Volume 42 | Number 2 Spring 2007
Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It)
Abstract
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the U.N. Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended, but limited, jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and sustainably benefit all. Yet whether UNCLOS in fact, and in law, is now living up to this bidding is in doubt. The critical task of delineating a true outer limit to the continental shelf is now a matter of implementing the delicate balance between applied science and supervised unilateral claims embodied in Article 76 of UNCLOS. The stated scientific criteria—despite the attempt to make the criteria definitive—remain vague and ambiguous, in addition to suffering from the uncertainties inherent in any nascent scientific endeavor. Further, the administrative and financial support established to assist in working through these challenges has brought its own bureaucratic obstacles. This has led to a near-perfect storm for small island developing States, which rely most heavily on marine resources for their culture and survival yet also face the most complex dilemmas in Article 76—all the while having generally the least capacity available to prepare their submissions. The challenges facing the seabed beyond the continental shelf come not from implementation of a legal process, but from substantive overlap and even conflict, between Part XI of UNCLOS and other international law. Part XI seems to provide clear grounds to refute the assertion of international patent rights for seabed organisms. This could set the stage for a fragmentation of international intellectual property rights under TRIPS and the UNCLOS seabed regime. In addition, the expansion of bottom trawl fishing that directly impacts and exploits coral and the seabed is excused under high seas fishing freedoms, but could also be viewed as infringing on the basic tenets of the seabed “common heritage;” thus, it could invoke individual State responsibility or the regulatory jurisdiction of Part XI. As this Article suggests, at each juncture the necessity of consensus for international property law can also become an effective and constructive tool for encouraging countries to work together on managing the implementation, development, and proliferation of the law of the sea.
Summary
- Introduction
- Development of the Law of the Sea: From Freedom of Common Seas to Conflict Over Oceans
- “Ancient” Law of the Sea
- “Classical” Freedom of the Seas: From Natural Law to Positivism
- “Specially Affected States,” Unilateral Claims, and a Breakdown in Positivist Order
- The Development of UNCLOS as International Law Erga Omnes
- UNCLOS as a Grand Bargain
- UNCLOS and the Necessity of Consensus for Legal Property Rules
- Meeting the Legal and Implementation Challenges of Article 76: SIDS as Ridge Laboratories or Canaries in the Continental Shelf Coal Mine?
- “Implementing” Article 76: The Definition, Delineation, and Difficulties of the Legal Continental Shelf Under UNCLOS
- Definition, Rights, and Obligations in the UNCLOS Continental Shelf
- The Scientific and Legal Challenges of the Delineation Process
- The Precarious Position of SIDS Under Article 76
- The Problems and Prospects for Implementing Article 76 “in Particular” for SIDS
- Special Capacity-Building, Advice, and Assistance for SIDS and Other Developing Countries
- The Status of SIDS in Completing Submissions to the CLCS
- Facilitating Progress and Order for SIDS Under Article 76
- “Implementing” Article 76: The Definition, Delineation, and Difficulties of the Legal Continental Shelf Under UNCLOS
- “Disentangling Part XI: The UNCLOS Regime for the Seabed and its Resources
- Intellectual Property in the Deep: Intangible Rights in a Spatial Regime?
- Deep Sea Fisheries Under Part XI: Where High Seas Freedoms Hit Rock Bottom
- “Activities in the Area”: Corals and Their Calcium Structures as “Mineral Resources”
- “Activities in the Area”: “Exploitation” as Consumptive Use
- Regulatory, Litigious, and Political-Legal Options to Effectively Address Bottom Trawling Under UNCLOS
Footnotes
For complete footnote citations, download the PDF.