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From World War to World Law: Elisabeth Mann Borgese and the Law of the Sea.

Introduction

The life and work of Elisabeth Mann Borgese reveal an essential connection between the world federalist movement that thrived immediately after World War II and the global environmentalist movement that began to gather force two decades later. Between 1945 and 1951, Elisabeth Mann Borgese (E. M. B.) played a key role in the Committee to Draft a World Constitution at the University of Chicago. In 1967, she took up the cause of ocean conservation, and her contribution to the creation of the Third United Nations Convention on the Law of the Sea marked a significant advance for both transnational environmentalism and the principles articulated by the world federalist movement.

In August of 1945, Chancellor Robert Maynard Hutchins convened the Committee to Draft a World Constitution at the University of Chicago to address the new dangers posed by nuclear war. As the only woman to be part of this project at its inception, E.M.B. began as an assistant to the Committee but rose to be the editor of, Common Cause, the quarterly journal published by the University of Chicago as a forum for the Committee and its research. Although the world federalist movement was greatly weakened by the Cold War polarization of the 1950s, she would not abandon its goal of building a framework for intelligent cooperation and democratic accountability on a global scale. In the mid-1960s, she resumed her work with Hutchins at the Center for the Study of Democratic Institutions in Santa Barbara, where she focused on advancing the cause of ocean conservation. During this period, she also contributed to the research of the pioneering environmentalist think tank, the Club of Rome. (1)

In 1970, E. M. B. proposed and organized the first Pacem in Maribus (Peace in the Oceans) Conference in Malta. This conference led to the creation of the International Ocean Institute, an NGO dedicated to ocean conservation that she cofounded, along with the Maltese diplomat Arvid Pardo, in 1972. In the realm of international law, the Pacem in Maribus Conference became a seminal forum for the international process of deliberation that would produce the Third United Nations Convention on the Law of the Sea. After a little more than a decade, this process culminated in the drafting of the unprecedented Law of the Sea treaty of 1982. (2) Her chief contribution to this treaty was to defend the principle, first developed with her colleagues at the University of Chicago in the late 1940s, that a global commons, such as the seabed under international waters, must be recognized and protected as "the common property of the human race." (3)

Background

Born in 1918 to the German author Thomas Mann and Katia Pringsheim Mann, Elisabeth came of age on a continent shadowed both by total war and by the rise of totalitarian government, before her family immigrated to the United States in 1938. As the youngest daughter in an extraordinary family, E. M. B. grew up in an atmosphere where free inquiry, cosmopolitanism, and feminism were part of her intellectual inheritance. Her father was a critic of hyper-nationalism and anti-Semitism in Germany before the rise of Hitler, and her mother was the granddaughter of one of the most outspoken European feminist authors of the nineteenth century, Hedwig Dohm. One of Dohm's most famous statements ("Die Menschenrecht habt keine Geschlecht" or "Human rights have no gender") appears as the epitaph on Dohm's headstone, and was a credo that inspired E. M. B. to advocate a social order that affirmed not only cosmopolitan democracy but also unprecedented freedom from traditional conceptions of gender. (4)

Although Elisabeth's father was perhaps the most famous German author of the twentieth century, Thomas Mann was a better exemplar of Enlightenment cosmopolitanism than he was of any particular national culture. The novel for which he won the Nobel Prize, Buddenbrooks, presents itself as the chronicle of a merchant family in decline. However, it also expresses an eloquent lamentation for the loss of a pre-national culture in the coastal cities of northern German cities such at Lubeck. Such cities had deeper ties to the seafaring and cosmopolitan culture of the Hanseatic League than to the militaristic Prussian culture that animated German unification in the second half of the nineteenth century. In the imagery of Buddenbrooks, the sea represents freedom, equality, and even genuine love. When a young Antonie Buddenbrook asks her beloved Morten, who has joined a secret liberal society at his university, to explain his cause, he says, "Freedom," and, without another word, gestures to the open sea. Long after Antonie's father compels her to accept an arranged marriage, mementos from the sea still torture her with the memory of the liberty and love that she has lost. (5)

