Learning to Play Chess on Water

Jonathan D. Greenberg, Lecturer in Law and Public Policy, Stanford University, and Counsel, Heenan Blaikie LLP

For Professor Srđjan Darmanović

The coming into force of the United Nations Convention on the Law of the Sea (UNCLOS) launched a revolution in global political economy and the legal structure of international relations.  In one fell swoop, the world’s coastal states received perhaps the greatest economic windfall in the political history of the world:  monopoly rights over vast portions of the world’s oceans that had previously been regarded, from time immemorial, as global commons.   At the same moment, they assumed unprecedented new obligations to sustainably govern these enormous maritime territories.  For the first time in the history of political geography, coastal states are well-positioned to delimit and effectively manage huge offshore zones under a well-formed regime of legal procedures, protections, rules and rights. 

Why, then, are they often failing to do so?  If well-developed law exists and enables states to govern defined maritime areas adjacent to their coasts, why are there so many unresolved maritime disputes?  If maritime boundary delimitation methodology is clear and the benefit of its application so high, why are so many boundaries not delimited?  I discuss several alternative strategies that states can pursue to achieve successful results, especially when negotiations are stuck, and longstanding disputes never seem to go away.   First, to set this discussion in historical context, it is necessary to understand how the international system operated before and after UNCLOS came into force.

What is a state?

Max Weber insisted that this question be answered sociologically:  “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”  Several corollary principles follow.  First, when a state fails to obtain such a monopoly, we understand that it has failed in its core function, and it becomes a security nightmare for everyone in its neighborhood, or beyond.  Of course a state can also abuse its monopoly of violence through authoritarianism and repression; but no one doubts that a totalitarian state is a “state”. 

Second, as Weber notes, “’territory’ is one of the characteristics of the state.”  In turn, this territorial component of state power is congruent with the legal concept of national jurisdiction, the prescribed boundary within which a nation’s laws can be enforced by its judicial and police authorities.   Thus the English common law provides that “all legislation is prima facie territorial.”  As summarized by Mr. Justice Holmes in American Banana v. United Fruit Co. (1908):

Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.  But the word commonly is confined to such prophesies of threats when addressed to persons living within the power of the courts.

Third, implicit in Weber’s formulation is the idea that a state has the right to self-defense, i.e. to defend its territorial borders and the people living within them.  Indeed, absent extraordinary circumstances (e.g. UN-endorsed international intervention following Iraq’s 1991 invasion of Kuwait; NATO bombing of Serbian artillery outposts in the hills above Sarajevo, 1994-95), no institution other than the state can play this role.

Note that each of these concepts – territory; jurisdiction; self-defense; the monopoly of physical force – is subject to precise geographic constraints.  Specifically, and again absent extraordinary circumstances (e.g. the same exceptional examples noted above), the exercise of legitimate state authority is limited to the physical areas defined by demarcated land boundaries on international or regional maps.

As a result, across the vast expanse of human history, states had no legitimate jurisdiction or control over the world’s oceans or seas.  The territory defining state power and its exercise, stopped at or very near the water’s edge. 

This fundamental limitation on state authority, its confinement to the physical territory of land boundaries, was an inherent, defining characteristic of the nation-state from its emergence in the early modern era until a revolution in international law took place the late 20th century.  This revolution happened suddenly (indeed, on a precise date:  December 10th, 1982), when the United Nations Convention on the Law of the Sea (UNCLOS) was signed by 119 countries on the first day it opened for signature.

In sum, the history of the past 500 years and perhaps a thousand years is inseparable from the history of the evolution of the nation-state as the dominant political organization of human communities, and the primary unit of international relations.  But the emergence of UNCLOS represents a revolutionary, transformative moment in that history – vastly expanding the territorial reach and resource control of coastal states.

 

The international legal history of the oceans

 

In Mare Liberum, (“Freedom

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