A Particular Kind of Dominium: The Grotian Tendency and the Global Commons in a Time of High Arctic Change.

• Author: Rossi, Christopher R.

1. Introduction II. Grotius' Concept of Common Use 1. The Significance 2. The Context A. Spanish-Luso Competition B. The Treaty of Tordesillas; Letters of Marques and Reprisal Divided Sovereignty C. Thalassocracy and Mare Clausum D. A Brash Response E. The Political Context III. A Luminous Legacy, A Troublesome Tendency 1. His Precocious Youth 2. His Dazzling Effect on International Law and Relations 3. His Hidden Agenda A. What Mare Liberum Is About IV. The Context Revisited: Another View of Seventeenth Century Holland 1. The 'Roaring Forties' 2. Dutch Commercial Interests and Technological Advantage 3. Grotius'Corporate Agenda A. An Agency of Empire B. The Taking of the Santa Catarina C. Trouble with Frisians and Mennonites; Common Use and No Competition 4. Self Defense and Mare Liberum 5. Requiem for Mare Liberum V. The Grotian Tendency On Display 1. The Twentieth Century Territorialization of the Global Commons 2. The Twenty-First Century Continuation A. The High Arctic I. Continental Shelf Extension Claims II. The Northern Sea Route and the Northwest Passage III. Governance VI. Conclusion I. INTRODUCTION

   Hugo Grotius (1583-1645) overlooked the North Sea from Holland's shore in the early seventeenth century and observed an "immense, infinite" waterway, (1) so vast it could not be possessed; (2) so unbounded, except by the heavens, (3) it could only admit to uses such as navigation, fishing, and trade. (4) He claimed in Mare Liberum (The Free Sea, 1609), his small pamphlet quickly destined to become a classic, that the seas represented a shared resource, like air, which allowed for a "common use" to benefit mankind. (5) According to Grotius, Providence bestowed on humanity a particular kind of dominium (ownership) over the seas, which, unlike land, granted individuals a freedom of use but enjoined proprietary claims. (6) One could not give away what one never owned, he reasoned; (7) one could not discover what already belonged to someone else, (8) and one could not appropriate what was common to all. (9) According to Grotius, the seas represented a 'res communis', a common good. (10)

   By the time Grotius died, Mare Liberum had cycled through thirteen editions, (11) securing its place among the classics of international law. Curiously, far less secure were its main claims that the seas could not be owned and were to be used in common. These assertions generated intense discussion and criticism during his time and ours: Many claim Grotius' view of freedom of the seas has prevailed, (12) yet "few works of such brevity have caused arguments of such global extent and striking longevity." (13)

   What did Grotius mean when he labeled the seas a res communis, the use of which was reserved for humanity's benefit? Consider the following points: Almost four hundred years after publication, on August 2, 2007, Russian explorer and parliamentarian, Artur Chilingarov, piloting the mini-submarine, Mir-I, planted a rust-proof titanium Russian tri-color flag on the seabed, 14,000 feet below the ice-covered North Pole. Hailed as a "massive scientific achievement" by Russia's Arctic and Antarctic Institute, (14) and as a stunt by others, (15) the well-publicized gesture generated pithy headlines about a coming 'Race to the Pole' and a new 'Cold War in the Arctic'. (16) But the headlines eclipsed the expedition's far more significant mission, which foretells of Russia's greatest Arctic ambition: (17) To take core seabed samples of the Arctic Basin's massive underwater Lomonosov Ridge to prove to the Commission on the Limits of the Continental Shelf (CLCS) that the geological structure of the seabed of the Ridge is exclusively an extension of Russia's continental shelf. (18) According to the United Nations Convention on the Law of the Sea (UNCLOS,19) which Russia ratified, (20) each coastal state may claim a 200 nautical mile continental shelf as measured from its baseline. (21) Each state may file continental shelf extension claims with the CLCS beyond the 200 nautical mile swath granted by UNCLOS, in accordance with the CLCS' test of appurtenance (22) and UNCLOS Article 76, (23) and show scientifically that its continental margin extends beyond 200 nautical miles and is part of the submerged prolongation of its mainland. (24) Russia's 2001 submission lacked sufficient evidence, (25) but was accompanied by the CLCS's recommendation that it fortify and re-file its claim. (26) Russia has already applied for extensions of its submissions in the Barents, Bering, and Okhotsk Seas and recently signaled it will re-file its Lomonosov submission, along with a submission over the Mendeleev Ridge off the South Siberian Sea. (27) If successful, Russia will be allowed legally to extend its control over about 1.2 million square kilometers of underwater terrain that formerly had been considered part of the "deep seabed," which is the seafloor beyond the scope of national jurisdiction--an area meant to be administered for the benefit of all countries in trust, as part of a Grotian-inspired 'Common Heritage of Mankind'. (28)

