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)
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I. Introduction
The product of “the largest and most complex international negotiation ever held,”1 the 1982 United Nations Convention on the Law of the Sea (UNCLOS)2 represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space. Its adoption marked the most significant achievement for international law since the U.N. Charter;3 UNCLOS has been viewed variously as a “Constitution for the Oceans,”4 a “world order treaty,”5 and a “primary pillar of international law.”6 Yet, whether UNCLOS in fact, and in law, is now living up to this billing is in doubt.
UNCLOS is more than just the treaty itself and requires more than just the formal validity of its law for normative force. Like other treaty regimes, UNCLOS was created from, and must endure within, a political context. UNCLOS came into force as the codification of a bargained consensus to manage conflicts over boundaries, resources, and new human demands and technologies. This bargain was famously laid out by Malta’s Ambassador to the United Nations, Arvid Pardo, in a speech to the General Assembly in November 1967.7 Pardo proposed a consensus-based framework that, at its heart, provided coastal States with extended, but limited, jurisdictions, while providing that the seabed and its resources beyond were to peaceably and sustainably benefit all as the “common heritage of mankind.”8
The first task of the law of the sea has been to establish a network of spatial property rules for areas of ocean space held privately, publicly, in common, or not at all.9 Certain property rules might be initially established on a bilateral or multilateral basis, as for boundaries between opposite and adjacent States.10 However, other property rules cannot, such as those affecting the interests of the international community generally (for example, the lines separating national jurisdictions from the areas beyond).11 The delineation of such maritime boundaries affects the position of every other State.12 For example, a broader continental shelf necessarily entails a smaller seabed “common heritage,” and the legality of any delineation depends as much on a coastal State’s claim as on others’ recognition and respect for it. These are in rem property rules that must be held and recognized erga omnes: they require a universality of recognition to be law.
The various types of erga omnes property rules (embodied in juridical sovereignties, jurisdictions, and freedoms) are fundamental in international law—and absolutely central to the law of the sea—and, as this Article argues, require a consensus by States to be legally effective. Res nullius areas (the regime for the high seas prevailing into the 20th century) are characterized by legal “freedoms” and owe their permissive existence to the lack of exclusive claims or undue interference against others’ freedoms. Res communis areas (roughly the UNCLOS regime for the high seas) are similarly unowned, but require an abiding respect for the present and future enjoyment of the commons. Res publica areas (essentially the UNCLOS regime for the seabed and its mineral resources beyond the legal continental shelf) also prohibit private claims of ownership, but require that economic uses be carried out under the authority of a public authority or trustee.13
Although UNCLOS as a political bargain and legal regime may aspire to universality, it is undoubtedly an imperfect and incomplete instrument. In the Convention’s most serious challenge, the International Seabed Authority (ISA or Authority), which was to administer the strikingly redistributive “common heritage of mankind” seabed regime of Part XI, met strong opposition in its original form, notably from the United States.14 The original ISA, in the U.S. view, was too expensive and it afforded too little control to industrialized countries relative to G-77 developing countries. The United States, Soviet Union, United Kingdom, Japan, and others soon attempted to formulate their own parallel licensing regime to allow them greater control with fewer taxes, regulations, technology transfers, and set-asides than did the original Part XI.15 But it soon became apparent that potential conflict between the two regimes posed great legal and political uncertainties for any seabed venture. The Secretary-General thus convened States to renegotiate, a process eased by the collapse of world commodity prices and the Soviet command-driven economy model by the late 1980s, which drained the seabed negotiations of much of their earlier economic and ideological contentiousness.16 This renegotiation yielded the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994 ISA Implementing Agreement or 1994 Agreement).17 The 1994 Agreement amended provisions of Part XI18 to allow industrialized States greater flexibility and control over seabed activities, while preserving the ISA’s regulatory and revenue-sharing mandate and the basic res publica status of the seabed. This modification cleared the way for nearly every country to agree to UNCLOS.19 President George W. Bush now supports U.S. accession to UNCLOS “as a matter of national security, economic self-interest, and international leadership . . . .”20
The original UNCLOS also proved deficient in its provisions for migratory and trans-jurisdictional ‘straddling’ fish stocks,21 a situation which spawned the 1995 U.N. Agreement on straddling fish stocks (Straddling Fish Stocks Implementing Agreement or 1995 Agreement).22 The 1995 Agreement elaborated principles of cooperation for conserving and managing straddling and highly migratory fish stocks and required that the precautionary approach, together with the best available scientific information, be employed in doing so.23
UNCLOS’s challenges do not end with the 1994 and 1995 Implementing Agreements. Nowhere are these challenges more acute than the delineation of national jurisdictions (via the legal continental shelf) and the scope and governance of the “common heritage” area beyond—where States have devoted their most exacting negotiations and careful compromises. The central question of this Article is whether UNCLOS, as a treaty and as a regime, is sufficient to sustain its status as the governing—even constitutional—property law for the sea.24 While UNCLOS did settle on a concrete definition and process for delineating the legal continental shelf, the implementation of this mechanism is off to a halting start. Moreover, the modified Part XI is only now being tested by its first mining contracts, and conflicting regimes for deep sea intellectual property and bottom fisheries are possible.
