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 of the Seas,” published in 1609), the Dutch legal scholar Hugo Grotius, argued that the ocean’s bounty is inexhaustible, as limitless as the air; and thus, it “cannot become a possession of any one.”  It was assumed, common knowledge at the turn of the 17th century and indeed for the subsequent four hundred years or more, that the ocean’s fish and seafood stocks, and its abundant mineral resources, could never be depleted.   Thus, there was no need to divide up the seas into zones belonging to one state or another.  States had no legal monopoly over any ocean resources, and no rights to exclude competitors from even their adjacent seas.

The only exception, suggested in the discussion above, was a narrow security belt adjacent to a state’s coast in which customary law recognized a right to self-defense.   This exception was suggested by the principle:  terrae potestas finitur ubifinitus amorum vis (“the dominion of the land ends where the power of law terminates”).   Hence, the legal fiction that “dominion of the land” could be deemed to extend into the immediately adjacent water of a coastal state, but only and precisely as far as early modern artillery, positioned on a seacoast bluff, could fire projectiles to protect the state’s land border. 

Eventually this exception evolved into a coastal state’s legal right to claim sovereignty over a three-mile territorial sea.  Why three miles?  Because three miles was used as a proxy for the furthest expected distance a cannonball might reach if launched from the shore , hence the territorial boundary became known as the “cannon shot” rule.  If a state had the naval power or police capacity to exclude unwanted fishing vessels or commercial ships beyond the three-mile limit they might act accordingly, but they could not claim the authority or imprimatur of international law. Actions vis-a-vis other states or foreign naval powers, commercial vessels or fishermen beyond that narrow limit were subject to no recognized law or rules at all.   

In this system the principle of “freedom of the seas” coincided with the development of naval capacity among Europe’s imperial states, and, more importantly, commercial fishing fleets.  Freedom to navigate and explore without interference from competitors went hand in hand with freedom to exploit the resources discovered, and in the case of migrating fish stocks, to chase and harvest them across vast distances from the fleet’s home country.  To the victor belonged the spoils.  The oceans’ bounties beyond the cannon-shot range were free to all – or whoever got there first and could defend themselves.  Thus, as one might predict, the system generated incentives to overexploit discovered resources and to generate conflicts between major powers at sea.  “Free to all” evolved into a commercial and often military “free-for-all” of European resource competition throughout the seven seas.

 

Exploding energy demand and the unrelenting global hunt for oil

 

 

Garrett Hardin’s The Tragedy of the Commons wasn’t published until 1968.  But the biological limits of living resources, the risks of overexploitation generated by open access to common resource pools, the resulting depletion of the most valuable fisheries, and the corresponding threats to endangered species – all of these features of unregulated commons highlighted by Hardin’s essay, at the dawn of the “international environmental movement,” played out at the dawn of Europe’s imperial expansion. 

Consider, for example, the rise of the European whaling industry in the early 1600s, and the immense economic activity it generated over the next two hundred years, until its demise with the near extinction of the bowhead whale in its traditional habitat in the North Atlantic and Arctic Seas.   (See John F. Richards’ brilliant account of this history in The Unending Frontier: An Environmental History of the Early Modern World, University of California Press, 2003).  Basque, French, English, Dutch, German, Russian, Danish, and Swedish whaling fleets – respectively financed by royal endowments, state commissioned monopolies, national banks, chartered trading corporations (such as the Dutch Noorsche Compagnie), and multinational business conglomerates (such as the Russian-British Muscovy corporation) – competed with each other to capture the richest hunting grounds.  Over the subsequent decades extensive disputes erupted between states concerning their respective commissioned whaling fleets and the control over harvests. 

What pushed the whaling industry to such extremes?  Among many factors, the most important was the hugely increasing need to secure energy supplies for the national domestic market, and the corresponding colonial and global energy market demand.  Street lamps had transformed the nightlife of Europe’s cities; the provision of abundant artificial light enabled municipal denizens to enjoy the cosmopolitan life, and to travel by coach across roads and boulevards, after sunset, and what was first a wonder swiftly became a necessary expectation of urban dwellers.  These energy demands were satisfied by the achievement of a secure infrastructure guaranteeing sufficient harvesting of whales, and the extraction, transportation and delivery of their oil to light up Paris, London, and every other modern city and town across the continent. 

