Year XXVIII, 1986, Number 2-3, Page 140
LIGHT AND DARKNESS AFTER MONTEGO BAY
In December 1982 at Montego Bay (Jamaica) the Law of the Sea Convention was signed by the diplomats representing 119 countries. Non-signatory states were given a two-year period of reflection. By the time this period had elapsed 140 governments had agreed to ratify it. But to enforce the Convention diplomats’ signatures are not enough, and at least sixty states need to ratify it in keeping with their own legislation. Since only a very tiny number of states have actually done so, the Convention has not been implemented — nor is it likely to be in the near future. Several major countries — including the United States, Great Britain and West Germany — have not only refused to ratify the text of the Convention, they even refused to sign it in the first place: their decision thus deprives the new international bodies provided for in the new treaty of any political credibility and, even more significantly, of the necessary funding. Many countries, while agreeing to the Convention, do not seem anxious to ratify it and seem intent on continuing the race for the conquest of the seabed without considering themselves bound by the Montego Bay Treaty. This is particularly true of European countries who took alternative measures: instead of waiting for the outcome of the negotiations, Germany, France and Great Britain had already passed unilateral national legislation in 1981. And on August 3rd, 1984 in a climate of absolute secrecy, Belgium, France, West Germany, Italy, Holland, Great Britain, Japan and the United States separately reached agreement on the law of the seabeds (Geneva agreement). Thus, of the 12 EEC countries, two are not even signatories of the Montego Bay Convention and the other ten, though signatories, have not yet ratified it. The EEC commission has signed the text, albeit only on behalf the EEC, and will not be able to ratify the Convention, except after the majority of partners have ratified it with their own national legislation. But that day would seem to be a long way off.
The uncertainty surrounding developments in the short-term does not prevent us from examining the contents of the Convention. Thanks to the continual refinement of techniques, it is possible to make use of resources that were inaccessible until only a few years ago such as the South Pole, with its precious raw materials, outer space which prospectively offers immense resources of every kind and, of course, the sea which since time immemorial has been a source of subsistence thanks to stocks of fish but whose seabeds also hide exceptional deposits of energy, minerals and other precious substances. Technology has given mankind new possibilities of growth and development, creating at the same time an alternative between two options. The first option is the one federalists have already outlined in this review on a number of occasions: the common use of these new resources achievable by replacing international co-operation with supranational co-operation, which in itself contains the seeds for a future world federation. The second option is (very effectively) defined “new nationalism”:[1] states increase their economic sphere of influence to the maximum by extending their territorial waters to the high seas and slice up the cake on the basis of mutual power relationships. These clearly antithetical options differ, however, from the system which existed prior to the Convention, inspired by the doctrine of “freedom of the seas” whereby seas and seabeds could be used by the individuals or states who first managed to exploit them but without their having any claim to territorial rights. This doctrine is fiercely defended by all those countries who in practice hold a technological monopoly over the exploitation of the seabeds, as reaffirmed in the agreement signed in Geneva on August 3rd, 1984. Control of the seas has, however, become too important for it to be left by developing countries to Western multinational companies, so that the Convention has repudiated this old doctrine.