This inquiry begins in Part II with a recapitulation of the development of the law of the sea in terms of its objects, sources, intellectual foundations, and participants. As oceans are wilds, and generally uninhabitable by humans, the law has followed where technology, trade, and exploitable resources have led peoples to claim and use the oceans in potentially conflicting ways. A recurring theme is the balancing of coastal States’ claims of offshore jurisdictions with the prerogative of others to use the oceans as they can. The early ‘freedom of the seas’ doctrines fashioned by the Romans, and later elaborated in Europe in the 16th and 17th centuries, were the product of customary practices, which by the 18th and 19th centuries took on the patina of natural law and the positivism of consent. But while freedom of the seas worked reasonably well in a pre-globalization era, the 20th century witnessed tremendous expansion in knowledge about and use of the oceans. For the first time vast offshore claims could be maintained by coastal States on the basis of new technological, commercial, and military feasibility. Taken to the extreme, mid-20th century unilateralist doctrines of ‘exploitability’ and ‘specially affected States’ threatened intractable conflict and persistent disorder on the oceans.
Perhaps the last great project by the General Assembly, UNCLOS represents the promise of a new, consensual law of the sea. Part III describes the bargain. The Conference negotiations focused around three central and related questions. First, how would States’ offshore jurisdictions be defined and delineated from each other and from ocean space beyond? This first question set the scope for the second: what rights, interests, responsibilities, and obligations would States have in relation to the oceans and to each other in each of these zones? The Conference from its preparatory stages took broad views of both these questions, working from the assumption that the seabed beyond national jurisdictions would be res publica in which all have an interest, and from which all should benefit, but also that coastal States should be assured certain and relatively expansive offshore jurisdictions. This broad view stemmed from, and suggested an answer to, the third central question: what structure would the negotiations and final text have? The approach taken was to negotiate a grand agreement that would be accepted as a whole, and as the result of, consensus. This was the only way agreement could be reached and the only way any regime setting boundaries and maintaining a common heritage could be legally effective.
Despite the tremendous accomplishment that UNCLOS represents for international law, the Convention faces challenges meeting its objective of establishing legally effective property rules for all of ocean space. Part IV examines the implementation of Article 76 on the legal continental shelf, which is the crucial nexus separating the extent of coastal State jurisdiction over seabed natural resources from the “common heritage” beyond. Before UNCLOS, the definition of the continental shelf remained unsettled. Important maritime nations leveraged their economic and political advantages, as well as the limits of existing positivist international law, to stretch the definition to the extent of ‘exploitability’ and prescription, while less-developed and inland States struggled to assert an interest in the commons. The solution Conference negotiators reached was to depoliticize extended continental shelf claims by defining the breadth of continental shelfs according to legalized scientific criteria. However, UNCLOS also left it up to each coastal State to undertake the scientific research and analysis necessary to make a continental shelf claim—and to do so on a deadline (now set for 2009). Successful implementation of this approach, one part science and one part unilateral claim, will require serious worldwide efforts to sample and map the sea floor, to prepare claims for consultation with the scientific-advisory Commission on the Limits of the Continental Shelf (CLCS), and to accept the results. In particular, the most scientifically and legally challenging aspect of Article 76 concerns “ridge” claims, about which small island developing States (SIDS) are particularly vexed. Despite innovative capacity-building initiatives for SIDS, the Article 76 process is facing serious challenges. Without a concerted effort to streamline the submission process, to reform the CLCS and the U.N. Division on Ocean Affairs and the Law of the Sea (DOALOS) to engage with SIDS in a more active partnership, and to adapt—by consensus—the rules and regulations governing the submission deadline, the current implementation trajectory threatens to tip the delicate, but fundamental, balance struck in Article 76.
Part V raises questions about the efficacy of the spatial regime governing certain seabed resources in a world where human activity in the deep ocean is expanding in ways not neatly anticipated by UNCLOS. It argues in particular that recent efforts to patent organisms originating in the seabed run afoul of the basic proscription in Part XI against appropriation of “any part” of the deep seabed area beyond national jurisdictions (the Area). It also takes up recent negotiations over destructive bottom trawl fishing, which scrapes the seabed and thus does not fit comfortably within the ‘free’ high seas regime and might, in fact, invoke the jurisdiction of the ISA under Part XI. In this regard, this paper proposes an agenda for a new consensus for action by the General Assembly to effectively regulate bottom trawling so as to avoid a painful reopening of the foundational debates over the seabed global commons.
Part VI concludes with an instrumental agenda for international law and UNCLOS lawmaking of consensus to address the ever-evolving challenges of the law of the sea.