Powerful individuals and nations rarely have much need of philosophy; it is not usual for ignorance of philosophy to cost them much, if anything. But a rare moment in history is now upon us, a moment when access to resources worth billions of dollars could well depend on the right interpretation of an old philosophic formulation—that the oceans are “the common heritage of mankind.” All the nations of the world, 160 of them, have assented to this principle as the foundation of the United Nations Conference on the Law of the Sea, which has been going on at least since 1973. The draft of a treaty near completion has been described as the single most extensive and complicated international agreement ever devised: among other things, it would establish an elaborate, autonomous governmental structure, the International Sea-Bed Authority—complete with an assembly, a council, several commissions, a secretariat, a “disputes chamber,” and its own mining operation—with sweeping jurisdiction over “the Area” (the deep seas). And this immense international organization would rest on two succinct sentences in the treaty: “the Area and its resources are the common heritage of mankind,” and “All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.”
In all the deliberations of hundreds of nations, in thousands of hours of negotiation, hammering out compromise after compromise involving billions of dollars of future business, little if any attention was given to the question of what it means to say that the oceans are “the common heritage of mankind.”
This is not at all a new question in philosophy. It was raised and well answered three hundred years ago, and so one would assume that there would be familiarity with it on the part of at least some of those who negotiated on behalf of the commercial nations and the corporations involved. Yet the spokesmen of the West went into the law-of-the-sea negotiations with an idea about “the common heritage of mankind” contrary to the truth and contrary to their obvious self-interest. And this misinterpretation has been advanced, year after year, by three successive United States Presidents, by a parade of diplomatic spokesmen, and by numerous supposedly sensible business leaders, not only of the United States but of just about all the modern industrial nations. They marched right to the brink and were pulled back only at the last moment, just as the tenth session of the Law of the Sea Conference was to begin at the United Nations in New York.
On March 2, 1981, the State Department announced that Secretary of State Alexander M. Haig had “instructed our representative to the UN Law of the Sea Conference to seek to insure that the negotiations do not end at the present session of the conference, pending policy review by the United States government,” and on April 14, a U.S. delegate said that the United States would prefer to delay final resolution on the international sea-law treaty at least until the fall and probably until next year.
When the Reagan administration called this halt and insisted on a review, we were inches from agreeing to some or all of the following: that mining companies could invest billions of dollars to scoop up the nodules of manganese, copper, nickel, and cobalt that lie at the bottom of the sea only as licensed by the new International Sea-Bed Authority; that they would have to pay the Authority for the privilege; that they would have to put the Authority’s own operating company (called the Enterprise) into business with capital and technology; that the United States and other developed nations would have a minimal voice within the Authority; and that all disputes, regulations, production levels (and hence, prices and profits) would be set by one or another organ of the Authority.
After so many years of pledging “to regard these resources as the common heritage of mankind” (President Nixon, 1970) and as interpreting “the common heritage” to mean “that the resources don’t belong to any nation, but to the world community as a whole” (Ambassador Elliot Richardson, 1981), it will not do for the United States and our friends simply to say that we want a better deal for our efforts to scoop up the minerals from the depths. The only honorable route for the Reagan administration is to explain what the error has been—an error that all the nations have shared in—and to begin the necessary task of negotiating new laws of the sea from a sounder interpretation of “the common heritage of mankind.”
Hugo Grotius is generally acknowledged to have formulated first, in 1609, the argument that the oceans beyond territorial limits belong to mankind in common, and the phrase that came into use was “the universal common.” The meaning was that no nation could claim control of the seas as they did then and do now over territorial waters, and that therefore all have the right to traverse open seas for commerce and for fishing without being hindered or having to obtain anyone’s permission.
But thoughtful writers saw that there is something not quite rigorous about the notion of a universal common, about something belonging to all mankind. Toward the end of the 17th century, John Locke, in his Two Treatises of Government, pointed out that when we say something belongs to everyone we really mean it does not belong to anyone. The use of the word “common” is what led to the confusion, and Locke sought to clarify matters by making an important distinction. Villages in England—and in many other countries, too—had what were called commons. In such a common, no villager could claim a right to enclose or appropriate any part without the consent of his fellow villagers. But although “the universal common” was meant to be an analogy to the familiar village common, a village common differs from a universal common—a common of all mankind—in two decisive ways. The village common is created by the law of the land—by positive, legislated, promulgated, enforceable law—and a universal common is not because international law is not really law but only agreed-upon practice and custom.