   Russia's filings portend gloom for the shrinking global commons--as they would enclose almost half of the territory beneath the Arctic Ocean for its own resource exploitation. (29) Moreover, Russia's claims are unexceptional. All circumpolar states are seeking continental shelf extensions into the Arctic cryosphere. (30) Denmark has identified five potential claim areas off the Faroe Islands and its territory, Greenland; (31) Norway presented three separate claims (32) which extend its continental shelf by the equivalent of seven soccer fields for each of its almost 5 million people; (33) Canada's Arctic Ocean extension claim covers three quarters of a million square kilometers; when added to its claims in the Atlantic and Pacific Oceans, Canada's total claim approaches 1.75 million square kilometers, which equals the combined size of its three prairie provinces, Alberta, Saskatchewan, and Manitoba. (34) The United States, although not party to UNCLOS, has amassed scientific evidence to support a continental shelf extension claim, which "could extend more than 600 nautical miles from the north coast of Alaska." (35) One might wonder legitimately what portion of the global commons will be left of the Arctic once circumpolar states complete their Arctic extensions? (36)

   Expansive as these claims are, set against the submerged landforms (geomorphology) of the world's smallest and shallowest ocean, (37) they are surpassed by continental shelf extension claims elsewhere. Australia submitted ten claims for continental shelf extension in its surrounding oceans and seas (38) resulting in its 25 May 2012 proclamation of exclusive rights to oil, gas, mineral and biological resources over 11 million square kilometers of continental shelf; (39) New Zealand, Sri Lanka, the United Kingdom, France, Portugal and South Africa filed claims exceeding the scope of Russia's claims; (40) the total area of seabed under review by the CLCS in 2009, involving (at that time) 51 submissions, covered an area almost as large as the North American continent. (41)

   Some Arctic claims overlap (42) and will doubtless generate diplomatic negotiations. (43) But focusing on extant and emerging bilateral boundary disputes miss a larger point about the improving technological abilities to exploit resources formerly considered too remote, inaccessible, or unworthy of attention. A rapidly receding polar ice cap (44) and new information about the value of potentially accessible resources (45) have altered circumpolar state calculations dramatically vis-a-vis the interests of the rest of the world, exposing a strong state tendency to 'territorialize' resources formerly considered beyond the control of any state's national jurisdiction. In a variation of this theme, for the first time in history, states are actively contemplating commercial trans-arctic voyages across the fabled Northwest Passage, which traverses the Canadian Archipelagic islands and connects the Atlantic and Pacific Oceans, and the Northeast Passage (a portion of which includes the Northern Sea Route (46)), which connects Asia and Europe via waterways atop Russia. Canada and Russia have long claimed sovereign control over these waterways adjacent to their respective continental landmasses. (47) Both countries regard the passages as "internal waters" and have fortified their claims with domestic environmental and administrative legislation. (48) UNCLOS lends some support to their coast state regulatory claims by acknowledging that costal states may exercise special environmental police powers over ice-covered areas. (49) But global warming has made the legal status of the waterways, and the extent to which they constitute "internal waters" or "international straits" much more of a topical concern to other maritime powers. (50)

   In the aggregate, these claims of territorial extension by circumpolar states and numerous other coastal states signify that a dramatic 'territorialization' of geospatial resources is underway. This article argues that it long has been underway. Recognizing this coastal state interest in extending dominium over the seas gives rise to fundamental questions about the global commons, making Grotius' problematic introduction of 'common use' relevant and worthy of reconsideration.

   This article investigates the significance of the global commons as a legal construct. It sets the concept of the global commons against the historical backdrop of the law of the sea, which, famously, has been informed by the Dutchman and his seventeenth century classic, Mare Liberum. This article addresses the question: What is the future of the global commons given its historical treatment in pelagic space? In addressing this question, this article argues that the concept itself is based on a problematic reading of Mare Liberum and the context in which Grotius presented it. Additionally...