Law of the Sea: a Magna Carta for 21st century

May 27, 1994|By JONATHAN POWER

LONDON — The seas and oceans around us, some two-thirds of our planet, are largely lawless. When, 350 years ago, 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.

These problems of the post-Grotius era preoccupy the Law of the Sea Conference, which after 26 years of negotiation is to come into force November 21. It is a historical milestone in the annals of nation-state competition and commercial exploration. If succeeds in arranging for mankind's fair distribution of its common patrimony of the seas, it will establish precedents that could be applied to a multitude of man's endeavors -- earthbound ones, like the slicing up of oil-rich Antarctica or weather modifications, and also the future frontiers of 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 in danger of foundering. After years of antipathy by Presidents Reagan and Bush, the Clinton administration is moving to join 60 other nations to ratify the treaty. But the same anti-collectivists who captured Reagan-Bush policy are organizing their forces in the U.S. Senate.

The irony is that it was the Republican President Richard Nixon, calling the seas ''the common heritage of mankind,'' who 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 anything imaginable since.

Nixon's policy was anomalous; the American attitude to international law generally has been ambiguous and uncertain. President Harry Truman first challenged Hugo Grotius. In 1945 he proclaimed U.S. jurisdiction 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 among 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 nations 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, military or civilian, on the surface or 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 critics of the treaty is the regime for deep-sea mining. They envision a free-for-all in which the richest and most technologically advanced nations grab the rich mineral nodules at the bottom of the vasty deep. 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. Negotiators worked out a compromise designed to preserve the right of every nation to a share of mankind's common heritage without destroying the economic incentives of rich-world mining companies.

It is a fragile consensus, 26 years in the making. The American government, after a 12-year hiatus, is now behind it, as are the other leading industrial nations. If Senate torpedoes sink this treaty a remarkable opportunity will be lost.

Jonathan Power writes a column on the Third World.

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