High seas, like sunshine, is for all

“Grand Theft of the Global Commons.” With that theme, Supreme Court Senior Associate Justice Antonio T. Carpio spoke at the recent 75th anniversary of the University of San Agustin-College of Law, Iloilo City. He dwelt on the concept of “the global commons,” our planet’s resources that commonsensically belong to all mankind, but which China’s communist rulers shamelessly claim as exclusively theirs.

Following is the first of a four-part serialization of Justice Carpio’s research.

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Rule of law among nations is essential for survival of civilization on this planet. We have seen the development of the rule of law from ancient times to the present, with international law generally progressing to regulate the conduct of wars among nations. Thus, the foundation of international law is the laws of war and peace among nations.

UNCLOS — the Constitution for the oceans and seas.

After WWII when the threat or use of force against the territorial integrity of another State was outlawed under the Charter of the United Nations, international law progressed considerably. One of the greatest achievements in international law was the signing in 1982 of the UN Convention on the Law of the Sea. UNCLOS took effect in 1994 and has regulated the use of the oceans and seas of our planet for the last two decades. UNCLOS is the Constitution for the oceans and seas.

UNCLOS is the greatest codification of international law into one coherent system, complete with compulsory dispute settlement mechanism to enforce its provisions. It took 26 years, starting from the first negotiating conference in 1956, to negotiate UNCLOS – the longest running negotiation in the history of the UN. Some 165 States have ratified UNCLOS, representing an overwhelming majority of members of the UN. All the claimant States in the South China Sea dispute are parties to UNCLOS and are bound by UNCLOS.

UNCLOS not only codified existing customary international law of the sea, it also created novel watershed entitlements like the Exclusive Economic Zone (EEZ) and the Extended Continental Shelf (ECS). UNCLOS institutionalized the global commons — which originated from the ancient idea that the oceans and seas of our planet belonged to all mankind.

Under UNCLOS, there are four maritime zones in the oceans and seas, all measured from coastal land following the concept that the land dominates the sea, which means that entitlement to maritime zones is derived from sovereignty over land. First, we have the 12-NM territorial sea adjacent to coastal land; second, the 200-NM EEZ adjacent to coastal land; third, the additional 150-NM ECS beyond the EEZ; and fourth, the AREA, the maritime space beyond the ECS.

In its territorial sea the adjacent coastal State has full sovereignty just like in its land territory. In its EEZ beyond its territorial sea, the adjacent coastal State has only the sovereign or exclusive right to exploit the living or fishery resources, as well as the non-living or mineral resources; in its EEZ the adjacent coastal State does not have full sovereignty in the same way it has full sovereignty in its territorial sea. In its ECS the adjacent coastal State has the sovereign right to exploit only the non-living or mineral resources; in the ECS the living or fishery resources belong to all mankind. In the AREA, the living and non-living resources also belong to all mankind.

In short, the fishery resources beyond the 200-NM EEZ of a coastal State belong to all States of this planet, whether coastal or landlocked. The waters beyond the 200-NM EEZ are called the “high seas.” No State can claim exclusive right to fish in the high seas. No State can bar other States from fishing in the high seas. The fishery resources in the high seas belong to all mankind, forming part of the global commons, just like the sun, the moon and outer space. No State can appropriate for itself the fishery resources in the high seas, in the same way that no State can appropriate for its exclusive use the energy radiating from the sun.

Thus, UNCLOS expressly provides: “The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas... comprises, inter alia, both for coastal and landlocked States..., (e) freedom of fishing... No State may validly purport to subject any part of the high seas to its sovereignty.” UNCLOS expressly defines the high seas as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” These are the express declarations and specific commands of international law, in particular UNCLOS. Clearly, the fishery resources in the high seas are part of the global commons, belonging to all mankind.

Concept of Global Commons

The concept of the global commons is central to the development of the law of the sea. The Institutes of Justinian of the Roman Emperor Justinian, written in the 6th century, declared that the sea is “common to mankind” and its use is subject only to “the law of nations.” This early concept of the global commons prevailed in Europe from the 6th to the 12th century. Afterwards, States started claiming control and ownership of their adjacent seas.

In 1609, the Dutchman Hugo Grotius wrote his famous Mare Liberum or the Free Sea. Grotius argued that no nation could claim ownership of the oceans and seas because they belonged to all mankind. The naval powers at that time — Spain, Portugal, England — held the opposite view, claiming ownership of the oceans and seas by discovery. The English John Selden advocated this opposite view in his 1635 treatise Mare Clausum or the Closed Sea. Since then until the end of the 18th century, these two contradictory views — one claiming that the oceans and seas belonged to all mankind, and the other claiming that nations could appropriate as their own the oceans and seas — competed for world approval. Grotius’ idea eventually won and became the foundation of the law of the sea. Grotius is known as the father of international law for his writings on the laws of war and peace.

Thus, under international law since the turn of the 19th century until today, the waters beyond a coastal State’s territorial sea could never be subject to sovereignty by the coastal State.

(To be continued)

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