Federalist arguments in favour of a supranational government of the seas’ resources were discussed during the negotiations. In the text of the Convention, indeed, there are two significant points based on the principle that the seabed is “mankind's common heritage”. The first point is the provision for the very first time of a compulsory and cogent international jurisdiction which no longer depends on states prior acceptance of proceedings: the model adopted is the EEC’s legal system, based on the concept of renunciation of juridical sovereignty by states. The second point relates to the establishment of an “International Authority of the seabeds”, with powers in the high seas over 370 kilometres from the coast. This was hailed by federalists as “the first body for supranational planning of economic resources in the history of mankind”.[2]
When, however, we examine the overall content of the Convention, we cannot fail to note that it “nationalizes” the seas on a very vast scale. The Convention, in fact, lays down that an area which stretches 370 kilometres beyond the end of territorial waters shall be entrusted not to the “international authority” but to the coastal country who shall have exclusive control of the seas’ resources in this area. This area may in certain cases be even greater (inlets, gulfs, continental shelves). One example will suffice to illustrate the consequences of implementing the new Convention: however incredible it may seem, sovereignty over a tiny island one square kilometre in size in the middle of an ocean gives the island's government exclusive control of the sea's and seabed’s resources for 430 thousand square kilometres i.e. a territory much bigger tban the whole of West Germany. 35 per cent of the seabeds are thus entrusted to coastal countries and islands and, moreover, they contain more than 80 per cent of fish stocks and 90 per cent of seabed hydrocarbons. To this we need to add that 54 per cent of this “nationalized” sea is entrusted to 10 states, only two of which may be considered developing countries. The remaining 46 per cent is split up between a 140-odd coastal countries. Finally, exploitation of these areas is not possible for all those countries (including some of the world’s poorest countries) which have no outlet on the sea.[3]
Implementing the new Law of the Seas Convention would have very worrying consequences, in particular, for the world's “hot spots”. One of these is the Mediterranean, where unchecked expansion of the areas controlled by coastal states has ended up by eliminating any sea area entrusted to the “International Authority”. In other words, the Mediterranean, rather than being a “free” sea risks being turned into a “closed” sea. The territories under national control all overlap making it necessary to draw up underwater boundaries in the knowledge that any solution favoured by one country is automatically unacceptable to neighbouring countries. The situation which has been created is in many respects very worrying: of the 32 bilateral agreements needed to draw up the political map of the Mediterranean seabed, only four have been concluded, while two others have been at least partially resolved with rulings of the International Court of Justice at The Hague. In other cases, we are up against harsh disputes, often made all the more acute by diffidence and secular hatred.[4] There are no legal criteria which can be relied on, given that every state tends to exploit the physical configuration of the coast to the maximum and hence to adopt the most diverse rules: thus, in the same way as the problem of land boundaries has raised unending conflicts, the partition of the Mediterranean into economic areas under the exclusive control of states will unfortunately lead to tensions which have only in part been foreshadowed by the Sirte Gulf issue.
Attempts at legislation on the seas have thus been vitiated, on the one hand, by the ambiguity of the states (European states, in particular) as regards their real willingness to ratify the treaty and, on the other hand, by the blatant contradictions in the text of the Convention, where pronouncements of great principles alternate with vulgar nationalistic mystifications. In other words, the Convention not only includes very welcome trends, it also includes very unwelcome and disquieting forms of “new nationalism”, affecting all geographical areas and all ideological positions. This “new nationalism” must be identified and fought. The constant process of nationalization of the seas (which began many decades ago) can only be corrected by creating regional federations which make more equal use of resources and redistribution of riches between coastal and non-coastal nations possible. The situation in the Mediterranean can only be made less dramatic if serious progress is made towards European Union and unity in the Arab world, that would make some form of Euro-African integration possible. From being a “closed sea” the Mediterranean can and must become a “common sea”.
Such progress is by no means easy given the current position in the international community. Progress will mean a whole host of political battles, some short-term, some which will last for decades. But all these battles must be fought in the knowledge that the end to the contradiction between the need for international democracy and the persistence of narrow-minded nationalistic attitudes is the only way to guarantee an ordered development to history.
Francesco Mazzaferro
[1] Expression used by Jonathan I. Harney (ed.), The new nationalism and the use of common spaces, Totowa, New Jersey, Allanheld, Osmun, 1982, pp. ix-343.
[2] Guido Montani, “Il MFE per il governo sovrannazionale delle risorse marine”, in Il Federalista, XXV (1983), p. 28-31.
[3] Statistics in Uwe Jenisch, “The signing of the Law of the Sea Convention”, in Aussenpolitik, vol. 34, n. 2, pp. 171-184.
[4] Lecture on defining boundaries in the Mediterranean held at the University of Bologna on May 5th, 1986 by Dr. Bastianelli (an expert on international law working for the ENI company) with the title Delimitazione dei confini marittimi nel Mediterraneo e problemi petroliferi.
