Legal sea change - Convention on the Law of the Sea - Column

Christian Century, March 15, 1995 by William P. George

SEA CHANGE" is one of those buzzphrases used to describe a radical transformation. In its "archaic" dictionary meaning, a sea change is simply "a change brought about by the sea." This definition reminds us that the real change occurs not only on the surface but also in the unseen depths. In other words, stories of genuine transformation will not always appear on the evening news.

Almost without notice the Convention on the Law of the Sea (LOS)--opened for signature in 1982-was ratified in 1993 by the requisite 60 nations and went into effect on November 16, 1994. The U.S. is not yet a party to this treaty that it once did much to promote. The Senate will debate the issue this year. The result of the most extensive negotiation process in history and one of the most significant developments in international law, the LOS points to a global transformation at once political, economic and legal. For those convinced, as I am, that religious questions are to be found in the crevices of politics, economics and law, the LOS may be construed as a religious event as well.

Sea law is nearly as old as international law itself, dating back to the Byzantine Rhodian Codes in the seventh or eighth centuries. Given early trade between East and West, R. P. Anand has argued, it may also be anchored in ancient South Asian culture. International law of the oceans matured significantly, however, in the 17th century. In part on theological grounds, Hugo Grotius and others established the "freedom of the high seas" doctrine--a sort of "fish and let fish, trade and let trade" rule for the oceans beyond a very narrow strip of water under recognized national jurisdiction.

In the past 50 years, however, political and technological developments have produced, in the language of Thomas Kuhn, "anomalies" that established sea law could not handle. These have included massive pollution of the oceans, the prospect of placing nuclear weapons on the ocean floor, and advances in fishing technology that have threatened stocks of fish and fueled international disputes over fishing rights. The depletion of fish stocks dashed the assumption that ocean resources are inexhaustible--an assumption, consistent with a Lockean view of property, upon which the freedom-of-the-seas doctrine was implicitly based.

The most significant development, however, was the discovery of polymetallic nodules on the deep seabed--a sector of the earth which previously neither human beings nor human law had reached. In the 1960s scientists and entrepreneurs projected that these potato-sized lumps of ore (zinc, manganese and copper, among others) represented vast untapped wealth. But their presence also raised profound questions: Who should have access to the deep seabed? Who should benefit from its hidden wealth? Whose oceans are these, anyway? Such questions were made more urgent by unilateral claims of jurisdiction over coastal waters extending far beyond limits set by established norms, and by the eagerness of private and state-sponsored mining companies to stake their claims to the seabed's mineral wealth.

A key moment in the history of the LOS came in 1967 when Malta's ambassador, Arvid Pardo, delivered to the United Nations General Assembly a speech about the need for a new sea law. Pardo reminded the assembled nations that "the dark oceans were the womb of life: from the protecting oceans, life emerged. We still bear in our bodies--in our blood, in the salty bitterness of our tears--the marks of this remote past. Retracing the earth, man is now returning to the ocean depths. His penetration of the deep could mark the beginning of the end of man, and indeed for life as we know it on this earth: it could also be a unique opportunity to lay solid foundations for a peaceful and increasingly prosperous future for all peoples."

If the new oceans regime that Pardo envisioned was to be a "sea change" for human consciousness and law, it would have to be archaic in the most radical sense: it would have to be founded not only on anthropocentric principles, but on much "older" biocentric and geocentric principles as well.

Pardo suggested that the deep seabed beyond existing national jurisdiction be designated the "common heritage of humankind." Common heritage was regarded by international lawyers as a novel concept. The only real precedents for the idea were fuzzy references in recent outer-space law. Its meaning for prospective ocean law was unclear. Still, the concept was accepted in 1970 as a negotiating principle that ruled out appropriation of the deep seabed by individual states and required that it be used for peaceful purposes only. The common-heritage principle also meant that "the exploration of the [deep seabed] and the exploitation of its resources shall be carried on for the benefit of mankind as a whole."

The principle further required that exploration and exploitation ought to take into special consideration "the interests and needs of the developing countries." Finally, the principle bore an implicit but widely accepted understanding of commitment to future generations. Philip Allott, a member of the United Kingdom delegation during the negotiations, has argued that, despite the usual jostling of state interests, elements of collective human consciousness that regards a "whole" as greater than the sum of national interests inevitably seeped into the 1982 treaty. Allott surely had Pardo's contributions in mind.