Volume 43 | Number 3

Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It)

by Peter Prows

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

1. Introduction


2. Development of the Law of the Sea: From Freedom of Common Seas to Conflict Over Oceans
   1. “Ancient” Law of the Sea
   2. “Classical” Freedom of the Seas: From Natural Law to Positivism
   3. “Specially Affected States,” Unilateral Claims, and a Breakdown in Positivist Order
3. The Development of UNCLOS as International Law Erga Omnes
   1. UNCLOS as a Grand Bargain
   2. UNCLOS and the Necessity of Consensus for Legal Property Rules
4. Meeting the Legal and Implementation Challenges of Article 76: SIDS as Ridge Laboratories or Canaries in the Continental Shelf Coal Mine?
   1. “Implementing” Article 76: The Definition, Delineation, and Difficulties of the Legal Continental Shelf Under UNCLOS
      1. Definition, Rights, and Obligations in the UNCLOS Continental Shelf
      2. The Scientific and Legal Challenges of the Delineation Process
   2. The Precarious Position of SIDS Under Article 76
   3. The Problems and Prospects for Implementing Article 76 “in Particular” for SIDS
      1. Special Capacity-Building, Advice, and Assistance for SIDS and Other Developing Countries
      2. The Status of SIDS in Completing Submissions to the CLCS
      3. Facilitating Progress and Order for SIDS Under Article 76
5. The Enduring Frontier: Two Problems for UNCLOS and the Seabed “Common Heritage”
   1. “Disentangling Part XI: The UNCLOS Regime for the Seabed and its Resources
   2. Intellectual Property in the Deep: Intangible Rights in a Spatial Regime?
   3. Deep Sea Fisheries Under Part XI: Where High Seas Freedoms Hit Rock Bottom
      1. “Activities in the Area”: Corals and Their Calcium Structures as “Mineral Resources”
      2. “Activities in the Area”: “Exploitation” as Consumptive Use
      3. Regulatory, Litigious, and Political-Legal Options to Effectively Address Bottom Trawling Under UNCLOS
6. Conclusion: UNCLOS as Property Law and Lawmaking

{pagebreak}

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.
{pagebreak}

II. Development of the Law of the Sea: From Freedom of Common Seas to Conflict Over Oceans

The development of the law of the sea, culminating in UNCLOS, serves as both a cautionary tale about the fragility of unmanaged international lawmaking and as an object lesson in how shared interests threatened by the potential for conflict can induce new agreement on a universal basis. Beginning with the earliest Roman customs, evolving to the British and Grotian ‘freedom of the seas,’ and continuing on to the postwar reliance on the consent and abilities of certain ‘specially affected’ States, the development of the law of the sea has followed humankind’s evolving needs and uses in the oceans. Pre-UNCLOS, the development of the ‘law’ was unilateralist and relied primarily on developing customary law, first under the guises of natural law and, later, by a narrow positivism. This worked passably well at a time when fish stocks were thought to be inexhaustible, a cannon shot could travel only three miles, and only a small number of States had any significant reach into the oceans. But the 20th century witnessed exponential growth in worldwide fishing, seabed mining technologies, new political and moral demands by emergent international actors, and continuously expanding civil, scientific, and military traffic on the oceans that overwhelmed the existing patchwork of customs and treaties. After several false starts, this disorder would yield the groundwork for a new consensus law of the sea.

A. “Ancient” Law of the Sea

The ancient Greeks had the very first formal rules regulating marine commerce, carriage, and ships—what might now be called ‘maritime’ or ‘admiralty.’²⁵ The second-century Roman jurist Marcianus, in the first recorded juridical view of ocean space,²⁶ wrote that the sea, its fish, and even coastal waters were “communis omnium naturali jure”²⁷ or “common or open to all men by the operation of natural law.”²⁸ Under this view, the oceans up to the shore belonged to all and could be appropriated by no one.²⁹ The Emperor Antoninus struck a similarly naturalist tone, proclaiming: “I am the master of the land, but the law is the master of the sea.”³⁰ (Of course, there was little need to further develop the law of the sea since, during this time, the Mediterranean was controlled by the Roman navy and surrounded by the Roman Empire.)³¹

B. “Classical” Freedom of the Seas: From Natural Law to Positivism

With the collapse of the Roman Empire, the fragmented European States began to compete and conflicts began to occur over the oceans, particularly concerning trade routes, fishing rights, transit taxes, and policing.³² By the 13th and 14th centuries, these developments led to the first real claims of jurisdiction to waters adjacent to States’ coasts.³³ The Spanish and Portuguese proceeded over the next two hundred years to divvy up the entire ocean between themselves—all lands east from a line off Cape Verde were Portuguese and all those to the west were Spanish.³⁴ Spain was also reserved the right “to sail . . . freely, securely, and peacefully” across the Portuguese ocean to the New World.³⁵ “Thus, over a period of one thousand years, the Western world passed from a policy of total freedom of the sea to the principle of legal division of the entire ocean.”³⁶

Increasing use of the seas over this period brought about a counterrevolution in the law of the sea that led to intellectual and legal effects that resonate today. This counterrevolution was led by the great Dutch jurist Hugo Grotius. As Spanish, Portuguese, and papal influence waned by the 16th and 17th centuries, and as commerce by sea expanded in Asia and the Americas, the Dutch East India Company commissioned Grotius to justify its trade routes in the Far East, despite extant exclusive Portuguese maritime claims there.³⁷ The result was his seminal 1609 work Mare Liberum.³⁸ Grotius looked to natural law for the view that the realm of commerce was beyond all earthly papal and religious authority and, since “no one can give away what he does not himself possess,” the Pope’s (and Portuguese) claims to oceanic trade routes in Southeast Asia were invalid.³⁹

Grotius’s argument was more than just a rejection of papal authority over the oceans. He viewed ocean space as a common thing (res communis), open for all to use, but for no one to keep or abuse.⁴⁰ His views echoed Marcianus from more than a thousand years earlier and remain pertinent today. To Grotius, the cornerstone of private, exclusive property rights was effective occupation, to which, beyond a narrow coastal band, the oceans were insusceptible.⁴¹ Grotius cautioned that resources and rights-of-way can be crowded out, exhausted, or consumed by a policy of open use, and, it is worth emphasizing, he argued that one’s right to the resources of the sea existed only insofar as it would not interfere with the interests of others to do the same in the present and future.⁴² He also suggested that benefits from common things should be enjoyed by all.⁴³