As for the whales, demand outstripped supply.  The eastern Arctic Bowhead whale, the oil of which was especially high quality, and thus highly in demand, became nearly exterminated as a species.  Its breeding grounds, in the waters between Greenland and Spitzbergen, had been harvested by too many competing whaling fleets.  According to Robert C. Allen and Ian Keay’s accounts in their article “Bowhead Whales in the Eastern Arctic, 1611-1911”, the Bowhead whale adult population had numbered tens of thousands in the early 1600s, vastly diminished by the late 1700s, and was eventually reduced to near zero.

 

Harry S. Truman and U.S. petroleum strategy

 

From 1609, we navigated, explored and exploited the oceans according to the principles of Mare Liberum   But the Grotian faith in limitless ocean resources turned out to be ill-founded, and the old rules became a recipe for ecological disaster. 

In the mid-20th century, the Grotian system came to an end.  It was not because of environmentalism; although, to be fair, its demise coincided with an understanding that fisheries were being decimated and states had very little power to restore them.

The first step was initiated by U.S. President Harry S. Truman.  The Truman Proclamation that was issued on September 28, 1945 unilaterally claimed for the United States exclusive jurisdiction over all living and nonliving natural resources on the subsoil and seabed of its entire continental shelf.  The proclamation, emerging from U.S. federal inter-agency strategic deliberations initiated by FDR in the last years of the war, was based above all on considerations of post-war domestic economic development.  Specifically, the proclamation states that “the Government of the United States of America, aware of the long range world-wide need for new sources of petroleum and other minerals holds the view that efforts to discover and make available new supplies of these resources should be encouraged.”  The form of such “encouragement” would be the assertion of U.S. monopoly control and management of hydrocarbon development in the vast new offshore territory for the exclusive benefit of U.S. commercial oil producers and consumers, 

On June 23, 1947, Chile followed suit, proclaiming sovereignty over its continental shelf throughout a 200-mile zone from its mainland coast, although it did so for a different reason:  in an effort to restore its commercial whaling industry.  Then Peru, trying to protect its tuna stocks from U.S. fishing boats, followed suit along with Equator and Argentina.  Within thirty years, 27 coastal states in regions throughout the world had joined Chile in following Truman’s example.  Multilateral initiatives emerged in an effort to harmonize maritime boundary rules.  A 1967 speech to the United Nations General Assembly by Arvid Pardo, Malta’s UN Ambassador, spoke eloquently of the need to protect ocean ecosystems.  In 1973, the UN Conference on the Law of the Sea was convened; its work concluded less than a decade later.

Success in achieving this goal, in the face of extraordinarily difficult challenges and next-to-impossible odds, can be attributed in large measure to the enormous diplomatic skill, tireless effort and personal dedication of Singapore’s Tommy Koh, the Conference President.  Of course, UNCLOS reflected the collaborative effort of statesmen and legal experts from all of the participating countries -- most especially the United States -- but the enormous barriers to consensus among coalitions of states representing the post-war geopolitical fault-lines would arguably not have been overcome without Koh’s procedural creativity, negotiation process design, and logistical finesse.

Today, among the world’s large, highly developed nations, there is only one holdout:  the United States.  Our failure to ratify the Convention is ironic, given America’s leading role in the UNCLOS negotiation process.  Moreover, it is extremely misguided, as the United States is the treaty’s greatest beneficiary.  At U.S. insistence, UNCLOS confirmed in law the fundamental principle of navigational freedom (including the right of U.S. military and commercial vessels to transit through international straits, and U.S. submarines to pass through them).  Moreover, UNCLOS recognizes U.S. territorial expansion greater than any nation on earth, effectively extending American control over resources across a vast area larger than the entire U.S. land mass.