Updated 12/18/2015 Hi Louis Brandeis here. As a contributor to the AAB's ADMIRALTY LAW section I was recently asked to explain such concepts as the territorial sea as contrasted with international waters, and other aspects of the oceans as a "commons'. However when I started my research I discovered that the Great Namazu had once addressed this issue. His article, particularly his title is much more attention getting than any staid legal tract I might construct. Who would think that a giant catfish would "get", as you moderns are wont to say, a concept like the law of commons so well. So instead of writing new tract on the subject I'm pleased to introduce lawyer and layman alike to the law of the ocean commons as explained by the Great Namazu: After this re-posting to the blog space we'll find a permanent home for this essay in the admiralty law section. -JB (Editors note: If you didn't catch his introduction a few weeks ago you may be wondering how we came to hire a dead U.S. Supreme Court Justice as a legal analyst.
For an explanation click : (
Introd uction to our new legal correspondent)
Namazu on the "Commons"
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| Namazu, Giant Japanese Catfish and Former Demigod, now Coastal Environmental Analyst and Social Commentator for American Admiralty Books |
LEARN TO SHARE THE COMMONS OR DIE
My Dear Bipeds:
The headline above in red is not meant as a threat from a catfish the size of Japan. It is the warning of a friend of the inevitable results of collective human misconduct. Believe me I know about the power for both good and evil of the collective human intelligence on this planet. I was literally created by a regional human collective intelligence as a dragon demigod, then morphed into the giant catfish I am today by a change in that same collective intelligence.
Not long ago through the initial efforts of some writers, artists, and singers I came to the attention of a larger more diverse human intelligence collective and morphed into a "personification of natural forces". I am of course, merely a personification of the same old natural forces the contemplation of which by a collective biped intelligence gave rise to my first incarnations as a demigod. Now through perception of me as a "personification" the same forces of nature that I represent are now seen absent of malice, despite their innate destructive potential. Obviously as a creature of the collective biped intelligence I have a vested interest in seeing that it is not wiped from the face of the earth. There seems to be only one power capable of that sad destruction and that is a human collective intelligence bent on destruction, such as a "thug State".
Here is my observation in a nut shell. If you bipeds don't learn to effectively and productively manage all the resources that you hold in common, you will soon start killing each other over them big time. If you ever get finished with the idea of killing each other over ideas like economic theories and religions you will still be staring the threats that come from mismanagement of the commons. This mismanagement leads to war over very real resources and wealth. At sea the problem is, and has been, determining exactly what is held in common by "all mankind" and what belongs to adjacent coastal states. You must collectively master this or soon you will again be littering my seafloor living room with the bodies of your sailors and the war probably won't be confined to the sea.
Actually you've made some progress in such a determination. Unfortunately not all biped intelligence collectives are willing to abide by the existing and agreed definitions. The "commons of mankind" which we former demigods simply refer to as the "biped commons" consists of the solar system, where, by international agreement, no territorial claims can be made. The commons also includes the atmosphere which moves at will across international borders carrying weather and pollutants in all directions that the wind blows. The "commons" also includes the electromagnetic spectrum where among other things "cyber space" partially exists. Telecommunications also utilize the electromagnetic spectrum. There seems to be little disagreement that the electromagnetic spectrum is part of the commons and there have been many successful attempts at regulating its use in terms of nation state usage. But there are problems of piracy and lawlessness in this spectrum of the "commons" just as there are at sea. But most of the bad apples are individuals or gangs of law breakers mostly recognized as such by the "community of nations".
The "world ocean" is where the consensus breaks down and the bad actors are all too often as much "thug states" as pirates and outlaws.By agreement, based on practicality, not all of the oceans are in the "commons". Those portions of the World Ocean that are in the international "commons" require some regulation and policing on behalf of mankind and much of the services related to that policing and regulation have been delegated by the international community to the "adjacent coastal states" in a system that might be called "graduated sovereignty". The problems arise when thug states abuse the system to claim parts of the commons or proprietary parts of neighboring state's waters (As is the case with the swimming dragon so often spoken of in this blog space).