In Grotius’s time fish stocks were thought inexhaustible and marine pollution and destructive fishing practices had not yet become a real concern. As a practical matter, this meant that actors would be unencumbered to use the oceans as they saw fit. In this vein, Grotius was readily appropriated by laissez-faire philosophy to support expansively ‘free’ high seas.⁴⁴ By the 20th century, res communis responsibilities had been almost completely overshadowed by res nullius freedoms. Britain, its dominant Royal Navy, and its jurists can take much of the credit during this period for enforcing and ensuring these freedoms, tempered only by regulation of piracy and slave trafficking.⁴⁵ John Locke,⁴⁶ an Englishman who also had tremendous influence on the U.S. Constitution, looked to natural law to argue that property rights are not created until a person takes an object and mixes it with labor. This would mean that the ocean and its resources are unowned until, for example, a fisherman by his effort catches a fish. John Selden⁴⁷ and, later, Cornelius van Bynkershoek,⁴⁸ stressed custom and State practice rather than natural law to posit that offshore waters, for at least some distance, could be effectively controlled and defended, if not actually inhabited, while the waters beyond were res nullius.⁴⁹ Thus, the pragmatic “cannon-shot doctrine” was born to set the breadth of the territorial sea at three nautical miles,⁵⁰ approximately the distance a cannon on shore could fire out to sea.⁵¹ But the tumultuous 20th century would witness the end of Pax Britannia and, in its place, the development of a new legal order for the seas.

C. “Specially Affected States,” Unilateral Claims, and a Breakdown in Positivist Order

Russia’s 1911 claim of a six-mile territorial sea, with six additional miles of exclusive fishing rights beyond, presaged the turmoil for law and order on the sea that would follow for most of the 20th century.⁵² Based on the increasing range of artillery in an increasingly unstable Europe—as well as new demands for fishing and seabed resources—France, Italy, Spain, and the Ottoman Empire quickly followed Russia with their own extended offshore claims.⁵³ After World War I, with England weakened, an increasingly assertive United States claimed for itself an extended “contiguous zone” wherein it held jurisdiction to prescribe and enforce its criminal law, particularly against liquor smuggling.⁵⁴ The failure of the 1930 Hague Conference to agree on the breadth or definition of coastal waters subject to exclusive coastal State jurisdictions⁵⁵ signaled the complete desuetude of the cannon-shot doctrine.⁵⁶ Yet there was also no clear successor rule.

Complete freedom of the seas, beyond a narrow coastal band, suffered a procession of ever-grander new claims in the reconstructing post-World War II world. The first decisive move was U.S. President Truman’s two unilateral proclamations of September 28, 1945: the Fisheries Proclamation⁵⁷ and the Continental Shelf Proclamation.⁵⁸ These proclamations asserted new regulatory and exclusive rights in ocean areas well beyond the traditional three-mile limit. They also precipitated a varied array of unilateral claims by other States and new multilateral attempts to codify a law of the sea.

The Fisheries Proclamation asserted jurisdiction to regulate fishing⁵⁹ beyond the traditional three-miles in areas “contiguous to [United States] coasts,” which Truman might deem as “conservation zones.”⁶⁰ This Proclamation had roots in concerns from the 1930s over Japan’s technologically sophisticated and aggressive distant water fishing operations (particularly for salmon and halibut) off the Pacific coasts of the United States and Canada.⁶¹ With the attack at Pearl Harbor, this concern took on an additional “food security” dimension, especially since the Japanese fishing fleet had also been used for military intelligence gathering in the Pacific during the 1930s.⁶²

Truman’s better-known Continental Shelf Proclamation went a step further than the Fisheries Proclamation and claimed an exclusive right to the “natural resources” of the “continental shelf beneath the high seas but contiguous to the coasts of the United States.”⁶³ Here too, Truman reacted to the experience of the war and the U.S.’ position afterwards, where oil was an increasingly important strategic and economic resource.⁶⁴ The Continental Shelf Proclamation’s “contiguous” definition of ‘continental shelf’ (a legal term not commonly used by geoscientists)⁶⁵ was vague, but nevertheless, the United States used it to claim exclusive seabed natural resource rights as far out as fifty miles from the West Coast and two hundred fifty miles from the East Coast.⁶⁶

Truman’s proclamations quickly became precedent for other States’ new, larger, and often differing unilateral claims into what had been res nullius. These new claims included differences both of degree (such as differing breadths for the territorial sea or exclusive offshore fishery rights) and of kind (such as new regulatory initiatives for research or pollution control). William Wertenbaker, reporting at large for The New Yorker in 1983, described the incongruous legal state of affairs for offshore rights between World War II and the adoption of UNCLOS:

[M]ore than ninety countries, including the United States, claimed control over fishing as far as two hundred nautical miles from their shores. Canada and the Soviet Union have regarded much of the Arctic as special areas subject to their jurisdiction. Canada, citing the risk of pollution, which has been seen as a growing threat by most countries, enacted a law that could, for instance, deny oil tankers the right of innocent passage . . . . While some countries came to the conference claiming rights only to fish or other resources, a number claimed total sovereignty over waters out to twelve, fifty, a hundred, or even two hundred miles offshore. Indonesia, the Philippines, Fiji, and other island nations claimed their interisland waters as their archipelagic waters. Three-mile sovereignty, traditional in European maritime law, is now claimed by less than half the number of countries that claimed it thirty years ago—twenty-one as opposed to forty-five; and while the number of countries in the world has more than doubled, those claiming twelve miles or more has risen from three to a hundred and seven. Fourteen countries assert that their borders and territorial waters extend two hundred miles out to sea. By 1978, only three countries made no territorial or economic claim whatever beyond three miles . . . .⁶⁷