Second, though the village common is common to the inhabitants of that village, it is not common to others; the village common is property, the joint property of the village, to the exclusion of all others. The notion of owning requires exclusion. Something is yours only if others cannot use it or consume it without your consent.
Locke, the great teacher of the theory of property, put it this way: “. . . what fish anyone catches in the ocean, that great and still remaining common of mankind . . . is made his property who takes that pains about it.” If we substitute the word “nodule” for “fish,” cannot Locke’s assertion be made even now, that the ocean is still a common of mankind (that is, unowned), and that therefore what nodules anyone scoops up are the property of those who take the pains—billions in investment and risk—to get them to the surface?
The answer is no, not quite. In an economic situation, says Locke, where there is a great expanse of land or water that is unowned, containing a great abundance of natural materials—apples or fish or nodules—property in these natural things is accomplished simply by the effort or labor expended in acquiring them. Even in a universal common, each human being owns himself and his own labor; therefore if he “mixes his labor,” which is exclusively his, with the natural materials, which are unowned, the mixture becomes his property. But Locke goes on to explain that this is true only when there is such an abundance of natural materials that whatever is appropriated leaves enough and as good for others.
In short, the argument about fish in the unowned waters being free for the taking and the property of whoever catches them, satisfies us as a just and practical working rule so long as there is a great abundance of fish, but comes into question as soon as it appears that the supply of fish is limited.
The same is true, in Locke’s own argument, of all other resources. For example, it would be foolish to complain, in a spacious park on a clear and sparkling day, that someone in the crowd is exercising too strenuously and breathing too deeply, and thus taking more than his fair share of oxygen. The reason is, in Locke’s terms, that enough and as good is left for others. But if the same complaint were made in a disabled submarine lying at the bottom of the sea with a limited supply of oxygen and the rescue time uncertain, our judgment would be very different. No one would say that anyone may inhale as much as he pleases of the “common” oxygen; and the reason is simply that what is left may not be enough for the others.
With these considerations in mind, it is not hard to see why nations felt an urgency about setting new rules for the uses of the oceans. From 1960-1974 the world harvest of fish grew more than fourfold; in the same twenty-five-year period merchant-ship tonnage also increased fourfold. And then everyone acknowledged that a wholly new era was introduced first with the discovery of oil under the continental shelf off the coast of the United States, and, more recently, of the nodules lying on the floor of the oceans at very great depths.
These changes in the intensity of use of the oceans and the extraction of their non-fish resources make it difficult, perhaps impossible, for the oceans to continue to be regarded as a universal common, unowned and unregulated. Mining the nodules is different from fishing, as Elliot Richardson pointed out in a speech to the American Mining Conference last year, because “deep sea-bed nodules can’t swim, and sea-bed miners aren’t fishermen. Miners must have an exclusive legal right to a suitable ore body before they undertake the large, long-term investments necessary to recover and process the ore.”
In these new circumstances, the dispute is not whether new rules are needed. The real disputes are—or should be—what rules, made by whom, supervised by whom, and for whose benefit? Thinking straight about the meaning of “the common heritage of mankind” gives guidance on the crucial questions: Who comes to the conference table to formulate the new rules, and with what standing?
Let us go back to the beginning. When the assertion is made that the deep seas are the common heritage of mankind, it does not mean that every human being is a part owner of the international waters; much less can it mean that every nation considered sovereign is somehow a part owner. What it means is that the international waters are unowned. Thus when something must be done to make sensible rules for the use of these waters and the resources in them, nations come to the conference table in the status of non-owners. No-ownership is the problem in this case; no one has authority to govern the deep seas, and yet certain kinds of activities on them or in them would be beneficial, activities that are usually conducted under conditions of ownership or sovereignty. The task of the Law of the Sea Conference is to figure out some way to end the inconveniences inherent in a universal common, a situation without governance or property. Instead of proclaiming that “the Area and its resources are the common heritage of mankind,” the conferees should face the fact that their task is to terminate the common for the sake of law and property.
