Law of the Sea at risk of being sunk by U.S. Senate
By Jonathan Power
LONDON (JP): The seas and the oceans that surround us, some two-thirds of our planet, are largely lawless. Three hundred and fifty years ago when Hugo Grotius formulated the doctrine of the freedom of the seas, laissez faire seemed a magnificent idea. "Let no man possess what belongs to every man". But this is the age of giant tankers, oil-spills that destroy whole coasts, traffic jams in the English Channel and the Straits of Malacca, declining fish catches and the beginnings of a gold rush for minerals under the sea that could be the biggest smash and grab since the European powers at the Berlin conference in 1865 carved up black Africa. Laissez faire no longer quite suits the times.
It is these problems of the post-Grotius are that occupy the Law of the Sea Conference which at long last after 26 years of negotiation is due to come into force on Nov. 21. Never before have the nations of the world attempted to define the rules before crossing the frontier. It is an historical milestone in the annals of nation-state competition and commercial exploration. Moreover, if it succeeds in arranging for mankind a fair distribution of its common patrimony of the seas, it will establish precedents that could be applied to a multitude of man's endeavors. Not just earthbound ones, like the slicing up of oil-rich Antartica or weather modifications, but the frontiers of the next generator-the moon, the planets and outer space. The Law of the Sea could in its own way be a Magna Carta for the 21st century.
Tragically, the Law of the Sea is now in danger of foundering on its own rocks. After years of antipathy by Reagan and Bush, the Clinton Administration is at last moving to join 60 other nations to ratify the treaty. But the same anti-collectivists who persuaded Reagan and Bush to distance themselves are now organizing their forces in the U.S. Senate to hole the treaty below the water line.
The irony of all this is that it was the Republicans led by President Richard Nixon who started the negotiating ball rolling. In a speech, (for all we know crafted by his then speech writer, William Safire, who these days is an ardent foe of the treaty), Nixon called the seas "the common heritage of mankind". He then proposed a negotiating position so generous that, had the Third World grabbed it instead of debating it, it would have given them a better deal than the one that would have been concluded if Jimmy Carter had beaten Ronald Reagan.
Nixon's policy on this was an expection, both for him and for America. Most of the time the American attitude to international law has been ambiguous and uncertain. It was an American president, Harry Truman, who first challenged Hugo Grotius. In 1945 he proclaimed the jurisdiction of the U.S. over the seabed resources of the continental shelf. Three years later, Chile, Peru and Ecuador raised the stakes by claiming 200 mile maritime zones and seizing U.S. tuna boats fishing in their waters.
It was in an attempt to find some accommodation between These new coastal jurisdictions and traditional high-seas freedom that the United Nations-sponsored Law of the Sea conference was convened. The result was one of the great negotiating texts of all time, weighing the interests of continental national like the U.S. and Russia, islands like the Philippines and Jamaica, and landlocked states such as Austria and Chad.
The treaty rolls back existing claims of territorial jurisdiction wider than 12 miles. It writes into international law the right to free and unimpeded passage through the 100 straits that are narrower than 24 miles wide. It would apply to all ships whether military or civilian, whether on the surface of submerged. And, while recognizing exclusive 200 mile economic zones for coastal states, it would not allow them to restrict the passage of ships or the overflight of planes of other nations.
None of this is now considered controversial. What bothers the Reaganites and their successors are the rules and provisions for deep sea mining. They would like to see a free-for-all where the richest and most technologically advanced nations grab the rich mineral nodules at the bottom of the vastly deep before anyone else. Not surprisingly, the weaker nations and the landlocked want to see a more equitable division of the spoils that in traditional law belong to everyone. The Law of the Sea negotiators have come to a reasonable compromise preserving the right of every nation to a share of mankind's common heritage but not destroying the economic incentives of rich-world mining companies.
It is a fragile consensus, It has taken 26 years to achieve. The American government, after a 12 year hiatus, is now behind it, as are the other leading industrial nations. Unilateral torpedo action by the U.S. Senate would sink this treaty. It would be a remarkable opportunity lost.