As human activities crept farther and deeper into the oceans, international conflicts began to grow out of legal differences where traditional sources and positivist methods of international law failed to tame this “creeping jurisdiction.”⁶⁸ Indeed, the prevailing positivist view of international law actually encouraged coastal States’ increasingly bold claims by giving the imprimatur of legality to the most strongly held, even outright provocative, positions.⁶⁹ The ICJ in particular pronounced views during this period on customary international law and the law applicable inter partes that emphasized rights acquired and lost by prescription. Without a comprehensive law of the sea to work from, the Court had only the manifest consent of the coastal States before it to consider as sources and subjects of the law. To put it another way, individual States had considerable and increasingly inequitable latitude to establish their rights vis-à-vis both other parties to a dispute and, by necessary implication, erga omnes the rest of the oceans and all other States. While in the abstract the manifest intentions of States may be straightforward markers for identifying applicable positive law, this individualized and relativist approach proved incapable of sustaining itself absent a broader and deeper agreement on the oceans as a whole.⁷⁰

The ICJ’s 1951 Fisheries Case (United Kingdom v. Norway)⁷¹ set the course for emphasizing States’ unilateralist practices and claims as determinative of the law applicable inter se. The case arose from Norway’s seizure of British trawlers “equipped with improved and powerful gear” operating in parts of the fish-rich banks of the North Sea (fjords, bays, islets, and reefs along the jagged Norwegian coast known as the “skjærgård”) to which Norway had claimed exclusive fishing rights in 1935.⁷² Norway justified its claims on the basis of straight baselines longer than ten miles, an approach that would allow it to claim a convex rather than concave exclusive fishing jurisdiction for certain openings to the sea wider than ten miles. The United Kingdom maintained, by contrast, that ten-mile baselines were a “general principle” of international law.⁷³ While the majority opinion recognized that “the delimitation of sea areas has always an international aspect” and “cannot be dependent merely upon the will of the coastal State,”⁷⁴ it upheld the unilateral Norwegian claim.⁷⁵ The Court did so on the basis of the “consolidation” of Norway’s longstanding “historic” assertion of exclusive fishing rights in this area off its coast as well as the lack of persistent objections to this practice by other fishing nations.⁷⁶

This might not be so remarkable had the reliance on historic claims been limited to the otherwise vexing skjærgård. The ICJ’s judgment in the 1969 North Sea Continental Shelf Cases (West Germany v. Denmark; West Germany v. Netherlands) went further, however, to find customary law in the ambiguous, incomplete, and controversial 1958 Geneva Conventions and to accord definitive weight to the practice of just a small cadre of coastal States in doing so.⁷⁷ These Conventions—concerning the Continental Shelf, the Territorial Sea and Contiguous Zone, the High Seas, and Fisheries and Conservation of the Living Resources of the High Seas—were drafted by the International Law Commission (ILC)⁷⁸ and adopted by a vote in the first United Nations Conference on the Law of the Sea (UNCLOS I).⁷⁹ However, UNCLOS I failed to reach general agreement “upon a specified breadth for a territorial sea or an unambiguous definition of a continental shelf.”⁸⁰ UNCLOS I also failed—by a wide margin—to attract a majority of States to become party to the agreements, which itself called into serious question their legal efficacy.⁸¹ Two years later, the Second United Nations Conference on the Law of the Sea (UNCLOS II) also failed—by one vote—to adopt an agreement fixing the breadth of the territorial sea or the extent of offshore fishing rights.⁸²

Article 1 of the 1958 Geneva Convention on the Continental Shelf provided the ambiguous and problematic “exploitability” definition for the legal continental shelf.⁸³ Article 2 provided that States had exclusive sovereign rights to the natural resources of their continental shelfs.⁸⁴ This Convention defined the continental shelf as extending: “to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas . . . .”⁸⁵ This test of exploitability was the most problematic. It potentially allowed developed coastal States to expand their sovereignty as far as their technological capabilities and economic demands would allow.

This exploitability criterion, and the inequitable advantages it would endow to the technologically advanced, aroused great consternation at the time, particularly among inland, developing, and newly independent States. Like the doctrine of res nullius, which had earlier been used to justify colonial claims in Africa and Asia,⁸⁶ Ambassador Arvid Pardo of Malta was worried that ‘exploitability’ would set off an unjust land and resources grab that could potentially claim the entire seabed.⁸⁷ It was discomfort with these implications—Malta, after all, had achieved independence only three years earlier—that led Pardo to make his historic 1967 General Assembly appeal to convene a new conference on the law of the sea.⁸⁸ Pardo was of the view that the world would soon experience serious shortages of metal ores and that the continental margin and deep seabed held nearly limitless mineral resources that would soon be technologically and economically within reach.⁸⁹

Pardo’s speech endorsed what would become the central substantive and procedural elements of UNCLOS. Pardo’s first concern was that a “clear definition” for the outer limits of the continental shelf should be formulated to supplant exploitability.⁹⁰ This would necessarily set off the deep seabed, as “common heritage of mankind,” from the possibility of national claims or appropriation.⁹¹ Pardo also proposed that this deep seabed area be managed by an “international agency” to oversee exploitation of mineral resources, marine scientific research, and damage to the seabed from, inter alia, nuclear waste and pollution.⁹² Finally, Pardo realized that “the concurrence of all [was] essential” to effectuate these sweeping rules for ocean space and so he recommended that a special and “widely representative” committee take up the work of preparing for a new law of the sea conference.⁹³

Pardo’s speech found wide support and the General Assembly soon passed a resolution without any dissenting votes on the “[e]xamination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind.”⁹⁴ The General Assembly also established an ad hoc, and later permanent, “Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction.”⁹⁵ This was followed in 1970 by the seminal General Assembly Resolution 2749 “Declaration of Principles,” passed without any dissenting votes, “[s]olemnly declar[ing]” that the seabed and its resources “are the common heritage of mankind” and that the exploration and exploitation of resources in this area “shall be carried out for the benefit of mankind as a whole . . . .”⁹⁶ The work and structure of this seabed committee, which would take a comprehensive and consensus-based approach to the subject,⁹⁷ together with the reservation of a common heritage, would be carried into UNCLOS.

