Volume 42 | Number 2 Spring 2007
Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It)
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II. Development of the Law of the Sea: From Freedom of Common Seas to Conflict Over Oceans
The development of the law of the sea, culminating in UNCLOS, serves as both a cautionary tale about the fragility of unmanaged international lawmaking and as an object lesson in how shared interests threatened by the potential for conflict can induce new agreement on a universal basis. Beginning with the earliest Roman customs, evolving to the British and Grotian ‘freedom of the seas,’ and continuing on to the postwar reliance on the consent and abilities of certain ‘specially affected’ States, the development of the law of the sea has followed humankind’s evolving needs and uses in the oceans. Pre-UNCLOS, the development of the ‘law’ was unilateralist and relied primarily on developing customary law, first under the guises of natural law and, later, by a narrow positivism. This worked passably well at a time when fish stocks were thought to be inexhaustible, a cannon shot could travel only three miles, and only a small number of States had any significant reach into the oceans. But the 20th century witnessed exponential growth in worldwide fishing, seabed mining technologies, new political and moral demands by emergent international actors, and continuously expanding civil, scientific, and military traffic on the oceans that overwhelmed the existing patchwork of customs and treaties. After several false starts, this disorder would yield the groundwork for a new consensus law of the sea.
A. “Ancient” Law of the Sea
The ancient Greeks had the very first formal rules regulating marine commerce, carriage, and ships—what might now be called ‘maritime’ or ‘admiralty.’25 The second-century Roman jurist Marcianus, in the first recorded juridical view of ocean space,26 wrote that the sea, its fish, and even coastal waters were “communis omnium naturali jure”27 or “common or open to all men by the operation of natural law.”28 Under this view, the oceans up to the shore belonged to all and could be appropriated by no one.29 The Emperor Antoninus struck a similarly naturalist tone, proclaiming: “I am the master of the land, but the law is the master of the sea.”30 (Of course, there was little need to further develop the law of the sea since, during this time, the Mediterranean was controlled by the Roman navy and surrounded by the Roman Empire.)31
B. “Classical” Freedom of the Seas: From Natural Law to Positivism
With the collapse of the Roman Empire, the fragmented European States began to compete and conflicts began to occur over the oceans, particularly concerning trade routes, fishing rights, transit taxes, and policing.32 By the 13th and 14th centuries, these developments led to the first real claims of jurisdiction to waters adjacent to States’ coasts.33 The Spanish and Portuguese proceeded over the next two hundred years to divvy up the entire ocean between themselves—all lands east from a line off Cape Verde were Portuguese and all those to the west were Spanish.34 Spain was also reserved the right “to sail . . . freely, securely, and peacefully” across the Portuguese ocean to the New World.35 “Thus, over a period of one thousand years, the Western world passed from a policy of total freedom of the sea to the principle of legal division of the entire ocean.”36
Increasing use of the seas over this period brought about a counterrevolution in the law of the sea that led to intellectual and legal effects that resonate today. This counterrevolution was led by the great Dutch jurist Hugo Grotius. As Spanish, Portuguese, and papal influence waned by the 16th and 17th centuries, and as commerce by sea expanded in Asia and the Americas, the Dutch East India Company commissioned Grotius to justify its trade routes in the Far East, despite extant exclusive Portuguese maritime claims there.37 The result was his seminal 1609 work Mare Liberum.38 Grotius looked to natural law for the view that the realm of commerce was beyond all earthly papal and religious authority and, since “no one can give away what he does not himself possess,” the Pope’s (and Portuguese) claims to oceanic trade routes in Southeast Asia were invalid.39