Alternatively sometimes powerful political actors in otherwise law abiding states convince national governments to turn a blind eye to the spirit of the law when the letter of international law appears to give these special interests a loop hole to rob the commons (The Rising Sun and Whaling). Finally those parts of the world ocean that are not part of the international commons are generally part of a national commons where again politically powerful private interests, some of international origin, often take national governments for a ride (the inability or unwillingness of the USCG and CBP to enforce the Jones Act on the American OCS). So the first step in understanding what is in the "international commons" and what is in someone's "national commons" is understanding this concept of "graduated sovereignty". So, here in this essay I'll do my best to explain the concept. My explanation is not dependent on the current "Law of the Sea Convention", which everyone , particularly the United States has not signed. As far as I can determine nothing in my explanation is contrary to the provisions of the current convention, but these broad underlying principals that I am about to explain pre-date the convention and are not dependent upon it for force. Even the non signatory nations relative to the present convention have agreed to the following precepts for a long time.
THE TERRITORIAL SEA IS NOT IN THE INTERNATIONAL COMMONS BUT EVEN THERE IMPORTANT SERVITUDES APPLICABLE TO THE SHIPPING OF ALL NATIONS ARE RECOGNIZED .
The "territorial sea" is a term in international law that denotes portions of the ocean under the legal control of the adjacent coastal state. The "territorial sea" is distinguished from the "high seas" and "internal waters" . The "high seas" are those portions of the oceans not under the control of any individual nation state and subject to international law. "Internal waters" are those waters of the adjacent coastal state inland from the headlands or breakwaters. The "territorial sea" is physically part of the ocean. The sovereignty exercised by the adjacent coastal state over the territorial sea is tempered by several recognized servitudes in international law based on the connection between the high seas and the territorial sea and the realities of surface navigation. The most important of these servitudes is the right of innocent passage.
China which in this blog is often referred to as "the dragon" utilizes this servitude to its advantage in the non violent aspects of its attempted appropriation of the China Sea right up to nearly the beach lines of Vietnam, the Philippines, and Japan. Chinese vessels take up station in the international waters of the China Sea and radio transiting merchant vessels their identity and official status. They "welcome" these "innocent transits" to "China's territorial sea" and announce that they will be "escorting them" while they are "visiting". Of course if such shipping which is in fact on the high seas and entitled to unrestricted passage were actually in China's territorial seas bound for elsewhere they would still have the right of innocent passage. The net result is that most often the merchant ships ignore the Chinese ship and continues its intended course and speed since even if the claim had any validity it wouldn't change the ships basic right to proceed exactly as intended. The dragon ship then runs a parallel course for a while at a safe distance off and then usually radios a "farewell and safe voyage" message at some point completing its bogus "escort". The entire purpose of this charade is to build witnesses among the world professional merchant mariner community of "effective administration" by China over this portion of the ocean where they have no real rights of administration what so ever.