Despite these developments in the General Assembly, as well as continuing conflicts between major maritime nations over the extent of offshore property and resource rights, the ICJ in North Sea Continental Shelf Cases viewed Article 1 of the 1958 Continental Shelf Convention as settled customary law and continued to stress the “inherent right” of a coastal State to unilaterally define and claim its rights as against the world in an offshore continental shelf.⁹⁸ At first glance, the Court seems to have disavowed mere exploitability as determinative by stressing that the legal continental shelf was the “natural prolongation” of a State’s landmass under the sea.⁹⁹ This might have suggested that the legal continental shelf must be limited by the actual geology and geomorphology of a coastal State’s landmass.¹⁰⁰ A careful examination of the Court’s positivist reasoning reveals, however, that it would not have intervened against claims extending well beyond the “natural prolongation” so long as one coastal State’s claim did not directly overlap with any other States’ claims. As the Court put it:

It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right . . . without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries.¹⁰¹

By this logic, coastal States could stake their own continental shelf claims and would only have to justify them when intruding on competing claims by opposite or adjacent coastal States. In other words, States without a directly overlapping claim would have no standing to challenge an aggressive jurisdictional intrusion into international waters. Here judicial settlement of boundary disputes also faces hard legal limits as the binding force—the res judicata—of a tribunal’s judgment is restricted to the parties consenting to jurisdiction before it.¹⁰²

Even had the Court announced a generally binding rule, it may have been overrun by a concert of aggressive coastal States’ claims supported by the Court’s own specially affected States doctrine. Gerry Simpson saw this doctrine as allowing particular States to have unequal influence in international lawmaking.¹⁰³ Deeming coastal States “specially affected because they were the only States who could claim an interest in the continental shelf, the Court in North Sea Continental Shelf Cases ratified a decisive inequity in international lawmaking since it viewed landlocked States as having “no interest” in the delineation of the continental shelf.¹⁰⁴

While formal jurisprudence focused on the positive acts of a few special States, the preparatory work for UNCLOS III continued with the interested participation of coastal, landlocked, developed, and developing countries alike.¹⁰⁵ Yet the ICJ’s 1974 Fisheries Jurisdiction (United Kingdom v. Iceland; West Germany v. Iceland) judgments,¹⁰⁶ which extended to fisheries a similar reliance on claims by certain specially affected fishing nations to establish the generally applicable law from their existing inter se treaties and practices. Following the lead of the Truman Proclamations in 1948, Iceland asserted exclusive fishing and regulatory rights to “Continental Shelf Fisheries” on the basis of a need to protect its own offshore fishing from increasingly sophisticated distant-water fleets.¹⁰⁷ In 1971, Iceland claimed exclusive fishing rights out to fifty miles,¹⁰⁸ which would cut out British and German fishermen from grounds they had fished for centuries and considered part of the high seas.¹⁰⁹ These competing claims soon led to a forceful escalation (the so-called “Cod Wars”), with Iceland seizing British fishing vessels and Royal Navy gunboats clashing with Icelandic patrols.¹¹⁰ The United Kingdom and West Germany soon asked the ICJ to intervene.¹¹¹

The Fisheries Jurisdiction judgments began by acknowledging that the preparatory work for UNCLOS III represented the “manifest desire on the part of all States to proceed to the codification of [the law of the sea] on a universal basis,”¹¹² but the Court insisted that this had no bearing on extant positive law.¹¹³ The Court ultimately held that Iceland’s unilateral extension of exclusive fisheries jurisdiction was “not opposable” to the United Kingdom or West Germany and that the parties had an obligation to undertake “good faith” negotiations to reach an “equitable” solution.¹¹⁴ These negotiations were to be guided by “preferential rights” for Iceland to regulate offshore fishing as well as the “historic title” of West Germany and the United Kingdom due to their longstanding fishing in the disputed area.¹¹⁵ Here again, the Court in effect established a general approach to dispute settlement by reference to the “kaleidoscopic” claims of particular States as against each other only.¹¹⁶

The positivist logic of these cases elevated the conflict among nations as they were encouraged to assert themselves and challenge each other (sometimes backed by force) to maintain prescriptive claims.¹¹⁷ It also emboldened unilateralist national regulations to address growing concerns about marine pollution, fisheries, and scarce resources.¹¹⁸ These concerns took on an added dimension as smaller, newly independent, and developing countries followed Pardo’s and Malta’s lead in insisting on a fair say for ocean space.¹¹⁹ Without a new agreement, the status quo reliance on individual and inter partes claims, enforceable against the world, had failed to really ensure anybody’s interests in the oceans, which was to the detriment of order for all.¹²⁰ Already, however, a new law of the sea conference—UNCLOS III—was well underway.
{pagebreak}

III. The Development of UNCLOS as International Law Erga Omnes

UNCLOS was a bold initiative of political will, constituting a comprehensive legal order for the oceans. It grew out of new human demands and capacities to use the seas and their scarce resources, and from the inability of traditional methods of creating and interpreting international law to really settle on an enduring system of property rules for ocean space. It was a sweeping bargain struck among States with diverse politics, economic demands, and geographies. Critically, it also relied on consensus lawmaking backed by binding dispute settlement, while introducing new subjects, objects, and actors to international law.¹²¹ The expectations and stakes were high enough that, it was thought, the international order itself would be at risk should the effort fail.¹²²

A. UNCLOS as a Grand Bargain

William Wertenbaker, again reporting from the Conference, brilliantly synopsized the twelve-year negotiations for UNCLOS III:

[I]t was a debate over resources, a conference on property and ownership. It might, more informatively, have been titled the United Nations Conference on the Uses and Ownership of the Ocean and Its Resources. It was a conference on food, on oil, on energy, on minerals, on preservation of the environment, on freedom of navigation. It was a forum to right the wrongs done to the developing countries, and they brought to its early years the rhetoric of what had become known as the New International Economic Order and of the North-South dialogue. Along the way, it was a kind of constitutional convention for a world administration for the seabed. It devised new ways of conducting, and making decisions at, international gatherings, and became a model for other large assemblages of countries seeking to deal with complex problems. Its aim was to bring order and law where none existed or where customs were no longer respected and countries had begun to squabble. It dealt with such traditional and relatively straightforward matters as piracy, smuggling, and freedom of navigation on the high seas, on which there was little disagreement; and with hotly disputed ones, like the demarcation between the high seas and national waters, free passage through straits and through the waters of archipelagoes, pollution from ships passing a country’s shores, and custody over resources, including food supplies and energy. The list of issues before the delegates was stupendous, and the final statements resolving them will ultimately constitute, in effect, the largest body of international law ever to be codified. The major problems, on which the delegates had to agree, numbered over a hundred, but any number of lesser issues, from the preservation of whales to the custody of antiquities, were also resolved, though they would not have halted the conference if they had not been. When this conference began work, experts predicted imminent failure; there were so many issues and so many delegates that the demands were, as one political scientist wrote eloquently, “quite beyond the competence of human beings to manage.” Another argued persuasively that the expectations of so many delegates on such a big agenda insured that the conference would fail. But instead, in the end, the number of delegates and the number of issues appeared to form a critical mass that overcame disagreement. Countries have never welcomed restraints on their freedoms, but the conference made steady, if intermittent, progress on a mountain of laws that the countries themselves would be subject to, including provisions to insure their compliance.¹²³

Why did UNCLOS III result in an agreement, especially when prior efforts fell short?¹²⁴ Wertenbaker suggests here that the agenda’s very ambitiousness gave the negotiations their own momentum. Quite simply, States individually had too much to lose to give up and too much to gain by reaching agreement together.