Grotius’s argument was more than just a rejection of papal authority over the oceans. He viewed ocean space as a common thing (res communis), open for all to use, but for no one to keep or abuse.40 His views echoed Marcianus from more than a thousand years earlier and remain pertinent today. To Grotius, the cornerstone of private, exclusive property rights was effective occupation, to which, beyond a narrow coastal band, the oceans were insusceptible.41 Grotius cautioned that resources and rights-of-way can be crowded out, exhausted, or consumed by a policy of open use, and, it is worth emphasizing, he argued that one’s right to the resources of the sea existed only insofar as it would not interfere with the interests of others to do the same in the present and future.42 He also suggested that benefits from common things should be enjoyed by all.43
In Grotius’s time fish stocks were thought inexhaustible and marine pollution and destructive fishing practices had not yet become a real concern. As a practical matter, this meant that actors would be unencumbered to use the oceans as they saw fit. In this vein, Grotius was readily appropriated by laissez-faire philosophy to support expansively ‘free’ high seas.44 By the 20th century, res communis responsibilities had been almost completely overshadowed by res nullius freedoms. Britain, its dominant Royal Navy, and its jurists can take much of the credit during this period for enforcing and ensuring these freedoms, tempered only by regulation of piracy and slave trafficking.45 John Locke,46 an Englishman who also had tremendous influence on the U.S. Constitution, looked to natural law to argue that property rights are not created until a person takes an object and mixes it with labor. This would mean that the ocean and its resources are unowned until, for example, a fisherman by his effort catches a fish. John Selden47 and, later, Cornelius van Bynkershoek,48 stressed custom and State practice rather than natural law to posit that offshore waters, for at least some distance, could be effectively controlled and defended, if not actually inhabited, while the waters beyond were res nullius.49 Thus, the pragmatic “cannon-shot doctrine” was born to set the breadth of the territorial sea at three nautical miles,50 approximately the distance a cannon on shore could fire out to sea.51 But the tumultuous 20th century would witness the end of Pax Britannia and, in its place, the development of a new legal order for the seas.
C. “Specially Affected States,” Unilateral Claims, and a Breakdown in Positivist Order
Russia’s 1911 claim of a six-mile territorial sea, with six additional miles of exclusive fishing rights beyond, presaged the turmoil for law and order on the sea that would follow for most of the 20th century.52 Based on the increasing range of artillery in an increasingly unstable Europe—as well as new demands for fishing and seabed resources—France, Italy, Spain, and the Ottoman Empire quickly followed Russia with their own extended offshore claims.53 After World War I, with England weakened, an increasingly assertive United States claimed for itself an extended “contiguous zone” wherein it held jurisdiction to prescribe and enforce its criminal law, particularly against liquor smuggling.54 The failure of the 1930 Hague Conference to agree on the breadth or definition of coastal waters subject to exclusive coastal State jurisdictions55 signaled the complete desuetude of the cannon-shot doctrine.56 Yet there was also no clear successor rule.
Complete freedom of the seas, beyond a narrow coastal band, suffered a procession of ever-grander new claims in the reconstructing post-World War II world. The first decisive move was U.S. President Truman’s two unilateral proclamations of September 28, 1945: the Fisheries Proclamation57 and the Continental Shelf Proclamation.58 These proclamations asserted new regulatory and exclusive rights in ocean areas well beyond the traditional three-mile limit. They also precipitated a varied array of unilateral claims by other States and new multilateral attempts to codify a law of the sea.