Thomas Mann's model for Antonie Buddenbrook was his aunt Elisabeth Mann, who died in 1917. The following year, when his youngest daughter was born, she was given the same name. Like the character of Antonie Buddenbrook, some of young Elisabeth's most formative memories involved the sea, and she came to see it as a powerful symbol for freedom. At the age of eight, Elisabeth saw her family reprimanded and fined by local authorities in Fascist Italy for letting her bathe naked in the Mediterranean. (6) Her family's political outlook and confrontations throughout the 1920s and 1930s inspired Elisabeth to embrace the cause of antifascism. In 1939, she married the outspoken Italian scholar and antifascist Giuseppe Antonio Borgese, on the eve of the Second World War. (7)

Decades later, when E. M. B. addressed the legal issue of ocean conservation, she employed language that echoed Buddenbrooks:
   The Oceans are free. The mere thought
   that they could
   be "appropriated" by any ruler however
   mighty, by any nation,
   no matter how vast its empire, has
   something blasphemous. The oceans, in
   a way, are the most sublime expression
   on earth of what is extra-human,
   superhuman, indomitable. (8)


Freedom, of course, is an abstract concept, while the sea is an immense and tangible reality. We perceive an abstraction with our intellect and a tangible reality with our senses. The rare genius of a great artist is to bring these two modes of perception together so that what is meaningful to our intellect may become tangible to our senses, and what it is tangible to our senses may become meaningful to our intellect. This was a gift that E.M.B. certainly possessed, and it often made her contributions to the discourse of International Relations extraordinarily eloquent and engaging. In the field of International Relations, which has produced so much colorless prose, larded with technical jargon and an alphabet soup of acronyms, the work of E. M. B. belongs in a category of its own. She was that rare combination of an expert and a poet.

The Law of the Sea

The single most important idea that E. M. B. brought to the issue of ocean conservation was the principle that the seabed under international waters must be legally established as the common heritage of the entire human race. Her role in developing and promoting this idea began with her experience as part of the Committee to Draft a World Constitution at the University of Chicago immediately after World War Two. As part of this project, she worked with university president Robert Maynard Hutchins, the philosopher Richard McKeon, and with her husband, Giuseppe Antonio Borgese. Drawing on the work of dozens of scholars, the Committee studied both functioning and proposed democratic constitutions from around the world as it attempted to design a framework for the stable and sustainable practice of representative democracy on a global scale . (9)

The fact that both Stalin's propaganda machine in the USSR and jingoistic reporters in the United States forcefully condemned this draft constitution reflects the determination of its authors to transcend the limitations of both doctrinaire ideology and narrow nationalism. Jealously protecting Stalin's conception of Soviet national interest, Pravda condemned the Committee to Draft a World Constitution as a Trojan horse for American imperialism. Meanwhile, conservative American papers such as the Chicago Tribune aired suspicions that the Committee was animated by a desire to advance Marxist communism. Of course, since this project was being conducted in the United States, the charge that it was a Yankee capitalist plot may have had some credibility for Pravda readers. Likewise, the charge that the Committee to Draft a World Constitution was establishing a beachhead in Chicago for the advance of world communism could point to a key concept in the document that it produced, i.e. the principle that the classical elements essential to life, "earth, water, air, and energy," must be legally recognized as "the common property of the human race." (10)

Though the vigilant editors of the Chicago Tribune decried this principle in the late 1940s as a clever Marxist ruse, it had much deeper roots in the history of human civilization. As the historian Peter Linbaugh has documented in The Magna Carta Manifesto, the foundational Magna Carta of 1215 drew much of its power from another document promulgated at the same time, the Charter of the Forest. This charter guaranteed ordinary people access to common lands for gathering food, grazing cattle, hunting, and the gathering firewood. (11) Of course, in their allusion to the classical elements of earth, air, fire, and water, the drafters of the World Constitution reached even further back, to the philosophical and political discourse of the ancient Greeks.