This “critical mass” was a natural outgrowth of the design of the Conference: negotiators contemplated a comprehensive package deal and proceeded by consensus under the auspices of the General Assembly.¹²⁵ The UNCLOS preamble is explicit that the Convention was: “Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea,” and “that the problems of ocean space are closely interrelated and need to be considered as a whole.”¹²⁶ This grand bargain was underwritten by a balance of generous, yet circumscribed, coastal State jurisdictions with a robust commons beyond; it was composed of freedoms in the water column and a res publica regime for the seabed and its mineral resources.¹²⁷ While settling the “creeping” and incongruous coastal-State claims was, as discussed in Part II, a primary reason the major maritime countries went to UNCLOS III, Pardo’s appeal for the seabed struck a chord with developing, newly independent, and land-locked and “Geographically Disadvantaged” countries.¹²⁸ Negotiations over this grand bargain initially appeared to be quite confused because, rather than following the prevalent ideological coalitions of the Cold War, they tended to proceed along geographic and economic affinities. However, over the long course of the Conference, this tendency actually helped depoliticize the debate and enabled agreement by the end.¹²⁹

The Convention reflected this grand bargain and careful balance of rights, interests, and responsibilities between coastal State jurisdictions and the areas beyond.¹³⁰ The rights coastal States enjoy in any continental shelf extending beyond their Exclusive Economic Zones (EEZs) are characteristically balanced with obligations to share through the ISA a portion of the revenues derived from the exploitation of mineral and non-living resources in their continental shelfs.¹³¹ Extended coastal State resource rights in the continental shelf were also made contingent on new revenue-sharing obligations to the rest of the international community.¹³²

To make this part of the bargain work, States did away with the problematic 1958 Geneva Continental Shelf Convention’s exploitability definition and relied—as the ICJ suggested (but did not insist on as a general rule) in Continental Shelf Cases—on the linkage of the legal continental shelf to the “natural prolongation” of coastal State territorial landmasses.¹³³ Given the centrality of geography in depoliticizing the negotiations, it is of little surprise that States turned to putatively objective geoscientific and technical criteria, administrated by scientists named to the Commission on the Limits of the Continental Shelf (CLCS), in delineating the continental shelf boundary between coastal State jurisdictions and the Area beyond.¹³⁴

A similar bargained balance was struck between coastal State jurisdictions, the free high seas, and the seabed Area. Accordingly, the reciprocity between the high seas and EEZ regimes is reinforced by provisions in UNCLOS, which provide that all States are to give “due regard” for the rights, jurisdictions, and freedoms of each other.¹³⁵ Just as importantly, high seas freedoms must be exercised “with due regard” for the Part XI regime with respect to activities in the Area.¹³⁶ The extended continental shelf regime is similarly not to affect the status of the superjacent waters or to infringe or interfere with other States’ freedoms of navigation and marine scientific research.¹³⁷ The Area and its res publica status is also not to affect the outer limit of coastal State jurisdictions or the legal status of the superjacent high seas.¹³⁸ The enduring viability of these balances is taken up in Parts IV & V.

B. UNCLOS and the Necessity of Consensus for Legal Property Rules

As Pardo suggested in 1967, translating this bargain into an effective legal instrument would require consensus.¹³⁹ Consensus can be understood in two senses: as a negotiation procedure and as an instrument of lawmaking. During the Conference negotiations, “consensus was a way of making moderately unpalatable arrangements easier to swallow. It was a sort of tacit approval granted by waiving disagreement.”¹⁴⁰ It also provided veto-threat leverage to every State, tending to limit their demands to those that could be balanced by others’ proposals elsewhere in the package deal.¹⁴¹ In fact, the only votes held during the Conference came at the very end of eight years of negotiations.¹⁴² This consensus procedure marked a deliberate break from UNCLOS I and II, which had relied on delegation to the ILC and supermajority voting. The resulting Geneva Conventions came under attack from all sides: not even a majority of States became parties to them and some of the most important provisions—especially on the continental shelf and the breadth of the territorial sea—engendered debilitating defections from industrialized, developing, and newly independent countries alike.¹⁴³

As an instrument of lawmaking, the UNCLOS consensus might have suffered the weakness of the numerous General Assembly resolutions that are passed by consensus each year but which have no real legal force. As Secretary-General Kofi Annan has described, the weak form of consensus exhibited in many of these resolutions has no real normative force and “simply reflect[s] the lowest common denominator of widely different opinions.”¹⁴⁴ Instead, UNCLOS was backed by a grand legally binding bargain that allowed States together to transcend the zero-sum prisoner’s dilemma to reach a strong consensus “reflect[ing] a genuine unity of purpose . . . .”¹⁴⁵

This brand of strong consensus would become instrumental in inscribing UNCLOS as effective international law erga omnes for ocean space. As Goldsmith and Posner suggest in their rationalist account, The Limits of International Law, the pre-UNCLOS approaches to the “law” of the sea conflated custom with coincidences of individual State interest, and treaties with mere convenient signaling and coordination.¹⁴⁶ Goldsmith and Posner argue that this unilateralist international law remains vulnerable to the prisoner’s dilemma temptation of defection for short-term gains.¹⁴⁷ For claims of exclusive offshore jurisdictions, they paint the picture as one of regular free-riding and conflict, with cooperation occurring only in the rare case where particular States interact repeatedly and where violations are easy to identify.¹⁴⁸ This certainly accords with the account provided in Part II.