The Fisheries Proclamation asserted jurisdiction to regulate fishing59 beyond the traditional three-miles in areas “contiguous to [United States] coasts,” which Truman might deem as “conservation zones.”60 This Proclamation had roots in concerns from the 1930s over Japan’s technologically sophisticated and aggressive distant water fishing operations (particularly for salmon and halibut) off the Pacific coasts of the United States and Canada.61 With the attack at Pearl Harbor, this concern took on an additional “food security” dimension, especially since the Japanese fishing fleet had also been used for military intelligence gathering in the Pacific during the 1930s.62
Truman’s better-known Continental Shelf Proclamation went a step further than the Fisheries Proclamation and claimed an exclusive right to the “natural resources” of the “continental shelf beneath the high seas but contiguous to the coasts of the United States.”63 Here too, Truman reacted to the experience of the war and the U.S.’ position afterwards, where oil was an increasingly important strategic and economic resource.64 The Continental Shelf Proclamation’s “contiguous” definition of ‘continental shelf’ (a legal term not commonly used by geoscientists)65 was vague, but nevertheless, the United States used it to claim exclusive seabed natural resource rights as far out as fifty miles from the West Coast and two hundred fifty miles from the East Coast.66
Truman’s proclamations quickly became precedent for other States’ new, larger, and often differing unilateral claims into what had been res nullius. These new claims included differences both of degree (such as differing breadths for the territorial sea or exclusive offshore fishery rights) and of kind (such as new regulatory initiatives for research or pollution control). William Wertenbaker, reporting at large for The New Yorker in 1983, described the incongruous legal state of affairs for offshore rights between World War II and the adoption of UNCLOS:
[M]ore than ninety countries, including the United States, claimed control over fishing as far as two hundred nautical miles from their shores. Canada and the Soviet Union have regarded much of the Arctic as special areas subject to their jurisdiction. Canada, citing the risk of pollution, which has been seen as a growing threat by most countries, enacted a law that could, for instance, deny oil tankers the right of innocent passage . . . . While some countries came to the conference claiming rights only to fish or other resources, a number claimed total sovereignty over waters out to twelve, fifty, a hundred, or even two hundred miles offshore. Indonesia, the Philippines, Fiji, and other island nations claimed their interisland waters as their archipelagic waters. Three-mile sovereignty, traditional in European maritime law, is now claimed by less than half the number of countries that claimed it thirty years ago—twenty-one as opposed to forty-five; and while the number of countries in the world has more than doubled, those claiming twelve miles or more has risen from three to a hundred and seven. Fourteen countries assert that their borders and territorial waters extend two hundred miles out to sea. By 1978, only three countries made no territorial or economic claim whatever beyond three miles . . . .67
As human activities crept farther and deeper into the oceans, international conflicts began to grow out of legal differences where traditional sources and positivist methods of international law failed to tame this “creeping jurisdiction.”68 Indeed, the prevailing positivist view of international law actually encouraged coastal States’ increasingly bold claims by giving the imprimatur of legality to the most strongly held, even outright provocative, positions.69 The ICJ in particular pronounced views during this period on customary international law and the law applicable inter partes that emphasized rights acquired and lost by prescription. Without a comprehensive law of the sea to work from, the Court had only the manifest consent of the coastal States before it to consider as sources and subjects of the law. To put it another way, individual States had considerable and increasingly inequitable latitude to establish their rights vis-à-vis both other parties to a dispute and, by necessary implication, erga omnes the rest of the oceans and all other States. While in the abstract the manifest intentions of States may be straightforward markers for identifying applicable positive law, this individualized and relativist approach proved incapable of sustaining itself absent a broader and deeper agreement on the oceans as a whole.70
The ICJ’s 1951 Fisheries Case (United Kingdom v. Norway)71 set the course for emphasizing States’ unilateralist practices and claims as determinative of the law applicable inter se. The case arose from Norway’s seizure of British trawlers “equipped with improved and powerful gear” operating in parts of the fish-rich banks of the North Sea (fjords, bays, islets, and reefs along the jagged Norwegian coast known as the “skjærgård”) to which Norway had claimed exclusive fishing rights in 1935.72 Norway justified its claims on the basis of straight baselines longer than ten miles, an approach that would allow it to claim a convex rather than concave exclusive fishing jurisdiction for certain openings to the sea wider than ten miles. The United Kingdom maintained, by contrast, that ten-mile baselines were a “general principle” of international law.73 While the majority opinion recognized that “the delimitation of sea areas has always an international aspect” and “cannot be dependent merely upon the will of the coastal State,”74 it upheld the unilateral Norwegian claim.75 The Court did so on the basis of the “consolidation” of Norway’s longstanding “historic” assertion of exclusive fishing rights in this area off its coast as well as the lack of persistent objections to this practice by other fishing nations.76
