The sea is a jungle

The narrow gulf between abandoning international law and abandoning ship

Image: Cornelius van Bynkershoek, the Dutch lawyer who—wisely enough—set the maritime boundary of a coastal nation as being the range of its cannon balls.¹

The South Pars gas field is the largest gas field in the world. It lies under the stretch of water known as the Persian Gulf. It overlaps the maritime sea areas that form sovereign territory of Qatar, on the one hand, and Iran, on the other. The gas field is “shared” but, similar to the Dutch/German gas field (which I have litigated in the past), what this means is that there is a percentage apportionment of the offtake from the gas field, and a reconciliation is done once a year to make sure that neither of the co-owners has been allotted too much of that year’s production. Part of the field is located under Qatar’s land territory, and some is under its maritime territory and the rest is under Iran’s maritime territory. The maritime border between Iran and Qatar runs on a dog-leg through the gas field.

So much for what lies three kilometres below the seabed of the Persian Gulf. What lies above the seabed of the Persian Gulf is, of course, water, a commodity that covers 71 per cent of the world’s surface. The idea that anyone with a floating vessel can sail over the Earth’s waters is as fallacious as the idea that anyone with a flying machine can fly over the Earth’s earth. And both of them are as fallacious as the idea that anyone with the ability to traverse land can wander wherever he pleases. In short, land is governed by governments; it is the fundamental idea behind the nation state. If governments were not able to say who can and cannot enter upon the land governed by them, they would have no purpose. It is a government’s prerogative to discriminate at will between those allowed to be upon its territory and those not allowed to be there.

Some countries (mostly those with a coastline, it must be said) establish exclusion zones at certain distances from their land, under what is known as the United Nations Convention on the Law of the Sea. For many years after the development of gunpowder, it was generally recognised, for judicial if not for obvious practical reasons, that a country with a seaboard exercised exclusive jurisdiction over the sea lapping at its shores to the extent of the range of a cannon ball. This was generally set at three nautical miles, and there is where it remained, particularly so long as nobody knew what exactly lay under the seabed or what they could conceivably do with it if they did.

That was pretty much how the tribes and peoples in the lands surrounding the Persian Gulf regarded the sea in that place: what interested them far more than the sea were harbours in which to dock the ships that traversed that sea, and also fresh water, in the form of oases. When Arabs dug into the earth prior to the 20th century, that was what they were after: fresh water.

It was the inception of oil exploration in the 1930s that started to provoke disputes among the nascent Gulf states about where exactly their territorial limits started and ended. Even so, the principal problem with the discovery of oil at that time was how to get it to where it could most usefully be deployed, like Europe or America. It was John-Paul Getty who solved the issue in the 1970s with supertankers. He made a deal with the Saudis to channel their oil onto the enormous great ships that he would have built and whereby—at least for a while—he would have an export monopoly to the rest of the world. If he’d proposed building a pipeline, he’d naturally have had to consider whose territory it went through. If he’d wanted road transport, likewise. But sea transport was an ideal solution (and a very capitalist one at that) because, on the whole, a ship can go anywhere without needing to pay, as long as it plies so-called international waters. The question remains: what happens when you come within a territory’s exclusive zone? The one into which they can shoot cannon balls?

The gasps of outrage at the mere idea of Iran and/or Oman charging for use of the Strait of Hormuz remind one somewhat of the pearl-clutching by Lady Bracknell in The Importance of Being Earnest; the very notion of having to actually pay to pass through an eminently controllable stretch of water has taken the current warring and other parties in that region quite by surprise. As if they’d only just discovered that gravity means that what goes up comes down.

When one thinks about the rationale for Iran asserting control of Hormuz (not per se the money, which will come in mighty useful, but primarily to stop other countries launching bombs at it), it’s hard to see how it even differs from the rule of terrae potestas finitur ubi finitur armorum vis. That was the Latin maxim set down by Cornelius van Bynkershoek in his book De Iure Belli ac Pacis in the early 18th century, meaning that effective control of the sea has to correspond to the range of the coastal state’s weapons. It was the Italian Ferdinand Galiami who worked out that the relevant distance was three N.M.

Now, being as I am somewhat of an anarchist tendency, who sees land borders as anathema, and as constituting not only a result of past warfare but also an excuse for future warfare, I don’t exactly condone the artificial division of the world’s seas and waterways into parcels of ownership. But what I would say is that the principle laid down by Van Bynkershoek differs not one jot from the principle applying on land. If it works for land, and if it works for gas and oil under the sea (and, for that matter, if it works for naming features on the surface of the Moon, like Artemis II naming Carroll), then why should it not also work for the seas and oceans of the world? Whilst one might object that the range of an 18th century cannon ball cannot be compared to the range of an intercontinental ballistic missile in the modern world (which would confer hegemony of no end of states over seaways thousands of miles from where they are located, whereby the prerequisite of actually being a nation with a coastline would be somewhat obviated), the principle that seems to be being established in the newly formed world order is that, whether cannon are directed at the sea or at land, he who can shoot farthest and quickest is master of all he can target. It has worked on land in the Donbas region of Ukraine; so it can work at sea in the Persian Gulf. That is an undeniable consequence of might is right. The vast increase in the range of weaponry since the times of Van Bynkershoek does nothing to negate the logic set down in De Iure. In fact, the destructive potential of today’s missiles only goes to reinforce the Dutchman’s logic. It is in fact the logic of the nuclear deterrent. What prevents the nuclear deterrent from procuring de facto territorial sovereignty for him who threatens is merely the reaction of the people being shot at, plus that little thing called international law. When there is no international law, however, then there is no offshore limit of hegemony.

The sea becomes fair game, then. He who can shoot straightest becomes the ruler of the waves, unchecked by any set of rules, let alone a convention on the law of the sea. The law of the sea? What would that be then? Precisely the same law as that by which land borders are now determined: the law of the jungle.

We know how much gas and oil there is beneath the Persian Gulf; we know how much is in the ships that bob on its surface. The question remains, how much may yet end up in the space between them. That’s a place where no one wants oil and gas to end up. And whether it does lies in the power of him who shoots the cannon.

If you’re prepared to abandon international law, then you must prepare to abandon ship.

1. By Collectie Rijksdienst voor het Cultureel Erfgoed - https://www.collectienederland.nl/page/aggregation/rijkscollectie-rce/C1576, Public Domain, https://commons.wikimedia.org/w/index.php?curid=112711837.