But whereas Goldsmith and Posner look to pre-UNCLOS practice and find little binding law, they also ignore UNCLOS entirely and the possibility that its consensus, backed by broad political will and binding dispute settlement, provides for real erga omnes international law.¹⁴⁹ Property rules are different in kind than the private inter se rights and obligations established by contract or custom. They must be held erga omnes (or in rem), against and respected by all, or else they might be limited or extinguished.¹⁵⁰ An individual seeking to purchase a parcel of land, for example, may do so by private contract with the prior owner, but the new owner will have to publicly record the transaction and fence off the property to defeat others’ prescriptive, adverse, or bona fide claims. Similarly, a nation’s claim to sovereignty and international personality may be born from a bilateral compact or decolonization, but it will not be secure until respected by neighboring States, foreign interests, and, of course, the cartographers.

Property rules in ocean space are particularly difficult to reconcile with an international law modeled only from unilateral acts and inter se relationships. Individual littoral States have an immediate stake in how a shared border is delimited, but everyone else also may have an interest, albeit more diffuse, in the delimitation. States’ distant water flag vessels, for example, would need to know whose jurisdiction and under whose laws they are operating. There is also a generally shared interest in the outer limits of coastal States’ jurisdictions, because beyond that, the ocean commons necessarily begins.

UNCLOS attempted to establish true erga omnes property rules for ocean space in which the bargained spatial delineations would be agreed to and respected by concomitant strong consensus.¹⁵¹ This structure allowed the Conference to not only resolve problems lingering from UNCLOS I & II, but to settle on rules for issues not even considered during previous negotiations. The most important provisions of UNCLOS provide: a twelve-mile territorial sea¹⁵² (even for all “rocks” above water at high tide¹⁵³) and twenty-four-mile contiguous zone¹⁵⁴ coupled with the right of innocent passage for others;¹⁵⁵ a 200-mile offshore EEZ;¹⁵⁶ marine scientific research freedoms even in others’ EEZs;¹⁵⁷ access to and from the sea for landlocked States;¹⁵⁸ natural resource rights in the extended continental shelf,¹⁵⁹ and the corresponding obligation of revenue-sharing;¹⁶⁰ the reservation of the “common heritage” seabed Area and the establishment of the ISA for its mineral resources;¹⁶¹ and expansive freedoms in the high seas.¹⁶² States insured themselves against unilateral abrogation of these rules by a general prohibition on reservations,¹⁶³ by giving their advance consent to binding judicial or arbitral settlement for many types of disputes,¹⁶⁴ and by prohibiting incompatible inter se agreements.¹⁶⁵

Negotiators were not able to resolve every issue of ocean space, leaving some of the more difficult issues vague or unresolved.¹⁶⁶ Others were left to be integrated or implemented by future developments.¹⁶⁷ The biggest defect for the original UNCLOS, of course, came from opposition over Part XI by the United States and other industrialized countries. These countries attempted to establish a competing mining regime that would be more decentralized and impose fewer production quotas, subsidies, and technology transfers.¹⁶⁸ But potential conflicts between the competing arrangements also frustrated a secure property rights framework in which mining ventures could be undertaken and thereby necessitated the 1994 ISA Implementing Agreement.¹⁶⁹ While this Agreement was not adopted according to the consensus requirement for any subsequent protocol conferences,¹⁷⁰ it has the critical effect of adding the signature of the United States—and accession by the likes of the United Kingdom, France, Germany, and Russia—to the overall UNCLOS regime. The Agreement abrogated many of the operating provisions most problematic for industrialized countries, while retaining the basic status of res publica for the deep seabed and its mineral resources and preserving the basic balance struck by the Convention.

Since its adoption, UNCLOS has been host to regular organic legislative growth by strong consensus. Although some States have stated objections to substantive debate or decision-making at the annual States Parties meeting (SPLOS),¹⁷¹ they agreed by consensus at their 2001 meeting to effectively extend for an additional five years the time allowed for coastal States to prepare and make their extended continental shelf submissions to the CLCS.¹⁷² States Parties took this action out of necessity because the CLCS had not adopted the Scientific and Technical Guidelines on which submissions would be reviewed until May 1999, and this late date made the original 2004 deadline unreasonable. Also, developing and small-island States in particular¹⁷³ expressed concern over the technical and scientific difficulties they faced in meeting the original deadline.¹⁷⁴ These issues are taken up extensively in Part IV.

Consensus has also been carried forward by the General Assembly’s annual law of the sea resolutions.¹⁷⁵ One substantive result was the consensus prohibition on large-scale pelagic driftnet fishing in the high seas.¹⁷⁶ This practice became prevalent in the Pacific Ocean and involves suspending nets that can be several miles long in waters to catch whatever swims by (in the hope of netting tuna, but too often getting dolphins and other bycatch). This ban evolved over a series of General Assembly resolutions, adopted by consensus, that made specific reference to UNCLOS.¹⁷⁷ Despite the general provision in UNCLOS for “freedom” of fishing, the General Assembly recognized that driftnet fishing “can be a highly indiscriminate and wasteful fishing method that is widely considered to threaten the effective conservation of living marine resources . . . .”¹⁷⁸ The resolutions proceeded to call for increased cooperation, study, reporting, and a phased-in moratorium on the practice.¹⁷⁹ Critically, these resolutions were backed by the commitment of the United States to impose possible import sanctions on countries that would not agree to restrict indiscriminate driftnet fishing that threatened the sustainability of Pacific high seas fisheries,¹⁸⁰ in which all States have rights and interests under UNCLOS.¹⁸¹ A similar progression may now be occurring with respect to unregulated deep seas bottom trawl fishing—a development that is taken up extensively in Part V.C.¹⁸²

Thus, UNCLOS represents both new directions for the bargained law of the sea and a necessary consensus instrument for constituting property rules for ocean space. With age and practice it has so far accommodated reforms and legal developments by consensus. The rest of this paper takes up some of the important challenges to UNCLOS that are only now ripening.
{pagebreak}

IV. Meeting the Legal and Implementation Challenges of Article 76: SIDS as Ridge Laboratories or Canaries in the Continental Shelf Coal Mine?

