Who Will Own the Oceans?

John Temple Swing

From Foreign Affairs, April 1976

Article preview: first 500 of 8,334 words total.

Summary:  Not quite a decade ago, Arvid Pardo, Maltese delegate to the United Nations, startled much of the international community with his proposal that the United Nations declare the seabed and ocean floor "underlying the seas beyond the limits of present national jurisdiction" to be "the common heritage of mankind," and not subject to appropriation by any nation for its sole use. In the face of a steady increase of unilateral seaward encroachments by nation-states, Pardo's call-to-arms launched the international community as a late entry in the race for control of the oceans and their vast resources, a race between "the good of one" (the nation-state acting in its own selfish interests) and "the common good." To achieve the latter, he urged the United Nations to create a new kind of international agency to assume jurisdiction, as a trustee for all countries, over the seabed and to supervise exploitation of its resources-with the net financial benefits, which he hoped would be considerable, to be used primarily to promote the development of poor countries.

Not quite a decade ago, Arvid Pardo, Maltese delegate to the United Nations, startled much of the international community with his proposal that the United Nations declare the seabed and ocean floor "underlying the seas beyond the limits of present national jurisdiction" to be "the common heritage of mankind," and not subject to appropriation by any nation for its sole use. In the face of a steady increase of unilateral seaward encroachments by nation-states, Pardo's call-to-arms launched the international community as a late entry in the race for control of the oceans and their vast resources, a race between "the good of one" (the nation-state acting in its own selfish interests) and "the common good." To achieve the latter, he urged the United Nations to create a new kind of international agency to assume jurisdiction, as a trustee for all countries, over the seabed and to supervise exploitation of its resources-with the net financial benefits, which he hoped would be considerable, to be used primarily to promote the development of poor countries.1

Although Pardo's essentially internationalist approach was heralded by many as an idea whose time had come, and provided the initial impetus for the convening, in 1973, of the Third United Nations Conference on the Law of the Sea, it is by no means sure today who the winners in the race will be. Before turning our attention to how it stands, as the United Nations Conference reconvenes in New York, it is important to review how we got where we are today.

II

For most of recorded history there have been only two uses of the oceans that mattered: fishing and navigation. At a time when fishermen and most ships stayed close to the shoreline, the oceans and the supply of living resources beneath them seemed truly inexhaustible. Only with the advent of worldwide exploration in the sixteenth century and the flurry of colonial claims that followed did attention begin to be paid to the need for resolution of two conflicting philosophies of ocean use: national ownership (implicit in Spanish and Portuguese claims to the Gulf of Mexico and the entire Atlantic Ocean) and freedom of movement (important to the great trading companies such as The Dutch East India Company). Given the inability of any nation to enforce claims of ownership to whole oceans and the need for all the colonial powers to have free access to their overseas territories, it is perhaps not surprising that freedom of movement, as propounded in the writings of the Dutch jurist, Hugo Grotius, won out, and became the accepted starting point of modern ocean law.

Certainly what Grotius said at the time made good economic, as well as philosophic, sense: "The sea, since it is as incapable of being seized as the air, cannot have been attached to the possessions of any particular nation."2 In a word, there was plenty of ocean (and fish) for all. Interestingly enough, however, Grotius's philosophy of "freedom of the seas" also involved the concept ...

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