Enmeshed in the waves of the Persian Gulf crisis is a question that will remain even if the Iran-Iraq war ended tomorrow: By what authority is the United States insisting on freedom of passage?
Is it the doctrine of freedom of the seas laid down by the Swedish lawyer Hugo Grotius in 1609? Well, no. That had had its day in 1945 when an American President, Harry Truman, proclaimed the jurisdiction of the United States over the sea-bed resources of the continental shelf. Three years later, Chile, Peru and Ecuador raised the stakes by claiming 200-mile maritime zones and seizing U.S. tuna boats.
Is it the law of the sea fathered by the United Nations (with the enthusiastic participation of this country), a document that fashioned an accommodation between new coastal jurisdictions and traditional high seas freedom? No, because one of the early acts of President Reagan was to turn his back on nine years' work and pull the United States out of the negotiations.
In short, there is a legal limbo. While the United States is busy calling for "freedom of navigation" in the gulf, much of the rest of the world is quietly noting that we appear prepared to call on international law only when it suits our own purposes. And if the United States can interpret sea law as it chooses, so will everyone else.
The Law of the Sea treaty was arguably the most complex single piece of international law ever negotiated. The deliberations began in an era when a large number of coastal states appeared to have an insatiable desire to bring vast areas of the ocean under their control for political as well as economic purposes. It looked as if the lunge toward 200-mile economic zones might easily turn into a quest for 200-mile territorial waters that would destroy forever the old 3-mile limit that had allowed for free passage through narrow straits.
The Law of the Sea treaty was a bargain. On the one hand there was a commitment to roll back existing claims of territorial jurisdiction greater than 12 miles; to write into international law the right to free and unimpeded passage through 100 straits that are narrower than 24 miles; and, while recognizing 200-mile economic zones for coastal states, to prohibit them from restricting the passage of ships or the overflights of planes. The other part of the bargain, demanded by the strategically placed coastal states as well as landlocked nations, was the right of access to the vast mineral deposits that lie on the ocean floor outside the 200-mile economic zones.
It was this latter issue that finally sank the Law of the Sea conference. The Reagan Administration decided that it could not come to terms with the demand of the Third World nations to allocate part of the vast ocean floor to an international body called "the enterprise," which would mine on behalf of the less technologically developed nations. This, despite the fact that the conference was amenable to allowing private mining companies to operate unimpeded on most of the ocean floor, reserving only a portion for "the enterprise."
The conference is now moribund. But to the extent that the provisions of the Law of the Sea codify customary international law, does it not impose an obligation even if unsigned? The truth is, it is difficult to state with any degree of accuracy just which provisions of the treaty are expressions of custom and which are new practice.
The underlying problem is in the distinction between the right to innocent passage, which cannot be suspended, and the needs of modern naval powers that require undersea and flight transit rights. Unless a nation is a signatory to the treaty, there appears to be no basis for claiming the latter rights. The United States is attempting to circumnavigate this problem by falling back on one of the oldest principles of international law--the basic right of international communication. Yet since the United States no longer abides by customary law on economic issues--42 years have passed since it announced jurisdiction over the sea-bed resources of the continental shelf--why should other states recognize its position on free navigation through narrow straits and waterways?
Without the treaty, there is simply no effective forum to resolve such differences. The law of the sea could have been a Magna Charta for the 21st Century, but the Reagan Administration chose otherwise. For the present, two-thirds of our planet is largely lawless. President Reagan will reap what he sows.