Imagine the following scenario. A passenger liner owned by a company in Great Britain, but registered in Malta, carries passengers from 35 different countries on a cruise. It collides 65 miles off the South Carolina coast with a cargo ship owned by a Norwegian company and registered in Panama. It carries cargo from the Port of New York to Cape Town, South Africa. Legal issues arise as to who was responsible for the accident and who will pay for damages and injuries to passengers, cargo, and the ships involved. Where does this case come to trial, and who makes the decisions on the legal issues involved?
Such cases are by no means unusual on the open seas today. In fact, they have been a problem dating as far back as the third millennium BCE. Early in Chinese history, for example, formal arrangements were made for the shipment of goods along the dangerous Yangtze River. Such shipments were divided and placed into several small ships. The owners of those ships that survived the dangerous trip were obligated to split the profits made on the voyage with those who had lost ships along the way (Pavliha and Padovan 2016, 580).
Maritime laws more similar to those in existence today were first promulgated in about the seventh century CE. By that time, maritime trade on the Mediterranean Sea was well developed. As an example, residents of the island of Rhodes, one of the maritime powers of the time, had developed a robust trade with communities along the coast of Italy, France, and Spain. At some point, it became apparent that some type of legal framework was necessary to deal with several types of events occurring on the sea, such as the common practice of jettisoning cargo to lighten a floundering ship. That problem was apparently resolved with the adoption of a set of laws now called the Lex Rhodia. Almost nothing remains from those original laws, although they are mentioned frequently in legal documents from later civilizations, such as those of Rome (Duhaime 2012).
Somewhat surprisingly, the Romans appear to have developed little formal legislation for dealing with events on the oceans. At one point, for example, the Emperor Augustus declined to set legal precedent on an accident at sea, explaining that the Lex Rhodia was the basis for the settlement of all marine issues (Kent 1826–30). As commercial trade developed and interactions among maritime vessels became more common, however, more formal legal systems developed. One of those was an informal position developed by the Romans, mare nostrum, “our seas.” The principle was that Rome ruled everything that took place on water, as it already did on land (mare nostrum). A somewhat similar principle was also developed by the great seagoing nations of Portugal and Spain, nostrum clausum, “the closed sea.” The implication of this dogma was that certain water environments were to be viewed as off limits to all but certain nations. For Spain during the sixteenth and seventeenth centuries, for example, the Pacific Ocean was defined as mare clausum, open to Spanish ships and laws only and off limits to maritime fleets and interests of all other nations. This form of maritime law remained popular in a number of regions up to the early seventeenth century. For example, Norway espoused a well-developed type of mare clausum that closed off much of the northern oceans and seas to foreign ships. Both Venice and Genoa claimed mare clausum over adjacent portions of the Mediterranean Sea, specifically the Adriatic Sea and Ligurian Sea, respectively. Even the Papal States laid exclusive claim to a portion of the Italian coastline from Terracina to Monte Argentino (Theutenberg 1984).
A crucial episode in the history of mare clausum occurred in 1603 when a fleet of three Dutch ships captured a Portuguese ship, Santa Catarina, off the coast of Singapore. The ship was loaded with treasures from China, a bounty too rich for the Dutch ships to ignore. The fact that the Dutch were in a region of Portugal’s mare clausum turned out to have no practical effect for the attackers. The act turned out, however, to have profound effects on many shipping interests throughout Europe. The Portuguese were angry, of course, because of the Dutch incursion on their protected waters. Even many Dutch maritime leaders were concerned because of the dangerous precedent by their ships’ having ignored the long-standing principle of maritime law.
A resolution of sorts was achieved in 1609, when Dutch jurist and philosopher Hugo Gortius published a book entitled Mare Liberum, or Open Seas. Counsel to the Dutch East India Company at the time, Grotius could possibly be thought to be something less than a neutral observer. In any case, he developed a carefully reasoned argument to support the principle that the oceans are open to activities by all nations of the world. In the Singapore case of 1603, Grotius found no problem with the action of the Dutch fleet. It had, he wrote, “the right to sail to the East Indies . . . and to engage in trade with the people there” (Grotius 1609, 7). The basis for this decision, he said, is the “self-evident and immutable” principle that “every nation is free to travel to every other nation, and to trade with it” (Grotius 1609, 7).
Over time, nations developed their own specific law of the sea, usually representing some compromise between mare clausum and mare liberum. This usually took the form of designating some portion of the continental shelf off a nation’s coastline as property belonging to that nation. The oceans beyond that limit were then regarded to be open seas, on which all nations could freely practice transport and trade. As an example, then secretary of State Thomas Jefferson wrote a letter in 1793 to the United States’ four major trading partners (and potential maritime foes)—France, Great Britain, the Netherlands, and Spain—outlining the extent to which America claimed ownership of the seas: the distance a cannon ball could travel, or one sea league (about 3 geographical miles) (Thomas Jefferson to Certain Foreign Ministers in the United States, 8 November 1793; also see chapter 5 in this book for the full letter).