The offshore resources of the seabed and subsoil have been used and exploited by humans for thousands of years.¹⁸³ These resources have been subject to coastal States’ various claims for nearly as long. Since Truman’s Proclamation, the ‘continental shelf’ has come to mark the line separating coastal States’ exclusive jurisdictions from the commons beyond. But defining the legal continental shelf has been more problematic. Consternation over the vague and permissive 1958 Geneva Convention, as well as greater human understandings of ocean geology, processes, and resources, instigated a new regime in UNCLOS.¹⁸⁴ UNCLOS reached consensus over the continental shelf by balancing extended coastal margins, limited by definite legalized scientific and technical formulae, with a robust commons beyond.¹⁸⁵

But implementation of Article 76 is off track. The first continental shelf claim submission deadline faced by the 129 early-adopter States Parties is May 13, 2009.¹⁸⁶ But, out of the 60 or more countries¹⁸⁷ that could potentially claim an extended continental shelf,¹⁸⁸ only seven submissions (including one joint submission by France, Ireland, Spain, and the United Kingdom) have been made to the CLCS so far.¹⁸⁹ Only one of these—by Brazil—is from G77 developing country and no small island developing State (SIDS) has yet made a submission. And the full Article 76 mechanism has yet to be tested by any State actually depositing its final and binding delineation with the Secretary-General, or by exercising its jurisdiction in a claimed extended continental shelf area.

Maritime boundaries have been a persistent source of conflict. Given that approximately twenty-five percent of the seabed is potentially claimable as continental shelf, it is reasonable to expect additional difficulties as Article 76 is implemented.¹⁹⁰ In replacing exploitability and the quasi-legal system of unilateralist and inter se claims, Article 76 brings its own challenges for both international law and science. If, for example, a State misses the 2009 deadline, does it prejudice any claim to an extended continental shelf in favor of the more general interest in the seabed “common heritage”? What if the scientists who compose the CLCS make a legal interpretation of Article 76 that prejudices a coastal State’s asserted rights and obligations under UNCLOS? And, if in the meantime an oil well is prospected in a marginal area that may or may not be claimed as legal shelf, would drilling fall under UNCLOS Part VI or Part XI?

Uncertainty over these and other questions by themselves may not engender the same level of concern as did ‘exploitability’ from the 1958 Geneva Convention.¹⁹¹ Nevertheless, conflict over erga omnes rights at any delineation line necessarily affects every State and might thereby fragment and undermine the whole continental shelf outer limit regime. This Part analyzes the most likely candidates for implementation difficulties and legal conflict over Article 76: SIDS, who face both the legally and politically controversial “ridge issues”¹⁹² as well as a relative lack of capacity to satisfy them. What is needed is directed attention by consensus to the special situation faced by SIDS with respect to Article 76, and a move to a more active role by DOALOS and the CLCS to achieve a viable delineation process.

A. “Implementing” Article 76: The Definition, Delineation, and Difficulties of the Legal Continental Shelf Under UNCLOS

In a masterfully rich package, Article 76 codifies a legal continental shelf definition relying on scientific and technical determinations of distance, geomorphology, and geology.¹⁹³ It presents a positive yet circumscribed definition and a scientific-technical process with the CLCS to “implement”¹⁹⁴ the “correct”¹⁹⁵ delineation accordingly. (Delimitation between opposite or adjacent States is instead left to “equitable” “agreement on the basis of international law.”¹⁹⁶) Yet science has both costs and limits when it comes to establishing an effective legal order.

1. Definition, Rights, and Obligations in the UNCLOS Continental Shelf

Article 76 weaves a dense and difficult web of law, science, and political compromise. Article 76 first provides that the legal continental shelf is comprised of the “seabed and subsoil” that “extend . . . throughout the natural prolongation” of a coastal State’s “land territory.”¹⁹⁷ This differentiates the shelf in basic terms from the superjacent waters and from the deep ocean floor beyond. It also codifies the “natural prolongation” definition from the 1969 Continental Shelf Cases. “Natural prolongation” is deemed to extend either to a default 200-mile legal continental shelf, or beyond this to the “outer edge of the continental margin.”¹⁹⁸ Article 76(3) defines “continental margin” as comprising the “submerged prolongation of the land mass of the coastal State” (while excluding “the deep ocean floor with its oceanic ridges”). “Submerged prolongation of the land mass” is thus narrower than “natural prolongation of its land territory,” since the latter includes this 200-mile legal default regardless of the geology or geomorphology of the physical land mass itself.¹⁹⁹ Article 76(4) provides the methods for calculating the critical “outer edge of the continental margin,” which include two alternate geomorphologic and geologic formulae and three possible maximum limits. The “Irish” formula²⁰⁰ places the outer limit out to where often hydrocarbon-rich sedimentary rocks have settled down the continental margin in detectable thicknesses. The “Hedberg” formula²⁰¹ calculates the outer limit at sixty miles from the “foot of the continental slope,” which itself is an estimate of where the land mass begins its rise from the deep ocean floor.²⁰² By either formula, the absolute maximum width for the extended continental shelf is 350 miles from shore, or, for non-“ridge” claims, out to 100 miles beyond the 2,500 meter isobath.²⁰³

Coastal States enjoy “exclusive,” “sovereign” erga omnes rights to explore and exploit “natural resources” or to “drill” in the extended continental shelf.²⁰⁴ This is an economic and regulatory jurisdiction. But these extended rights are characteristically balanced by negotiated concessions. Rights in an extended continental shelf do not extend to, and may not prejudice, the superjacent high seas.²⁰⁵ Extended continental shelf mining operations are subject to equitable revenue-sharing obligations through the ISA.²⁰⁶ And the extended continental shelf is circumscribed by a definite “outer limit” which, if extending beyond the default 200 miles, is to be delineated in good faith according to the legal-scientific process established by Article 76.²⁰⁷

2. The Scientific and Legal Challenges of the Delineation Process

The three stages of this delineation process—submission preparation, CLCS review, and delineation deposit—operate like inverted notice-comment-rulemaking and each stage poses distinct scientific and legal challenges. Perhaps the most poignant difficulty for States’ good faith preparation of submissions comes from the UNCLOS deadline for doing so.²⁰⁸ The original submission deadline was in 2004, but by consensus SPLOS extended this to May 13, 2009 for States who were Parties to UNCLOS by that date in 1999 when the CLCS published its Scientific and Technical Guidelines.²⁰⁹ States acceding to UNCLOS thereafter continue to have a due date ten years after accession.²¹⁰ Although 2009 is still a few years away, continental shelf submissions take years of work and great expense and expertise to prepare and so the warning signs for 2009 are starting to become apparent now.²¹¹