This might not be so remarkable had the reliance on historic claims been limited to the otherwise vexing skjærgård. The ICJ’s judgment in the 1969 North Sea Continental Shelf Cases (West Germany v. Denmark; West Germany v. Netherlands) went further, however, to find customary law in the ambiguous, incomplete, and controversial 1958 Geneva Conventions and to accord definitive weight to the practice of just a small cadre of coastal States in doing so.77 These Conventions—concerning the Continental Shelf, the Territorial Sea and Contiguous Zone, the High Seas, and Fisheries and Conservation of the Living Resources of the High Seas—were drafted by the International Law Commission (ILC)78 and adopted by a vote in the first United Nations Conference on the Law of the Sea (UNCLOS I).79 However, UNCLOS I failed to reach general agreement “upon a specified breadth for a territorial sea or an unambiguous definition of a continental shelf.”80 UNCLOS I also failed—by a wide margin—to attract a majority of States to become party to the agreements, which itself called into serious question their legal efficacy.81 Two years later, the Second United Nations Conference on the Law of the Sea (UNCLOS II) also failed—by one vote—to adopt an agreement fixing the breadth of the territorial sea or the extent of offshore fishing rights.82
Article 1 of the 1958 Geneva Convention on the Continental Shelf provided the ambiguous and problematic “exploitability” definition for the legal continental shelf.83 Article 2 provided that States had exclusive sovereign rights to the natural resources of their continental shelfs.84 This Convention defined the continental shelf as extending: “to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas . . . .”85 This test of exploitability was the most problematic. It potentially allowed developed coastal States to expand their sovereignty as far as their technological capabilities and economic demands would allow.
This exploitability criterion, and the inequitable advantages it would endow to the technologically advanced, aroused great consternation at the time, particularly among inland, developing, and newly independent States. Like the doctrine of res nullius, which had earlier been used to justify colonial claims in Africa and Asia,86 Ambassador Arvid Pardo of Malta was worried that ‘exploitability’ would set off an unjust land and resources grab that could potentially claim the entire seabed.87 It was discomfort with these implications—Malta, after all, had achieved independence only three years earlier—that led Pardo to make his historic 1967 General Assembly appeal to convene a new conference on the law of the sea.88 Pardo was of the view that the world would soon experience serious shortages of metal ores and that the continental margin and deep seabed held nearly limitless mineral resources that would soon be technologically and economically within reach.89
Pardo’s speech endorsed what would become the central substantive and procedural elements of UNCLOS. Pardo’s first concern was that a “clear definition” for the outer limits of the continental shelf should be formulated to supplant exploitability.90 This would necessarily set off the deep seabed, as “common heritage of mankind,” from the possibility of national claims or appropriation.91 Pardo also proposed that this deep seabed area be managed by an “international agency” to oversee exploitation of mineral resources, marine scientific research, and damage to the seabed from, inter alia, nuclear waste and pollution.92 Finally, Pardo realized that “the concurrence of all [was] essential” to effectuate these sweeping rules for ocean space and so he recommended that a special and “widely representative” committee take up the work of preparing for a new law of the sea conference.93
Pardo’s speech found wide support and the General Assembly soon passed a resolution without any dissenting votes on the “[e]xamination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind.”94 The General Assembly also established an ad hoc, and later permanent, “Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.”95 This was followed in 1970 by the seminal General Assembly Resolution 2749 “Declaration of Principles,” passed without any dissenting votes, “[s]olemnly declar[ing]” that the seabed and its resources “are the common heritage of mankind” and that the exploration and exploitation of resources in this area “shall be carried out for the benefit of mankind as a whole . . . .”96 The work and structure of this seabed committee, which would take a comprehensive and consensus-based approach to the subject,97 together with the reservation of a common heritage, would be carried into UNCLOS.
