Tuesday, March 16, 2010

'Ordering the Oceans: The Making of the Law of the Sea'

This book review appeared in the New York City Tribune on Wednesday, November 11, 1987. A somewhat shorter version was published in Millennium: Journal of International Studies, Vol. 16, No, 3 (Winter 1987).

An Optimist Looks at the Still-Unratified Law of the Sea

Ordering the Oceans: The Making of the Law of the Sea, by Clyde Sanger, Zed Books, London, $11.50, paperback, 225 pp.

Ocean politics have been at issue at least since the day in 1492 when Columbus set forth from Barcelona in three small ships destined to prove that one could cross the vast Atlantic and return safely.

By the 17th century, ocean politics occupied the minds of sailors, scholars, and statesmen, who all had their own views of what the “law of the sea” should be.

In England, John Selden held that the oceans could be claimed and divided by governments just as land territory was. English monarchs appreciated the idea of extending their sovereignty in this way. Across the North Sea, the Dutch lawyer Hugo Grotius expressed the view that the oceans, beyond a narrow strip along the coasts of countries, belonged to no one and should be free for navigation by all vessels, whatever their ownership. The debate of “mare clausum” vs. “mare librum” was eventually enforced by the British navy, as that state came to see the value of such freedom for a maritime power.

As technology developed and more sovereign states came into being, however, it became clear that the law of the sea as it stood was inadequate to cover the issues of the later 20th century. Exploitation of the continental shelf, conservation of fisheries, and the discovery of mineral resources of the seabed made jurists, diplomats, and businessmen acutely aware of the inadequacy.

In 1958 and 1960 the United Nations sponsored two conferences on the law of the sea, each adding conventions that in part codifies existing customs and in part dealt with the new problems. Yet the effort was incomplete. In 1967, after a famous speech by Malta’s U.N. Ambassador Arvid Pardo that proclaimed the oceans “the common heritage of mankind,” there was set in motion the Third U.N. Conference on the Law of the Sea, or UNCLOS-3.

Sanger’s book concentrates on UNCLOS-3 and discusses in detail the negotiations from 1973 to 1982 that led to the signing of a new, comprehensive Convention on the Law of the Sea. It is a workmanlike book that presents a fairly complete picture, but it is flawed.

The first flaw is this: Sanger, as a Canadian journalist, had special access to Canadian diplomats and politicians who participated in the conference. The irritating result is a painting of the Canadian delegation as the most concerned and most effective of all the participants. Moreover, the Canadians seem to be the saviors of the convention. Whenever an impasse occurs, a clever Canadian comes up with a compromise: the Canadians build bridges and coalitions.

A worse flaw may be Sanger’s bias toward not only supporting the convention as it stands -- a convention that was rejected by the United States, Great Britain, and West Germany -- but a bias against certain changes made during the negotiation process to liberalize the oceans regime, changes instigated by these Western powers.

The reason that these three countries refused to sign the convention was a fundamental disagreement over Part XI, the articles establishing international control of deep-seabed mining in the area outside national jurisdiction. Sanger presents the decisions of these three states as a shortsighted, ideological decision motivated by the lobbying of mining companies that prefer not to be regulated by an international regime.

To Sanger, the problem faced by the industrialized countries had its locus in the provisions for mandatory transfer of technology from mining companies to the International Seabed Authority and thence to the developing nations. What he fails to acknowledge is the damage caused to free enterprise and free trade by the precedent set in this treaty. For the first time an international body is given power to engage in a major commercial enterprise involving valuable natural resources. It is also at the same time both regulator of and competitor with private enterprises (and some state-owned concerns as well). Seafarers may blink at this barnyard metaphor, but a clearer case could not be found: The Law of the Sea Convention puts the fox in charge of the chicken coop.

This is a dangerous precedent and despite all arguments to the contrary, the United States and its allies were right to stand firmly against it.

It was a mistake to negotiate a comprehensive treaty, designed from the outset as a package deal. The one exception -— the international law on the emplacement of weapons on the seabed -— was negotiated separately at the Geneva Disarmament Committee. At UNCLOS-3, the intrusion of Third World ideological considerations could have done considerable damage to the eventual treaty on seabed weapons, what is after all an essentially U.S.-Soviet Union issue and agreement.

Much in the Law of the Sea Convention is in the interests of the United States, and our diplomats should work hard to see that those provisions can be transplanted into another treaty (or treaties). Only the noxious Part XI deserves full-scale rejection.

The Convention has, after four years of being open for signature, still not been ratified by enough countries to enter into force. Perhaps it never will be. I suggest that ten years from now Clyde Sanger publish a second edition of Ordering the Oceans to assess his optimistic predictions. He may be sadly surprised by the course of ocean politics.

Richard Sincere is a Washington-based foreign policy consultant who writes frequently on international affairs.

1 comment:

CaitlynA said...

I certainly agree with your comments about the book overhyping Canada's contribution to the negotiations. Their insertion of the 'production limit' into Part XI was one of the 'killer provisions' that kept the US from joining the convention, and it was a provision that whose only value was in domestic canadian politics. Even winning as much as they did, Canada did not join the Convention until 2003, nine years after the Convention came into force.

That said, the 1994 Agreement on Implementation of Part XI" finally resolved the problems that the United States had with the 1982 Convention. No surprise since the consultations and negotiations leading to that document were based on President Reagan's six criteria for a Convention that he said he would support.

Now we are in the position where the US is the only major power that isn't party to the Convention (I suppose Turkey might count as the next most significant non-party, and they are out because of a narrow dispute with Greece over access to the Aegean Sea). Our domestic ocean mining industry, which Reagan sought to save, collapsed as the home countries of foreign investors and partners joined the convention. Now there are 8 ocean mining groups working under the Convention (Germany, France, Japan, Russia, China, India, South Korea and a group of east european states) while the sole remaining US ocean mining firm waits for the US to join the Convention before it can move ahead.

We are now in a spot where opponents of international engagement have rewritten history, claiming that Reagan's objections to the convention were not limited to Part XI - this in spite of the written record of Reagan's decisions and statements. Our ability to lock in the important provisions of the Convention as they are now has been blocked by ignorance and fear of engagement with the rest of the world. This needs to be rectified before practice under the Convention and laws based upon it are used to alter its interpretation or to justify its amendment in ways detrimental to the US.