The 3-mile limit proposed by Jefferson, known today as the exclusive economic zone (EEZ), became widely popular among nations around the world. Other nations choose a variation of that law, setting their outer limits of influence at 12 miles. And some nations went further, claiming exclusive property rights to a distance of 200 miles from their coastline.
Debates over EEZs took a dramatic turn in the late 1940s with the development of offshore oil wells in many parts of the world. Nations and private corporations quickly understood the possibility of recovering vast amounts of oil and natural gas as well as seabed minerals. They also understood the potential issues posed by this new field of discovery, especially when those resources lay at or just beyond the EEZ posited by a nation. As early as 1945, President Harry S. Truman acted to protect U.S. interests in such activities. He signed Executive Order 2667 extending the country’s EEZ beyond the 3-nautical-mile limit for exploration and recovery of underwater mineral resources as well as protection of traditional fishing areas (“Proclamation 2667” 1945).
The first instance in which these concerns had a basis in reality was the construction of the first offshore oil-drilling platform “out of sight of land” by the Kerr McGee company in September 1947. Quite rapidly, similar projects of exploration for marine resources were initiated along many coastlines around the world. As anticipated, these new activities generated a whole new set of environmental and economic issues, such as the differences in EEZ designations in nations around the world, increased risks and occurrences of oil spills from offshore platforms, harm to the environment from such spills and oil tanker accidents at sea and along the coasts, and disputes over economic benefit and risk imposed by near-shore recovery activities.
Finally, in 1967, someone spoke up to demand the development of a comprehensive and detailed law of the seas. That someone was Arvid Pardo, delegate from Malta to the United Nations. Pardo noted that the United Nations had been “somewhat slow” in dealing with the problem of EEZs and warned that “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction . . . is the only alternative by which we can hope to avoid the escalating tension that will be inevitable if the present situation is allowed to continue.” (Pardo’s address can be found at Agenda Item 92 1967. The quote is from the afternoon session.)
Pardo’s speech is now generally regarded as the first step in the development of the modern Law of the Sea Convention, an accomplishment for which he is sometimes called the Father of the Law of the Sea Conference. The United Nations had already convened two “Conference on the Law of the Sea” meetings prior to Pardo’s remarks, in 1958 and 1960. But neither dealt with the international issues about which he was concerned. As a direct consequence of his speech, then, the United Nations authorized yet another such conference, the Third United Nations Conference on the Law of the Sea, to devise some form of Pardo’s “effective international regime.” The challenges faced by participants in that meeting are reflected in the fact that that conference went on for nine years, from 1973 to 1982. Finally, in the latter year, participants agreed upon the final draft of a United Nations Convention on the Law of the Sea (UNCLOS).
One hundred forty-three nations signed the original treaty, and it has since been ratified by 168 nations. Members of the United Nations that have neither signed nor ratified the treaty are Andorra, Eritrea, Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, South Sudan, Syria, Tajikistan, Turkey, Turkmenistan, the United States, Uzbekistan, Venezuela, and the Holy See (Law of the Sea 2019).
The U.S. government has traditionally held a somewhat conflicted view about UNCLOS. Its representatives were especially supportive of the treaty negotiations and were involved in modifications of the treaty between 1990 and 1994, and the government eventually recognized the treaty as the legitimate authority on all marine matters. But President Ronald Reagan had strong objections to one particular section of the treaty, a problem he announced in the final stages of negotiation. Reagan felt that some provisions of the treaty overrode parts of existing U.S. law and were, in any case, detrimental to U.S. economic interests. In particular, he argued that the United States would be prevented by the treaty from deciding when, where, and how to proceed with extraction of oil, gas, and underwater minerals in areas within and near the U.S. EEZ. The Senate, thus, declined to consider or ratify the treaty (Malone 1983).
Thirty years after Reagan’s actions on UNCLOS, the debate still rages over ratification by the U.S. Senate. In its most recent attempt to achieve this goal in 2012, a group of 34 Republican senators indicated that they would vote against ratification, making it impossible for the Senate to gain the two-thirds majority if needed for ratification (Johnson 2012). The ongoing concern even as of early 2020 is the treaty would deprive the U.S. government of the right to make important maritime-related issues. The treaty would, thus, make the United States subservient to an international body on important issues of national interest (Bromund, Carafano, and Schaefer 2018).