The principle that a global commons must be protected for all, though more narrowly applied than E. M. B. would have liked, was enshrined as Article 136 in the Law of the Sea when it was drafted in 1982. It led to the creation of the International Seabed Authority (ISA), based in Kingston, Jamaica. All mining of mineral resources on the ocean floor under international waters is regulated by the ISA and a portion of the profits from this economic activity go into a common resource fund that is available to aid economic development in all nations, including those which are landlocked.

After the negotiations for the Law of the Sea were completed and it was opened for signature in 1982, Arvid Pardo, the UN ambassador from Malta and a close confidant to E. M. B., expressed some disappointment that the treaty did not go further in safeguarding natural resources and establishing the rule of law on a global scale. (12) On balance, the Law of the Sea is quite friendly to the territorial claims of nation states and the commercial interests of multinational corporations. The legal category of the Exclusive Economic Zone (EEZ), allows many seafaring nations to assert their sovereign interests further from their shores than ever before. In spite of the fact that the Law of the Sea is actually quite accommodating to national sovereignty and to commercial interests, the principle that the ocean floor under international waters must remain the common property of the entire human race has proven unacceptable in some quarters.

In particular, advocates of traditional nationalism and free market fundamentalism at organizations such as The Heritage Foundation and the Cato Institute see this concept as poison pill. For this reason, the Reagan administration refused to sign the Law of the Sea treaty in 1982, while former Nixon speechwriters Pat Buchanan and William Safire advanced a broad critique of the treaty in the press, even dusting off the charge, leveled at E. M. B. and her Chicago colleagues four decades earlier, that the principle of sharing the wealth of a global resource must be a Marxist plot. Building on the old chestnut of creeping Marxism, Safire added a racially charged metaphor when he sounded the alarm that, "the nose of the third world camel is in the industrial world's tent" when he urged the Reagan administration to kill the treaty. (13)

In an attempt to cut the emerging treaty off at the knees, the Reagan administration sent former Nixon Secretary of Defense Donald Rumsfeld as a special envoy to the United Kingdom, West Germany, and France to propose an alternative framework for exploiting mineral resources under international waters entirely outside the framework of the Law of the Sea treaty. (14) Given the size of these economies, a success for Rumsfeld in this endeavor would have effectively destroyed the treaty. However, these nations all came to accept the treaty. Rumsfeld's attempt to create what we might call a "coalition of the unwilling" failed, largely because the treaty as it stood was so accommodating to national and corporate interests. By 1994, more than 160 nations had endorsed the Law of the Sea, thus endowing it with the status of accepted international law. The Clinton administration agreed to sign the treaty but did not submit it to the Senate for ratification. To date, the United States still has not ratified the Law of the Sea, though the U.S. Navy has declared that it will accept it as law. The principle that E. M. B. helped to articulate at the University of Chicago--the concept of the common heritage of the human race--has proven to be too radical a concept for American opponents to the Law of the Sea.

The specific issue that inspired the creation of the International Seabed Authority was the desire to mine manganese nodules from the surface of the seabed below international waters. These nodules, pieces of igneous rock that resemble burnt potatoes, are rich in valuable minerals such as copper, nickel, and cobalt. Though the market price of these minerals was rapidly rising in the 1960s and 1970s, it has since stabilized to an extent that the cost of harvesting manganese nodules from the ocean floor still outstrips their market value. Thus, the refusal to accept the International Seabed Authority is, in reality, the refusal to accept the diminution of potential profits in a theoretical future rather than the loss of actual profits in the present. For this reason, the vast majority of countries, including nations such as Japan with extensive maritime interests, have been willing to accept the Law of the Sea. Those who have been resolutely opposed, such as the Reagan administration, an oppositional bloc within the U.S. Senate, and think-tanks such as the Cato Institute and Heritage Foundation, have been opposed for strictly ideological rather than economic reasons. These opponents recognize that establishing the seabed under international waters as the common property of mankind would establish a powerful principle that could limit the activities of private industry in other common areas, such as the Arctic, Antarctica, and outer space. It could even establish a precedent for limiting the actions of private industry in order to protect the common resources of the earth's atmosphere and climate.

