The Law of the Sea Treaty (LOST) involves the question of ownership of the "commons." This is a classic subject in the annals of environmental concerns. Garrett Hardin in 1968 wrote "The Tragedy of the Commons." The argument is simple. When nobody owns the property in question, everyone will abuse it or exploit it to the maximum, ruining it for everyone. It is seen time and time again concerning resources on the commons. Classic examples -- open range cattle farming (too many farmers and everyone loses when the range is exhausted),and oceanic fisheries (until international agreements regulating the fisheries were signed and enforced, one species after another was fished out, nearly to extinction).

The case of fossil fuels on the commons is a bit different. Ocean drilling requires a lot of investment, and few have the capital or technological know-how to succeed. To impose strict sharing among all nations is patently unfair, because only the driller risks anything. Other should not benefit for doing nothing. Also, any regulatory environment to prevent exhaustion of the resource is off-base for fossil fuels, because fossil fuels are inevitably exhausted in the place, wherever mined, by the extractive process. Third, a regulatory environment at the international level threatens national sovereignty unless carefully constrained.

Nevertheless, there is some appeal in the argument that the oceanic commons belong to everyone, not to an individual nation nor to an individual firm able to exploit a resource simply by their effort to do so. In a day when resources of the commons, either renewable or non-renewable, can be exhausted, there is a moral obligation to act in ways responsible to the overall needs and future of mankind. International law is not fixed in the same way as national law. Ius gentium (, common law, and the Law of Nature given by God must permeate deliberations, and constrain users of the commons. The proposed LOST may not be the appropriate mechanism for regulation of the oceanic commons, but something is indeed needed for the long term future of mankind.

2012 John C. Munday
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