. The claim on the resources of the *ls a shared one not supported by a definition of terri- 0r 3 extent. There is no logical technical, geographical, , Political limit to future national claims. As advancing elopment creates differing marine industrial capacities cra°k^ members the Group of 77, the voting block will it c ’ and with it the legitimacy of both the common her- §e and extended jurisdiction.
Itav Ven .tuday, Canada questions whether it should not fish6 {Ulasibction beyond the 200-mile zone over stocks of env' 31 Stra<^e the 200-mile boundary, and for special ec lronniental concerns reaching beyond the exclusive ormc zone in ice-covered regions. Archipelagic states tio^0" whether they should not have special jurisdic- for 3 ri.®bts in their narrow seas for safety of shipping and environmental concerns.
c,an an eaflier age, Spain, Portugal, Genoa, and Venice ■Wed ocean areas beyond their ability to govern, to def1^6’ 3nc* t0 contr°E Though they successfully their claims with force for a time, their jurisdic- PowUltimately before the persistent, multinational sea nav T tbe English, Dutch, and other nations, in both and merchant form, for ships are ubiquitous devices. a ,en taxes weigh heavily in one port, ships alter course anoth3'' eas'^’ at a cost °f about 500 BTU per ton/mile, to adv 6r’ baPP‘er place. Those whose trade and income are Wa^[se'y affected will either adapt or perish. Ralph °ne H° Emerson teE-s the story of Charlemagne weeping fleet ^ in a town of Narbonnese Gaul at the sight of a and ^ortbmen that entered port, alarmed his galleys,
„ P^t out to sea. Mahan calls this the “windward one’ ’ tbe ability to engage or refuse engagement on sail S,0vvn terms. The windward gage will always be the de r s advantage over the landsman. The windward gage °nstrates the ultimate futility of lines in the ocean. cla 30 S use °P the oceans is incompatible with mare d0c7r—closed seas. The year 1982 saw that discredited anc|r'ne S reemergence- What year will see its downfall is few v,3r cbange will not likely be accomplished by a by th °^°Ut nations, such as the United States, but rather Sph e emerging smaller sea powers of the Southern Hemi- °f t^re‘ in sPite of the veiled threats of ruffled spokesmen •Oar 6 ^°utb’ the days of gunboat diplomacy and letters of fijue are gone. The nations of the Southern Hemisphere of ^ See their own self-interest in mare liberum, freedom haD 6 Seas> as they have seen it in mare clausum. That can the sg0 °n^ when they themselves have the ability to use
sPre h E>rrncr day, the technology of the sea was wide- as . ' Many states had the resources to use the sea, such mai ln8 vessels that could circle the globe and accurate f0re-s °P navigation that permitted repeated voyages to °Ped^n Eorts- Stable trading relationships could be devel- Prod Markets f°r new agricultural and manufactured Ucts could be created. Whole societies were changed, and great wealth resulted. These states saw mare liberum to be in their interest, not the private reserve of a few.
The preferred Western strategy is clear. We must help the nations of the South realize the benefits of the freedom of the sea by helping them use the sea. The business of technology and capital transfer and of oceanic commerce and industry is based on the reality that the creation of wealth at sea as on land is not a zero-sum game, nor is it aided by narrow national interest. The Western alliance must substitute a true internationalism for a counterfeit one; it must amalgamate the ocean interests of Western nations with those of the South; it must create harmony and wealth by displacing those who would exploit conflict and poverty.
A positive strategy of leadership in joint programs of marine science research and applied marine technology will create new shared maritime interests and rediscover existing ones. It will encourage legal and political harmonization and promote mutual cooperative arrangements—economic, political, technical, and scientific.
The strategy foresees peace, order, and predictable behavior at sea. Compatible interests must precede the development of political relationships. From the resulting political decisions, legal arrangements will flow.
The ancient requirement for free, safe, and secure sea- lanes remains. The sea-lanes will be safest when their freedom is acknowledged to be in the interest both of today’s maritime powers and the new ones of tomorrow. The freedom of the seas rests on shared interests and international cooperation. Aiding developing coastal states to use the sea will reveal to them the sea’s ubiquity, its indivisibility, and its contempt for artificial boundaries.
The strategy of cooperation turns conventional wisdom upside down. For example, the techniques of sea surveillance are currently known only to a few advanced nations. Remote sensing and high-resolution ocean surveillance have dual capabilities. They are essential to management of ocean resources and to naval operations. They could be afforded by developing coastal states only in cooperative arrangements with advanced nations, but those nations are understandably reluctant to reveal either reconnaissance data or technology.
A forward-looking Western strategy would seize this opportunity at the earliest moment. The real question facing the West is not whether the nations of the Southern Hemisphere will have these surveillance resources, but whose they will use, under what arrangements, and with what implications for the security of the West.
The technological imperatives of the sea will be realized in the future as they have been in the past. If the West abrogates its moral responsibility for technical and political leadership at sea, it will have failed in its duty to lead the way to a stable, peaceful, and prosperous ocean regime.
Dr. Allen, an occasional contributor to Proceedings, is Associate Director of the Law of the Sea Institute at the University of Hawaii and is a teacher of political science and international law. He received his bachelor’s degree from George Washington University and did his graduate work at the University of Hawaii.
49
ln£s / July 1983