Rights Without Sovereignty

For most of modern history the sea had two parts. A narrow strip along the coast belonged to the coastal state, and everything beyond it belonged to nobody, which in practice meant it belonged to whoever had the ships.

The intellectual argument came early. In 1609 Hugo Grotius published Mare Liberum, the free sea, arguing in defence of the Dutch East India Company that the ocean could not be owned. In 1635 John Selden answered with Mare Clausum, the closed sea, defending English claims over the waters around Britain. Grotius won, mostly because free seas suited the strongest navies. The coastal strip settled by custom at around three nautical miles, roughly the reach of a shore battery.

That arrangement held until valuable things turned up offshore.

On 28 September 1945 Harry Truman proclaimed that the United States had jurisdiction over the resources of the continental shelf off its coasts, with oil in mind. Other states read the proclamation as permission. In 1952 Chile, Ecuador and Peru declared rights out to two hundred nautical miles, mainly for fishing. Iceland extended its fishing limits in stages and fought three cod wars with Britain over them, the last ending in 1976 with Britain accepting the two-hundred-mile line. These were confrontations between coast guard vessels and trawlers rather than wars, but they showed where things were heading.

The United Nations Convention on the Law of the Sea, negotiated from 1973 and signed at Montego Bay in Jamaica on 10 December 1982, turned those claims into a system. It entered into force in 1994.

The system is a set of nested zones measured from the coast. Out to twelve nautical miles is the territorial sea, where the coastal state is sovereign, subject to a right of innocent passage for foreign ships. Out to twenty-four is a contiguous zone for enforcing customs, immigration and health laws. Out to two hundred is the exclusive economic zone. Beyond that lie the high seas.

The economic zone is where the convention did its cleverest and most consequential work, and it did it by splitting sovereignty into pieces.

Inside the zone, the coastal state has sovereign rights over resources: the fish, the oil and gas, the minerals of the seabed, along with jurisdiction over installations, scientific research and the marine environment. What it does not have is sovereignty over the water itself. Other states keep the freedoms of navigation and overflight, and the right to lay cables and pipelines, much as they would on the high seas. Resources went to the coast. Movement stayed free.

That split is what made agreement possible between coastal states that wanted the fish and naval powers that wanted to sail anywhere. The zones together cover more than a third of the ocean, and they moved most of its commercially valuable resources under national control with remarkably little conflict. In that sense it is the largest enclosure in history.

It also created a permanent argument, because the split leaves a question it does not answer: what may a foreign military do inside someone else's zone?

The United States, and most naval powers, say that military surveillance and exercises are part of the freedom of navigation the convention preserves. China, and a minority of other states, say such activities in their zone require consent, or at least a regard for the coastal state that rules out gathering intelligence off its shore.

On 1 April 2001 the argument became physical. An American EP-3 surveillance aircraft, flying about seventy miles southeast of Hainan Island and inside China's zone, collided with a Chinese J-8 fighter that had been intercepting it. The Chinese pilot, Wang Wei, was killed. The damaged American aircraft made an emergency landing on Hainan, and its twenty-four crew were held for eleven days, released after the United States sent a letter expressing regret in carefully chosen words. Each government believed the other had broken the law, and each was reading the same convention.

One more fact completes the picture. The United States has never ratified the convention. It objected to the original rules for mining the deep seabed, and although those were revised in 1994 the Senate has never given its consent. Yet since 1983 the United States has accepted the convention's navigation provisions as customary law, proclaimed its own economic zone, and run operations around the world to challenge claims it considers excessive, citing the convention's rules as it does so.

That tells you which half of the bargain the naval power valued most. It also tells you something about how international law usually works. Rules spread when they give the powerful most of what they want, and the disputes cluster exactly where the bargain left a gap.