The reason that China can not claim the entire ocean out to what they call "the first island chain" is that the breadth of the territorial sea has always been strictly limited. For centuries the limit of the territorial sea was set at three miles from the shore. This was roughly the range of a smooth bore cannon shot. The rule was thought to prevent the taking of war prizes from under the cannon of neutral coastal fortifications. Over the centuries the rule was slowly recognized as impractical. The rule today sanctioned in the latest International Convention on the Law of The Sea is that the territorial sea extends twelve miles out from the shoreline of the adjacent coastal state, unless that distance encroaches on the waters of another state. In those circumstances the exact boundary must be established by bilateral treaty. While the United States has still not signed off on the convention the twelve mile limit to territorial seas is recognized by the Presidential proclamation of December 28, 1988 (Presidential Proclamation No. 5928, Federal Register Mon. Jan.9, 1989 vol. 54 #5 page 777. )
In establishing the 12 mile rule territorial sea limit the international community abandoned the concept of basing the limit on the range of land based coastal defense weapons. Today defense considerations are dealt with through air and surface/subsurface defense zones. These zones may vary in distance from the shore and may change from time to time by unilateral declaration of the adjacent coastal state. However these zones apply only to the right to take defensive action against hostile aircraft or ships of declared belligerence, or upon "due cause" to suspect such belligerent intent. Commercial traffic both merchant marine, and air line are generally unaffected by such zones. There have been some notable errors within such zones by Russia, China, and Korea resulting in massive loss of civilian life on innocent passage. None of these thug states have apologized or made reparations. The United States accidentally shot down an Iranian airliner not in our own domestic air defense zone but in a war zone. The airliner was not "squawking" the commercial identity signal but none the less the U.S. apologized and paid reparations for the incident. The system isn't perfect but it seems to work most of the time, and works best with law abiding states, pretty much the case with any type of biped made law. Before the adoption of the 12 mile territorial sea limit and the addressing of other adjacent coastal state concerns through more limited servitude there were quite a few states attempting to enforce 200 mile territorial seas. A few still do. You bipeds live on a very complex planet and have evolved very complex societies, but far too many of you seem only to be able to follow very simple legal rules. The thug states recognize only one rule "might makes right" and that is the reason for such concern over the commons.
To the catfish mind which tends to go deep (pardon the pun), it seems that if there is any kind of galactic legal regime it is a good thing that manned space flight is presently on such a slow development course. If the earthly bipeds can't manage to govern their planetary commons there will probably be a forceful intervention before you are really allowed out into the cosmic commons.
Within the territorial sea the adjacent coastal state is as sovereign as it is within its' own territory subject to only one international servitude , the right of innocent passage. Vessels of all nations not at war with the adjacent coastal state may enter the territorial sea without special permission to use aids to navigation or to pass through to nearby destinations outside of the jurisdiction of the adjacent coastal state. While within the territorial sea all such vessels on innocent passage must conform to all of the international navigational safety laws and observe the anti pollution statutes of the adjacent coastal state. All submarines must transit on the surface.
Beyond the twelve mile territorial sea adjacent coastal states have other interests and responsibilities but these are limited, and mostly are of the nature of a servitude granted by the international community to the adjacent state. The exercise of such servitudes are contingent upon compliance with enumerated conditions. Lets look at some of these zones beyond the twelve mile territorial sea.
Beyond the territorial sea is a zone that is recognized by many nations known in U.S. law as the Contiguous zone. Within this zone the customs and border control forces of the adjacent coastal state may stop, board and search any vessel that it has probable cause to suspect such vessel of violating or intending to violate the customs laws of the adjacent coastal state. Commonly accepted evidence of such illegal activity may include "hoovering behavior", contact with small craft from shore,and intercepted radio transmissions or other signals indicative of illegal behavior.
Absent "probable cause" customs and border control forces have no jurisdiction over commercial surface traffic in this zone.
With the discovery of offshore oil the adjacent coastal states began to claim conflicting rights to the mineral and other natural resources of the sea floor. The first global biped attempt to deal with the issues related to sea floor rights was the International Convention on the Outer Continental Shelves. The U.S. did sign this convention and gave it the force of domestic law by way of the Outer Continental Shelf Lands Act (43 USC 1331-1356). This international system of law grants to the adjacent coastal state an exclusive right for the mining of subsurface minerals and the harvesting of benthic (bottom dwelling) fisheries. Originally this right extended to the perceived limits of the outer continental shelf or about 200 miles from shore. Within that zone only the adjacent coastal state could establish mineral extractive platforms or semi permanently moored mineral extractive vessels.
These structures and vessels on the surface had to conform to International Light House Authority standards for obstruction marking and lighting and had to be reported to all charting authorities. Nothing in the exclusive OCS rights allowed an adjacent coastal state to interfere with the operation of surface transportation by any nation. In the event that the OCS waters as described in the international convention were in conflict with a local situation of uncertain boundaries, or the straits between nations were narrower than 200 miles the OCS waters were to be determined by bilateral treaty or international arbitration.
