Various events in our state-divided world raise questions about adjudication in an anarcho-capitalist world, i.e., a world without states as monopolists of violence and law that adjudicate all disputes that they themselves are involved in. The operational viability of a non-statist world, if it is to be robust toward breakdown, requires a number of characteristics that are neither obviously present in the human being or his societies at most times and under most conditions nor present in our current world. For such a private-law world to survive, there has to be strong adherence to private property rights. This entails a suppression of destructive and base human emotions of many kinds, including greed, anger, jealousy, and envy; the human being is not a Vulcan like Mr. Spock, a creature devoid of deep emotions. It includes suppressing all sorts of ambitions for power, wiles, deceptions, bribes, extortion, blackmail, rumors, assassinations, fear-mongering, invasions, intimidation, false flags and trickery, in short, the kind of stuff that historically has gone on during the lengthy processes by which states gathered territory and strength. Furthermore, and relevant to the current case, a successful private-law society depends upon the presence and survival of impartial arbitrators and protection companies who agree to use their services. The buck has to stop somewhere. Disputes have to be terminated. They cannot be allowed to go on indefinitely or expand into wars. The costs are simply too high for a private company to bear. These problems and challenges do not imply any less adherence to a private-law society goal because we either work toward that pole or else gravitate toward the pole of world government and tyranny. The private-law society provides an ideal model or type whose features may guide us in socially life-fulfilling directions as opposed to life-stifling directions.
Events in our statist world quite often show us barriers to a non-state world, but they also show us steps being made toward a world in which private property is respected. The situation regarding private property is not one-sided, but we can use all the clarification of private property’s rightness, practical utility and directional movement toward it that we can get. Many conflicts among states and non-state actors are over resources and property, but they also become tangled up with long histories of lives lost, lands stolen, religious and ethnic hatreds and rivalries, insults, power ambitions, revenge, and so on, making them more difficult to settle. The core difficulty, which is often property conflict, becomes shrouded.
A few days ago, U.S. ships penetrated within 12 miles of certain island-like patches of land claimed by China and built up by China. The article used the word “within” three separate times, and that penetration was China’s immediate complaint, but China has far more expansive claims on ocean waters and they are at issue. China claims the 200-mile economic zones surrounding these islands. This is a resource claim or grab that looks and is shifty, in my view. There is an established 1982 Convention on the Law of the Sea, and it provides for rights of innocent passage within a state’s territorial waters. It also provides for 200-mile economic zones belonging to states with coastal waters. I don’t think it was expected that a state could extend its baseline or coastline by building new islands in the middle of a sea or ocean, thereby making a 200-mile claim to resources beneath the ocean. The law had a loophole.
China’s complaint about the U.S. destroyers has merit if we take the position that China has sea-steaded those islands. An international tribunal has ruled against China on a different basis, which was ad hoc: rocks vs. natural islands. That will not work in all cases, because technology is going to allow more sea-steading in the future and the property rights in such structures will have to be clarified.
Other countries like Vietnam and Philippines can claim those rocks if they fall within their own extended 200-mile limits under international law, in which case China had no right to improve those reefs and create bases there.
These issues won’t be settled by force, in all likelihood, although a fait accompli is what’s currently going on. There really should not be war over such stakes, but this kind of dispute does illustrate human behavior and the kinds of challenges that are not going to vanish in the absence of states. They will devolve onto other organizations. These matters do require adjudication for a number of reasons. For one thing, the historic sea lanes can’t be thwarted and reduced to bottlenecks controlled by monopolists. Some state might accomplish this by sea-steading in sea lanes. For another, there is oil in disputed sea regions. Third, no state wants its sovereignty at its borders challenged. Fourth, these states recall past wars and antagonisms that may go back a very long time. The UN at present for all its faults is the only forum by which the contending states can attempt to resolve this kind of issue through negotiation or adjudication. The U.S. can’t do this.
China has brought the issue to the forefront by its actions of sea-steading. U.S. destroyers won’t settle this issue. They are a stopgap or a means to get China and others to negotiate this problem. They are at best a means of retaining the right to travel sea lanes and not face possible restrictions from China. That right has been established by practice and international law. These challenges to China are a way of rejecting its 200-mile claims, which aim at oil and gas.
The libertarian focus is on first appropriation of unappropriated resources. So far, that approach has failed because China hasn’t accepted arbitration. China possesses the islands now. Unless someone is willing to go to war, China will keep on possessing them, reinforcing its claim. Maritime users of the sea lanes have their rights outside the 12-mile limits, based on their historic mixing of labor with the waters through traveling through them. Plus the UN has affirmed those rights. There need to be rules created for the disputed seas that lie beyond the 12-mile limits, because those regions are the real centers of this conflict. Property rights need to be made explicit that are currently implicit. Who controls the South China Sea or whatever name is attached to these waters? Who is going to have oil drilling rights? Who has passage and sea lane rights? Who has sea-steading rights? There can be multiple uses with multiple owners. The property rights need to be limited and clarified so that no monopolist can hold everyone else up. The first appropriators are in fact those who have traveled the waters, not necessarily state actors and fighters, but traders, shippers, travelers, explorers and merchants. These have made portions of the seas public property like paths or roads that no one owns but anyone can use.
9:09 am on May 29, 2018