The conference has been conducted on a completely opposite basis. Nations have come to the conference table as if they were stockholders, each with an equal share of stock and the equal voting right that goes with it. They took this formulation, “the common heritage of mankind,” to mean joint ownership; added the twist that the shares belonged to sovereign nations, not individuals; and went further and decided that each nation’s share was equal regardless of population, location, or involvement in the production or consumption of the minerals.
By thus assuming a meaning of the founding principle which is the exact opposite of its true meaning, they foreordained the result of the conference before it even began. They asserted that the unowned seas were indeed owned, by them, one share per sovereign nation, whether they had a sea coast or not, whether they had a population big enough to fill a football stadium or not. And—most amazing of all—they beguiled great commercial powers into believing them. They found the Achilles’ heel of the great commercial powers—dire ignorance of the philosophical foundations of private property. And so the swindle was launched on the seas—and named, with exquisite Orwellian irony, the Enterprise.
What can be done? The remedy is easier now that President Reagan and Secretary Haig have taken the first and most difficult step of stopping the headlong rush to disaster. Let the review begin and let the United States formulate a position based on an honorable adherence to principle and sound interpretation.
We can start by announcing that we accept the principle that the deep seas are “that great and still remaining common of mankind,” as our teacher John Locke taught three centuries ago. Next, let us point out that the meaning of this principle, clear beyond dispute, is that until some agreement changes the status of the deep seas, no nation owns them or can prohibit taking anything from them. Being unowned, in the absence of new agreements, the nodules are free for the taking, just as loose fish are in international waters, and no nation or international body has any right to interfere. Let us further point out that the world is in need of natural resources, including those metals now lying useless (because unappropriated) at the bottom of the sea, and that so long as we delay the mining of them we deprive all mankind of their benefit.
There is thus an urgent task to be worked out at the conference table. Let nations properly concerned with these matters come together, but let it be understood that no nation can come to the table in the guise of a shareholder, or with any kind of claim to owning what lies in these seas, or to a right to hinder appropriation of the nodules, because they are “the common heritage of mankind.” No nation has a right to any particular share; no nation has a predetermined voice or vote in what is to be done; no one has any authority until and unless there is an agreement about what is to be done.
In short, the main corrective that results from a clearer understanding of what “the common heritage of mankind” means is that the status of the conferees is altered. The Law of the Sea Conference is not a meeting of equal shareholders, each with one vote. It is a meeting of nations coming together to decide who should have what to say about the rules that would govern the use of territory that is now unowned and therefore unregulated, but which needs to be regulated.
Once the United States states clearly that we do not start from the principle that the permission of others is needed to remove fish or nodules from unowned seas, we should reopen all of the understandings tentatively reached regarding these deep sea-bed resources when we were under the misapprehension that we were participating in a shareholders’ meeting. We should take a stance appropriate to a free commercial society and ask why the nodules should not be mined by private entrepreneurs for profit.
Until now, the majority of the spurious “stockholders” have argued that if some of the nodules are mined by private firms, that must be done in tandem (parallel) with mining by the Enterprise “for the good of the world community.” The underlying theme was first enunciated by Arvid Pardo, the Maltese delegate to the United Nations in 1967. Ambassador Pardo was the first in the United Nations to use the phrase “the common heritage of mankind” to describe the deep seas, and he is the one who described the task as a race between “the good of one” (meaning the nation-state acting in its own selfish interest) and “the common good” (meaning the United Nations and other international organizations).
But why should we, the United States and other exemplars of the democratic-capitalist system, agree to such a distinction? It should be made as clear to the rest of the world as it is (or should be) to us that what justifies encouragement to private enterprises is that all of society benefits.
Further, we should insist on reviewing the protectionist regulations proposed by the Authority to restrict competition with the manganese and other metals now mined in some Third World countries. The draft treaty proposes that supplies and prices should be regulated by an international body in order to preserve a “just” price and an orderly market. This translates to international governmental control over world commerce, founded on the conviction that government officials can manage a more rational system of production and distribution than can a free market. The least of the harmful effects would be higher prices throughout the world for manganese, copper, nickel, and cobalt. More important, however, would be the inordinate control over important activities placed in the hands of officials who have been self-selected and who are accountable primarily to themselves and other international bodies and officials, but not to nations and peoples.
