The Law of the Sea
To the Editor:
Robert A. Goldwin’s objections to the draft treaty on the Law of the Sea are in no way related to a supposed misreading of Locke by the negotiators [“Locke and the Law of the Sea,” June].
The history of properties regarded as commons—land parcels, water, air, space—indicates that unmanaged commons tend to be damaged by overuse and maltreatment, and that, with the growth of population and production, it becomes desirable to manage them. The major mechanism society uses to manage resources is the national state.
The boundaries of national states, which are for the most part recognized under international law, do not include most of the high seas. In order to manage the exploitation of mineral deposits from the high seas, the national states could do one of three things: (1) treat the area as a commons, subject to regulation by treaty or agreement; (2) divide the high seas into national jurisdictions; or (3) create a new institution to manage the exploitation of mineral nodules on the high seas, and agree on a formula for the division of control over this new institution.
With respect to the mining of nodules, it is impractical to treat the seas as a commons, since, under such a system, particular parcels of the sea floor could not be assigned to exclusive parties for purposes of exploitation. Dividing up the seas among national states would have been an anachronism. Hence the creation of a new institution by the UN Conference on the Law of the Sea.
Mr. Goldwin has many valid objections to the proposed treaty negotiated under the aegis of this conference, particularly as it pertains to the sharing of power over the new institution. But it is a misreading of Locke by Mr. Goldwin to think that Locke would have objected to assigning property rights to public or private corporations so that they could mine the nodules in peace and safety. Whether such rights are assigned to private or public corporations was not a matter discussed by Locke. John Locke (1632-1704) did not invent the doctrine of laissez-faire.
To the Editor:
Robert A. Goldwin in a carefully reasoned article argues that the resources at the bottom of the oceans ought to be exploited by private entrepreneurs in the true spirit of an unfettered market economy if an agreement to regulate such activities cannot be reached by an international agency. He bases his conclusion on a philosophical interpretation of the notion that the floors of the oceans are “the common heritage of mankind.” In particular, by “common” he suggests one really means that these resources belong to no one and therefore to everyone. Hence they are there for the taking by the strongest, that is, the wealthiest. I would, however, like to refer him to another branch of philosophy that I think is equally relevant in deciding the optimal approach to this problem, i.e., ethics.
Mr. Goldwin’s approach might have been adequate for the Californian gold rush, but we now live in a much more differentiated world in which some live a life of subsistence while the greatest worry of others might be to decide which brand of blue jeans to buy. Given this skewed distribution of income, I cannot admit the desirability of allowing the vast resources of the ocean to be appropriated by super-corporations to generate more wealth for the wealthy. I do, however, agree that the West should expropriate as much of these resources as we can, not as the property of the few but as a trust for the benefit of mankind. As trustees, I think we ought to distribute the profits to meet the needs of our underclass and the needs of the poverty-stricken everywhere. We should employ this policy with one caveat: we should exclude our adversaries. Since a democratic form of government is, I believe, a necessary though insufficient condtion for fulfilling the highest ideals of humanity, we ought to exclude from the benefit of the trust those states that are determined to undermine the preservation of democracy everywhere. Then we could be proud that we used “the common heritage of mankind” to fulfill the highest ideals of mankind and thereby demonstrate that ours is not a capitalism gone rampant but a system of private property rights that can be used to meet the humanistic needs of the world.
Robert A. Goldwin writes:
It is hard to know how to reply to Monroe Burk. He seems to think he is disagreeing with me but up to his final paragraph he does little but repeat, albeit inadequately, the same analysis I presented.
Now we are both on record that greatly increased use and acquisition make it “impractical to treat the seas as a commons” (Mr. Burk’s words). I, too, wrote that “something must be done to make sensible rules for the use of these waters and the resources in them.”
But I added that the present draft of the Law of the Sea Treaty has things exactly backward. Mr. Burk doesn’t seem aware that those who disagree with us both are the treaty drafters. They are the ones who proclaim that now and hereafter the deep seas “and their resources are the common heritage.”
The task now is to find a way to terminate the common (unregulated and unowned) so that law can prevail and property rights be established.
No one owns the high seas. The sovereign nations are not co-owners, as they assumed as the starting point of the Law of the Sea Conference. They made a false start, with disastrous consequences, which must now be corrected. As I see it, the dispute is not whether new rules are needed. The real disputes are, as I wrote, “Who comes to the conference table to formulate the new rules, and with what standing?”
In his last paragraph, Mr. Burk takes it upon himself to instruct me concerning the dates of Locke’s life. If he had looked at my long chapter in History of Political Philosophy (1963), entitled “John Locke, 1632—1704,” he would have known that such instruction is superfluous. As for Locke’s views on the regulatory powers of governments, there can be no doubt. In his Second Treatise of Government, Locke defined political power as “a right of making laws . . . for the regulating and preserving of property. . . .”
But laissez-faire has nothing to do with this issue. The huge bureaucracy and the crippling regulatory provisions in the present treaty draft will make deep-sea mining unprofitable and will thus delay, indefinitely, the acquisition of valuable minerals. One need not adhere to laissez-faire doctrine to see that if mining is made uneconomic by foolish and needless regulation, there will be no minerals and no benefit to mankind.
As for John Komlos’s letter, I have little to say because I cannot make much sense of it. I said the opposite of what he ascribes to me: that “these resources belong to no one and therefore to everyone.” I pointed out the folly of speaking of anything belonging to everyone in the world, and that what is really meant by a universal common is that nobody owns any of it. Anyone, therefore, can help himself without the permission of another—for centuries this principle has been accepted as the basis of the freedom of the seas.
But I like the intent of Mr. Komlos’s “caveat,” that the benefits of the mining, if there ever should be any, should be denied to the enemies of democracy. All that we lack is his guidance on how to do that.