THE LAW OF THE SEIZE

By René Wadlow

June 8 of each year has been proclaimed by the UN General Assembly as the Day of the Law of the Sea. However, according to my friend John Logue, who had participated with me as non-governmental organization representative in the long negotiations in New York and Geneva, it should be called “the Law of the Seize.”

What started out in November 1967 with a General Assembly presentation by Ambassador Arivid Pardo of Malta as a call to establish a new political and legal regime for the ocean space ended in August 1980 with a draft convention. It was a mixed bag of successes and disappointments, but that convention has now been ratified by 162 States.

For world citizens, the quality of the Law of the Sea Convention was of particular significance. The greater part of the oceans has been considered res communis, a global common beyond national ownership. Furthermore, the physical nature of the oceans suggests world rather than national solutions to the increasing need for management of marine resources and the marine environment.

World Citizen Thor Heyerdahl was one of those who called attention to the dangers of ocean pollution coming to Geneva to speak for world citizens during the Law of the Sea negotiations. The oceans and the seas remind us that the planet and not the State should be our focus. A holistic view of life arises from our interdependence as a species and our dependence on the life system of nature. World citizens have stressed that a balanced, sustainable eco-system will only emerge if our political, economic and ethical policies coincide in building a more stable and more peaceful—in short, a more human—planet.

(C) The Economist

Establishing rules for the management of the oceans was a real possibility in bringing about an increase in the awareness of the earth as our common home. However, the UN Law of the Sea Conference was first and foremost a political conference with over 160 States participating. From the outset of the conference, it was agreed that the convention had to be drafted by consensus in order to create a political and legal system for the oceans accepted to all — to manage what Arivid Pardo had called “the common heritage of mankind.”

During the negotiations, there were groupings that cut across the Cold War divisions of the times, especially within a group called “the landlocked and geographically disadvantaged countries.” There were also informal groups of persons who acted in a private capacity, a mixture of nongovernmental organization (NGO) representatives, legal scholars, and diplomats who prepared suggestions on many of the issues of the conference. These issues included the economic zones, the continental shelf, scientific research, marine pollution, and dispute settlement. Such propositions were taken seriously by the government negotiators, in part because few diplomats had the technical knowledge needed for making decisions as well as the creation of a new international organization, the Seabed Authority.

However, in practice, government negotiators are more used to working for the “national interest” and in defending the idea of “territory,” both on land and on the sea. Boundary-making is a primordial activity. Various theories have been advanced to explain why, many of them derived from our animal ancestors. However, ocean boundary problems are more difficult than building a wall on land. As Douglas Johnston and Mark Valencia write,

The forces of nationalism were too strong to be swayed by Pardo’s appeals to international cooperation and technocratic rationality. Instead the coastal states, developed and developing alike, saw in the newly available ocean areas an unexpected windfall, offering the prospect of a previously unimagined extension of their natural resource base. The economic goal of national autonomy had prevailed over the interest in global cooperation, setting in motion the processes of establishing vast national enclosures of offshore areas, especially those enclosures consonant with the new exclusive economic zone (EEZ) regime. International cooperation had yielded to national autonomy.¹

An outstanding first attempt at codification of the law of the sea was the work of Hugo Grotius, the Dutch jurist widely regarded as the forefather of international law as we know it today. In 1609 Grotius published Mare Liberum (A Free Sea), a book in which claimed that the sea was international territory and thus free for all nations to use in their usual conduct of trade with one another.

Conflicts over national sea boundaries are particularly strong in the Pacific Ocean among China, Vietnam, the Philippines, Japan, Taiwan, and Cambodia, with India and Indonesia watching closely. The disputes arise largely because of the claims of waters around small islands as national territory. Most of these islands are not inhabited, but are claimed as the starting point of “territorial waters.”

Originally, the disputes concerned exclusive fishing rights within national territorial zones. Now the issues have become stronger, as it is believed that there are oil and natural gas reserves in these areas.

Concerning China’s dispute with Japan (which is also largely true of China’s policy with other Asian countries), Krista Wiegand writes,

China’s current strategy to negotiate with Japan over joint development of natural gas and oil resources outside the disputed zone seems to be the most rational strategy it can take in the disputes. Rather than dropping its territorial claim, China continues to maintain its claim for sovereignty, while at the same time benefiting from joint development of natural gas resources. By maintaining the territorial claim, China also sustains its ability to confront Japan through diplomatic and militarized conflict when other disputed issues arise.²

Territorial sea disputes can be heated up or cooled off at will or when other political issues require attention. We are currently in a “heating up” stage. Thus for June 8, in honor of the Law of the Sea, we can consider how best to resolve territorial disputes by having a broader view of the common heritage of humanity.

Prof. René Wadlow is President of the Association of World Citizens.

Notes

1)   Douglas M. Johnston and Mark J. Valencia. Pacific Ocean Boundary Problems (Dordrecht: Martinus Nighoff Publishers, 1991, 214pp.)

2)   Krista E. Wiegand. Enduring Territorial Disputes (Athens, GA: University of Georgia Press, 2011, 340pp.)