Despite these developments in the General Assembly, as well as continuing conflicts between major maritime nations over the extent of offshore property and resource rights, the ICJ in North Sea Continental Shelf Cases viewed Article 1 of the 1958 Continental Shelf Convention as settled customary law and continued to stress the “inherent right” of a coastal State to unilaterally define and claim its rights as against the world in an offshore continental shelf.98 At first glance, the Court seems to have disavowed mere exploitability as determinative by stressing that the legal continental shelf was the “natural prolongation” of a State’s landmass under the sea.99 This might have suggested that the legal continental shelf must be limited by the actual geology and geomorphology of a coastal State’s landmass.100 A careful examination of the Court’s positivist reasoning reveals, however, that it would not have intervened against claims extending well beyond the “natural prolongation” so long as one coastal State’s claim did not directly overlap with any other States’ claims. As the Court put it:
It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right . . . without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries.101
By this logic, coastal States could stake their own continental shelf claims and would only have to justify them when intruding on competing claims by opposite or adjacent coastal States. In other words, States without a directly overlapping claim would have no standing to challenge an aggressive jurisdictional intrusion into international waters. Here judicial settlement of boundary disputes also faces hard legal limits as the binding force—the res judicata—of a tribunal’s judgment is restricted to the parties consenting to jurisdiction before it.102
Even had the Court announced a generally binding rule, it may have been overrun by a concert of aggressive coastal States’ claims supported by the Court’s own specially affected States doctrine. Gerry Simpson saw this doctrine as allowing particular States to have unequal influence in international lawmaking.103 Deeming coastal States “specially affected because they were the only States who could claim an interest in the continental shelf, the Court in North Sea Continental Shelf Cases ratified a decisive inequity in international lawmaking since it viewed landlocked States as having “no interest” in the delineation of the continental shelf.104
While formal jurisprudence focused on the positive acts of a few special States, the preparatory work for UNCLOS III continued with the interested participation of coastal, landlocked, developed, and developing countries alike.105 Yet the ICJ’s 1974 Fisheries Jurisdiction (United Kingdom v. Iceland; West Germany v. Iceland) judgments,106 which extended to fisheries a similar reliance on claims by certain specially affected fishing nations to establish the generally applicable law from their existing inter se treaties and practices. Following the lead of the Truman Proclamations in 1948, Iceland asserted exclusive fishing and regulatory rights to “Continental Shelf Fisheries” on the basis of a need to protect its own offshore fishing from increasingly sophisticated distant-water fleets.107 In 1971, Iceland claimed exclusive fishing rights out to fifty miles,108 which would cut out British and German fishermen from grounds they had fished for centuries and considered part of the high seas.109 These competing claims soon led to a forceful escalation (the so-called “Cod Wars”), with Iceland seizing British fishing vessels and Royal Navy gunboats clashing with Icelandic patrols.110 The United Kingdom and West Germany soon asked the ICJ to intervene.111
The Fisheries Jurisdiction judgments began by acknowledging that the preparatory work for UNCLOS III represented the “manifest desire on the part of all States to proceed to the codification of [the law of the sea] on a universal basis,”112 but the Court insisted that this had no bearing on extant positive law.113 The Court ultimately held that Iceland’s unilateral extension of exclusive fisheries jurisdiction was “not opposable” to the United Kingdom or West Germany and that the parties had an obligation to undertake “good faith” negotiations to reach an “equitable” solution.114 These negotiations were to be guided by “preferential rights” for Iceland to regulate offshore fishing as well as the “historic title” of West Germany and the United Kingdom due to their longstanding fishing in the disputed area.115 Here again, the Court in effect established a general approach to dispute settlement by reference to the “kaleidoscopic” claims of particular States as against each other only.116
The positivist logic of these cases elevated the conflict among nations as they were encouraged to assert themselves and challenge each other (sometimes backed by force) to maintain prescriptive claims.117 It also emboldened unilateralist national regulations to address growing concerns about marine pollution, fisheries, and scarce resources.118 These concerns took on an added dimension as smaller, newly independent, and developing countries followed Pardo’s and Malta’s lead in insisting on a fair say for ocean space.119 Without a new agreement, the status quo reliance on individual and inter partes claims, enforceable against the world, had failed to really ensure anybody’s interests in the oceans, which was to the detriment of order for all.120 Already, however, a new law of the sea conference—UNCLOS III—was well underway.