They are correct.

Conclusion

In the seventeenth century, Hugo Grotius argued for Mare Liberum, or a free ocean, citing the fact that the sea by its nature is not clearly divisible. (15) In the twenty-first century, we are discovering something that Elisabeth Mann Borgese bore witness to for her entire career as a writer and activist. That is the concept which she helped to articulate at the University of Chicago, that certain fundamental resources constitute the common property of the human race. That she helped to weld this concept to the Law of the Sea is a signal achievement. If the oceans could be divided, owned, and degraded in the name of private enterprise, so could the atmosphere that we breathe and the climate on which we depend as the lynchpin of our ecosystems. If we destroy the oceans in the name of private property and national sovereignty, we will destroy ourselves. Elisabeth Mann Borgese dedicated the last three decades of her life to this realization: Only if we save the oceans for the sake of our common interests, can we manage, as a species, to save ourselves.

Notes:

(1.) John Hannigan, The Geopolitics of Deep Oceans (Cambridge: Polity Press, 2015), 125.

(2.) Betsy Baker, "Uncommon Heritage: Elisabeth Mann Borgese, Pacem in Maribus, the International Ocean Institute and Preparations for UNCLOS III, "Ocean Yearbook 26 (2012), 11-34.

(3.) Elisabeth Mann Borgese, A Constitution for the World (Santa Barbara: Center for the Study of Democratic Institutions, 1965), 28.

(4.) For Thomas Mann's early opposition to extreme nationalism and anti-Semitism, see chapter 22 in: Ronald Hayman, Thomas Mann: A Biography (New York: Scribner, 1995). For an extendedlook zm E.M.B.'s ideas about cosmopolitandemocracy and gender see the epilogue of: Elisabeth Maea Borgeee, Ascent of Woman (New York: Geegge Braziller, 1963).

(5.) Thomas Mann, Buddenbrooks, H. T. Lowe-Porter, trans. (New York: Alfred A. Knopf, 1983, 115.

(6.) Ronald Hayman, Thomas Mann: A Biograpy (New York: Scribner, 1995), 363.

(7.) Ronald Hayman, Thomas Mann: A Biography (New York: Scribner, 1995), 456.

(8.) Elisabeth Mann Borgese, "Lecture on the Ocean Regime" 1969.

(9.) Betsy Baker, "Uncommon Heritage: Elisabeth Mann Borgese, Pacem in Maribus, the International Ocean Institute and Preparations for UNCLOS III, "Ocean Yearbook 26 (2012).

(10.) John W. Boyer, "Drafting Salvation" University of Chicago Magazine 88, no.2 (December 1995), accessed June 23, 2016, https://magazine.uchicago. edu/9512/9512TOC.h tml.

(11.) Peter Linebaugh, The Magna Carta Manifesto (Oakland: University of California Press, 2008).

(12.) Arvid Pardo, "The Law of the Sea: Where Now?," Law and Contemporary Problems 46, no. 2 (Spring 1983), 102.

(13.) William Safire, "Welcome to Club Seabed" New York Times (November 8, 1982), A17.

(14.) Ibid.

(15.) Hugo Grotius, Richard Hakluyt, trans, The Free Sea, originally published as Mare Liberum in 1609 (Indianapolis: Liberty Fund, 2004), 85.

Richard Samuel Deese, Boston University
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Title Annotation:World History Association
Author:Deese, Richard Samuel
Publication:World History Bulletin
Article Type:Biography
Geographic Code:4EUGE
Date:Sep 22, 2016
Words:2920
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