Philadelphia Reflections

Law of the Sea

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Oceans cover two-thirds of the Earth's surface. Since boundaries are so vital as national resources and are instant triggers for suspicion, a wise nation would never have brought them up. Since global warming is melting the ice caps at an accelerating rate, probably even more of the Earth will be covered by the ocean a century from now. In the days when a cannon shot could travel three miles, it became generally agreed that a nation would hold sovereignty for three miles out to sea. A decade or so ago, that was extended to 200 miles by some international body, but few people remember that. Three miles from the coast, that's it. But the underlying reality, then and now, has always been that if you can't defend a piece of land, you may not keep it very long.

Although satellites probably make it possible to survey boundaries on the ocean floor with some accuracy, land/surface markings are more at the mercy of tides. Even though it's possible to survey ownership rights of some sort on the ocean floor, the personalities of sea captains are probably going to set the practical boundaries of ocean kingdoms for quite some time to come. If a land nation reaches for power that is not to the taste of the Captain, he just goes somewhere else to land. Enormously expensive oil drilling platforms are sitting ducks, sort of held for ransom. They can seek the advice of maritime lawyers, but it's likely the most meaningful appeal will long continue to be a call to the naval power which dominates the region. It's nevertheless useful to watch diplomatic minds at work, just to be aware of what they are up to. Because what they want to do is to change the rules of the game.

In essence, the Law of the Sea advocates begin with the premise that since no one owns the ocean, everybody owns it. It's not entirely clear why one assertion follows the other, but that's the basis for the claim. Since they think they own it, they think they can pass laws controlling it, can share in any profits from it, and ultimately can sell it to the highest bidder. Since all of this is highly debatable, many wars have been fought for less. The same ideas once dominated the disposition of our own western wilderness. Essentially, President Lincoln wanted to pay for the Civil War by selling land, as well as creating land grant colleges, transcontinental railroads, and other assorted boodle. So he sold off or gave away, quite a lot of it. Every time you sell land to someone, he develops a reason to defend your original right to say you owned it. But governments, including Lincoln, change the rules for their own benefit. Lincoln sold land, but it still remained part of America. If he had sold a part of America to China, it would be called alienation. You don't hear about very much of that happening. Alienation generally means war. And the suggestion that something of great value should be nationalized or internationalized generally means that somebody doesn't own it, but wants to have a piece of it, free.

The history of the Treaty of Westphalia, the United States Constitution, the European Union -- and for that matter, the French, Russian and Chinese Revolutions -- warn that it is very hard to develop a fair system of governance for uninhabited space. The present proposal under the Law of the Sea offers each cooperating nation one vote. That could be modified by adjusting the votes by population size, as the constitution did in 1787, or it could be changed to bicameral as John Dickinson insisted at the Constitutional Convention, Representatives are chosen by population, Senators chosen by states, and both must agree. Unfortunately, even that can be tinkered with. In the contested tie for President in 1800, Madison himself devised the strategy of changing Virginia's internal vote from "winner take all" to "each vote counted separately", which broke the tie because John Jay refused to do the same thing for New York and thus lost the election for Aaron Burr. The surviving moral of this story is that it doesn't pay to be fair about anything in politics. Everybody seems to avoid the plain reality that important decisions between nations are made by the nation with the strongest military force. That's crude and unfair, maybe, but unlikely to change much. Which leads to another truism: it's going to be a long time before we can expect strong nations to submit to supra-national control systems. That's why the uniting of thirteen independent colonies in 1787 was so unique, so difficult to achieve, and such a lasting credit to those who made it happen.

Originally published: Wednesday, June 13, 2012; most-recently modified: Monday, July 22, 2019