Eventually improved subsurface geological research techniques led to expanded claims by some nations based on language in the original OCS convention to claims beyond 200 miles from the adjacent coastal state's shore line. For example Russia claims the entire arctic ocean floor to within about twelve miles of Canada and the U.S., Iceland, Greenland, Norway and others as part of the Russian outer Continental Shelf. No one recognizes this claim yet nor has the science been peer reviewed. Similar situations resulted in the evolution of an international concept that has largely folded in and expanded on the OCS concept.
The post OCS concept of international sea bottom rights is referred to as the Exclusive Economic Zone or EEZ. Exclusive Economic Zones are recognized by most coastal states and are expressly described in the latest International Convention on the Law of Sea, which the United States did not sign. However the U.S. actually coined the term and described the concept in the Outer Continental Shelf Lands Act(43 USC 1331-1356). The concept of the EEZ is that a nation's exclusive mineral rights and benthic fisheries rights might extend past the usual 200 miles if there is scientific evidence that the continental shelf extends beyond the traditional limit.
The international commons is not the only ocean related commons. When the Presidential proclamation extending the U.S. Territorial Sea to twelve miles from shore was published, the wording stated that the extension was for international purposes only . Nothing in the Proclamation was intended to affect or extend geographic application of the then current U.S. domestic law. Consequently state, as opposed to Federal water bottoms , with their associated mineral rights remain as fixed prior to December 28, 1988, the date of the proclamation.So just as the international commons of the "High Seas" has a boundary separating it from the national commons of the Territorial Sea within the territorial sea of many larger nations there are state or provincial waters forming a commons belonging to a more localized population than the entire nation. All of these commons are supposed to be administered in trust for the various Holders in Common. The Holders in Common of these places and waters are the people of the World for the High Seas, the population of the adjacent coastal state for those parts of the Territorial Sea not under the jurisdiction of a smaller political subdivision of the state. Unfortunately in fact all such commons appear to be constantly under threat of misappropriation.
In Louisiana as I write this, the public has finally become aware of a scam by three previous and now long dead governors to skim the public oil revenues from the state commons where oil is found within three miles from shore. Not only did three successive governors in the 1930s skim millions from the revenues derived from the state's commons, their heirs continue to do so. This rip off has been going on for so long that the heirs feel entitled and some judges are reluctant to disturb the arrangement. Theft, continued over time can seem legitimate after a while. And this is true with China which simply covets its neighbor's property and the potential revenues from the international commons. But by making its claim long enough, and loud enough, and visibly enough, coupled with a very thinly gloved mailed fist in a few more years even some of the defending adjacent coastal states may start to believe the groundless claims. Its all the same, what belongs to everyone soon seems to belong to no one and then the strong begin to claim it.
Bipeds, you can't go on living this way. After 5,000 years of the evolution of Western Civilization , western legal views relative to the "Freedoms of the Seas" prevail and are recognized. But thug states like China or delusional states like Argentina, or fanatical states like Iran, or failed states like Somalia find complex regimes like "graduated sovereignty" too complex and simply start to grab what so few really understand as collectively theirs. But by permitting them to play these games so close to acts of war you are doomed to have them step over the line at some point. The Philippines are drawing closer to Japan and a few weeks ago announced their support for the rearming of Japan.
There are still plenty citizens of the Philippines who have first hand memories of the brutal Japanese occupation. Yet the behavior of the dragon is more threatening than the idea of a militarily resurgent Japan. If China persists in their lack of respect and understanding of the international law of the sea eventually they will come to blows with Japan or the Philippines or both and by treaty obligations the United States will become involved as well. War between the United States and China spells the immediate financial ruin of China and an over night massive loss to many personal fortunes in the United States, as well as major hardship and inconvenience. We then have two ruined states armed to the teeth with nuclear weapons facing off in extreme anger. The commons is a difficult concept to get a biped mind around. But if you fail the entire planet could become a glow in the dark parking lot. This is why the article is simply titled "LEARN TO SHARE THE COMMONS OR DIE" that is in fact the only choice.
Namazu
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