Chile, Mar Presencial, and the Law of the Sea

Article excerpt

DURING A SPEECH OPENING CHILE'S 1994 "Month of the Sea" celebration, President Eduardo Frei announced initiatives to enhance Chile's presence on the high seas and to protect marine resources within its national jurisdiction. In so doing, he echoed geopolitical thought of Chilean maritime theorists dating from the 1600s. The initiatives stemmed in part from disputes over free fishing and navigation on the high seas, wherein, Frei argued, certain maritime powers were disregarding weaker coastal states' interests.

Because this is a long-standing international concern in which Chile has played a prominent and influential role, the Chilean approach to important law of the sea issues needs to be well understood. This paper reviews the latest expression of that approach, Mar Presencial, in the light of two recent international maritime agreements-the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which entered into force on 16 November 1994, and the United Nations High Seas Fisheries Agreement, signed on 4 December 1995 but not yet in force.1

The Law of the Sea Convention (LOSC) is one of the most comprehensive and complex instruments of international law in world history. One major focus is on spatial issues. Its seventeen parts, 320 articles, and nine annexes divide the world's oceans into four basic zones: "internal waters," extending landward from a coast's low-water line;2 "territorial seas," extending seaward from the lowwater line for up to twelve nautical miles;3 "exclusive economic zones" (EEZ), extending up to two hundred nautical miles from the low-water line;4 and the "high seas," effectively extending seaward from the outer edge of the EEZ.5 A concept of "archipelagic waters" is also introduced, whereby sovereignty may be recognized over waters within an island group.6

The LOSC effectively ensures traditional high seas freedoms for all maritime nations, while checking excessive maritime claims by coastal states. Its protracted negotiation involved the quid pro quo of granting to coastal states control of resources within two hundred nautical miles oftheir shores in exchange for broad navigational rights for all states beyond twelve nautical miles. The United States Department of Defense embraces the Convention as "revers[ing] a disturbing trend of jurisdictional creep";7 at the same time, it identifies maritime resource conflicts as one of five threats to world order and U.S. interests in the post-Cold War era. 8

Despite the strategic stakes of the major powers in the LOSC debate, which took place during the Cold War era, for the most part the impetus for the negotiations arose from Third World nations. As a result, it reflects the NorthSouth, developed world-underdeveloped world, debate. The nonideological reality, however, is that unregulated growth of exploitation significantly depletes maritime resources for all potential users.

The recent entry into force of the LOSC has coincided with an increase in intensity, if not in frequency, of fishing disputes. Perhaps most visible has been Canada's naval activity to oppose Spanish trawlers on the Grand Banks (about which more below). There have been noteworthy confrontations-some involving gunfire and fatalities-in the Sea of Okhotsk and the East China Sea, the Andaman Sea and the Gulf of Thailand, as well as off the Philippines, Indonesia, Malaysia, Australia, Iceland, Ireland, and Portugal. Other cases are Norway's limitation on fishing off its coasts, and Argentina's moratorium on catching squid within its EEZ, along with its call for a voluntary moratorium below the 44th parallel (south). Notwithstanding the UN Law of the Sea Convention, a lack of regulation, or at least a lack of cooperation between fishing and coastal states, has continued to lead to such incidents and will lead to more in the future. With the world's fishing fleets nearly doubling in size in the last quarter-century and the annual marine catch holding steady around eighty million tons, the United Nations' Food and Agriculture Organization considers almost 70 percent of the oceans' stocks "fully fished" or worse. …