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)
VI. Conclusion: UNCLOS as Property Law and Lawmaking
The conflicts engendered by ever more expansive unilateralist and inter se claims to ocean space led Ambassador Pardo to make his appeal for a new law of the sea and motivated the move in UNCLOS to universalism and consensus over property rules that by their very nature must be held and respected erga omnes to be effective. This paper has examined the operation of two critical property law issues emphasized by Pardo: the “outer limit” of the continental shelf and the extent of res publica for the seabed commons. As this paper has explored, each of these issues faces its own pitfalls and promises for maintaining the necessary consensus separating law from disorder.
Pardo’s first concern was with delineating a true outer limit to the continental shelf, and for UNCLOS, this is now a matter of implementing the delicate balance between applied science and supervised unilateral claims embodied in Article 76. This approach still has much to prove. The attempt to ‘legalize’ scientific criteria still retains legal vagueness and ambiguities as well as 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 SIDS, 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. If unheeded, this presents the formula for an eventual showdown between SIDS’ “inherent” rights to a continental shelf, irrespective of secondary deadlines and CLCS procedures, and the interests, expectations, and bargained consensus of the international community embodied in Article 76. And one country’s fall (or jump) off this tightrope could well lead to opportunistic leaps by others and a general discrediting of the UNCLOS continental shelf regime.
Pardo’s other main proposal was for a non-appropriable and equitable seabed regime. The challenges facing the seabed come not from implementation of a legal process, but from substantive overlap and even conflict between Part XI 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. And 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” and thus could invoke individual State responsibility or the ISA’s regulatory jurisdiction under Part XI.
At each juncture, the need for maintaining property rules erga omnes can also become an effective and constructive tool for encouraging countries to work together on managing the implementation, development, and proliferation of the law governing ocean space. Uncertainty and conflict over rules that demand consensus invite renegotiation and further agreement by all. For Article 76 this has meant extending deadlines and instituting initiatives to aid SIDS and other developing countries in implementation, and any continuing difficulties can be handled by progressive steps, patience, and a shared commitment to working through the Article 76 process. For Part XI—still the most tenuous part of UNCLOS—the basic res publica status of the seabed, together with the regulatory jurisdiction of the ISA and binding dispute settlement under Section 5, make the stakes especially high. Averting a showdown over patents or bottom trawling will require building new international agreements onto and within the UNCLOS consensus framework.
The preamble to the Convention states that it is to “contribute to the strengthening of peace, security, cooperation, and friendly relations among all nations.”440 That is also the spirit of this paper. To save a regime, sometimes its foundations must be turned and shaken to be set back right.
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Footnotes
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