There is one more very important point that ought to be reviewed by the United States and its friends before they go forward toward any treaty regarding rules governing the use of the seas. The elaborate system now incorporated in the draft treaty would provide income to the Authority through its operating arm, the Enterprise. The private mining companies would be required to set up the Enterprise in business, provide it with capital, technology, and a share of the mining business.
The whole arrangement is so complicated that many experts acknowledge that they do not understand it themselves. But it is clear, nonetheless, that this new and autonomous arm of the United Nations, dominated by Third World nations, would have an assured income of quite considerable size to be used “for the benefit of the world community.” The officials of international organizations, the international civil servants who serve as staff and experts for organizations such as this proposed International Sea-Bed Authority, have been searching for years for some means of obtaining funding without having to rely on the contributions of member nations, especially the members who make big contributions, and most especially the member who makes the biggest contribution by far—the United States. If they could be free of reliance on what the U.S. puts in, and then be free of the strings that naturally result, the UN and other international organizations would have the independence for which they yearn. The report of the Brandt Commission contains a proposal for international taxation, assured revenue provided by mathematical formula, some way to reduce the influence of rich members who control the purse strings. An income-producing business operation, tax-exempt and untouched by competition, would be even better.
With other people’s capital and technology, the international civil servants are put into business, and with the gain they will become independent. And part of the rules they have developed and to which we were so close to agreeing, is control over the mining activities of the companies that have the technology. This would be a minor boon to some poor countries, but a major boon to those who staff the international organizations. They are officials quite decisively separated from their native countries (in fact, that is an explicit provision for officials of the Authority and the Enterprise) and what we have here, starting in the deepest parts of the ocean, but with sweeping authority over almost all activities on the seas, is a large, complicated, highly organized, unelected, powerful government, with abundant funding that cannot be controlled or reduced or cut off. Americans ought not to cooperate in the establishment of any such “Enterprise.”
These, then, are the principles with which the United States should return to the Law of the Sea Conference. No doubt such a stance on our part will mean that there will be many more years of negotiating before agreement can be reached, if at all. Ambassador Richardson, when addressing the American Mining Congress, acknowledged that being right does not always mean that others will go along: “Our view, as you know, is that deep sea-bed resources may be recovered lawfully by any state or its nationals as an exercise of a traditional high-seas freedom. We see nodules as analogous to the living resources of the high seas—the fish—that are found beyond the two-hundred-mile fishery zone. This is not merely a defensible position but one that rests on a solid foundation of established international law. There are, however, difficulties with it. One is that it is totally rejected by most governments, including those of all the developing countries.”
But we should not abandon a position that is philosophically sound and rests on a solid foundation of established international law just because others disagree. If it is right and in our interest, we must persevere though we may not succeed. But if we do succeed, it is probable that it will take years even so to persuade so many others.
For that reason, a short deadline should be placed on commencing the mining of the nodules while negotiations proceed. Demands will be made that the new system must benefit the world community and not the corporations or the rich countries, but in the meantime the nodules remain at the bottom of the sea benefiting no one. In the interest of the world community, which suffers from a shortage of these metals, no more delay should be tolerated. Let the nations settle on temporary arrangements to make mining possible in accord with the principles set out above, and let it commence without delay as the conference continues deliberations.,
If that cannot be done, then let the companies begin, with guarantees of protection from the United States and other nations willing to join in, until such time as the conference can settle on rules acceptable to all.
And when the nodules are recovered, processed, and marketed, and when the profits are reinvested and distributed to stimulate further development, as profits always must be, perhaps the corporations will consider investing a small portion of the surplus in sending their executives back to school to learn a little of the philosophical theory of the origins of private property and why they should not be hesitant in their assertions that profit serves the common good. The most profitable return of all would be for the spokesmen of the free commercial societies to learn how to explain the connection of economic liberty and political liberty to those who have neither and long for both.