A Norwegian NGO, GRID-Arendal, that works with DOALOS and the United Nations Environment Programme (UNEP) to provide services to developing countries, has identified the different phases involved throughout the Article 76 process.²¹² The preparatory “scanning” and “desktop” phases involve the coastal State building familiarity with Article 76 and identifying, accessing, and analyzing relevant, available geoscientific data to ascertain whether the country may have a claim worth pursuing at all.²¹³ Every State that could have an extended continental shelf claim would seem to be under a good faith obligation to at least undertake a desktop study.²¹⁴

Given the training and expertise required, even a very small desktop study is likely to be quite expensive for a small country. But if extensive data is already available, a well done desktop study can supplant much of the work of the next two phases—“data acquisition” and “data interpretation”—which are where the real heavy (and expensive) science plays its part. Measuring depth and slope will usually involve a combination of multibeam sonar and satellite sea surface altimetry.²¹⁵ Sediment thickness (the other main criterion for determining the continental shelf’s legal outer limits) can be measured by a variety of means, including seismic reflection and refraction (using near-surface artificial explosions to generate a wave whose properties are recorded as it impacts with the seabed),²¹⁶ or by coring and sampling the seabed.²¹⁷ Other techniques could include determinations of crustal type (continental versus oceanic²¹⁸) by means of satellite and aerial gravity and magnetic data-gathering.²¹⁹

When the data acquisition and interpretation phases are completed, a submission can finally be prepared for CLCS review. The CLCS is to “consider,” “make recommendations,” and provide requested scientific and technical “advice” regarding coastal States’ continental shelf submissions on the basis of its Scientific and Technical Guidelines and Rules of Procedure.²²⁰ If the State disagrees with the recommendations, it “shall” make a revised submission to the CLCS for reconsideration.²²¹ This process could repeat any number of times until the State deposits its delineation.²²²

The twenty-one member CLCS has a unique role in international law. It has been characterized variously as a “canary in the mineshaft,” “policeman,” “watchdog,”²²³ and “legitimator” of would-be extended continental shelf claims.²²⁴ It is not an adversarial or adjudicatory body with competence to prescribe a binding bilateral boundary.²²⁵ Nor is it like other legal “non-compliance” mechanisms that are engaged in a corrective or punitive manner when a State has not satisfied its international commitments.²²⁶ The CLCS is a science-based body composed exclusively of “experts in the field of geology, geophysics or hydrography” from an “equitable geographical representation.”²²⁷ (It is telling, in fact, that none of the CLCS members have any formal legal training.²²⁸) Although the turn to science was intended to depoliticize delineation, the CLCS process is still, in the words of two respected practitioners (one lawyer, one scientist), “dependent on the knowledge, the experience, and occasionally the bias of the scientist involved.”²²⁹

It is difficult at this stage to assess as a general matter whether scientific-administrative bodies can be counted on to effectively oversee unilateral property claims in an international legal order. So far only seven submissions have been made and no State has yet deposited its “final and binding” extended continental shelf delineation with the Secretary-General. There is room for optimism, however, about the envisaged scientific back-and-forth between the submitting State and the CLCS as Russia is in the midst of substantially revising its 2001 submission on the basis of CLCS recommendations and Brazil has submitted supplementary information regarding some of its more problematic fixed reference points.²³⁰

Yet the CLCS has taken steps of its own to obscure how it formulates its recommendations. Sessions of the CLCS are generally closed to all but the State whose submission is being considered.²³¹ The CLCS considers itself bound by States’ requests to keep their submissions information confidential,²³² which has the effect also of stripping any details of the CLCS’s deliberations from the public executive summaries of its recommendations.²³³ This confidentiality policy seems squarely at odds with the obligation that States publish and disseminate knowledge resulting from marine scientific research.²³⁴ The CLCS also refuses to consider written interventions by States that are not opposite from or adjacent to the submitting State.²³⁵ These policies only make it more difficult for other States to contribute to and learn from others’ submissions about how the best science should be brought to bear in support of different types of claims.

Without more practice and transparency, it is similarly difficult to assess the efficacy of the CLCS in interpreting and applying international law. Despite its turn to science, Article 76 is not free from legal ambiguities that the CLCS will have to confront in making its recommendations.²³⁶ Yet it remains to be seen what kind of margin of appreciation States will tolerate by this scientific-technical body—especially where the Commission’s interpretation of legal provisions might prejudice what a coastal State views as part of its “inherent” rights or what others may view as “common heritage.” This is likely to become an issue in weighing sometimes conflicting geological versus geomorphological evidence for preparing and evaluating foot-of-slope calculations and ridge claims.²³⁷

The final component of the Article 76 process involves a State’s “final and binding” continental shelf outer limit delineation done “on the basis” of the CLCS’s recommendations.²³⁸ This is where erga omnes rights claimed under Article 76 will really be tested. No State has yet deposited its delineation with the Secretary-General, so it is again impossible at this point to assess the success of Article 76 holistically or in any individual case. It is foreseeable, however, that conflict could arise where a coastal State and its opposite, adjacent, and distant-water colleagues disagree over whether the delineation is appropriately “bas[ed]” on the CLCS recommendations and thus undoubtedly “final and binding.”²³⁹ The self-imposed secrecy under which the CLCS operates is further likely to muddle these assessments. Further, given the late date and sophisticated science involved, the 2009 submissions deadline could be missed by any number of developing and small island States.

The test for Article 76 would then be whether and how it accommodates agreement in the face of implementation difficulties and legal disputes. Consensus decision-making is one approach already taken: States Parties agreed to allow an additional five years for many coastal States to prepare their CLCS submissions.²⁴⁰ Another possibility could be dispute settlement, though any assertion of binding jurisdiction would likely meet resistance.²⁴¹ A third approach might be for the ISA or any other State to invoke breach and international responsibility for any undue appropriation erga omnes of the res publica Area.²⁴² The rest of this Part is devoted to expounding on a particular set of difficulties facing SIDS and the preferability of consensus and concerted action to address these difficulties and sustain Article 76.

B. The Precarious Position of SIDS Under Article 76

Islands are like stitches in the sea; neither continent nor ocean, they mark the rifts in both. This is also why islands are likely to be at the center of Article 76 delineation problems—islands were not well represented at UNCLOS III and their tricky geologies and geomorphologies are not neatly provided for in Article 76. Yet islands may be at least as “specially affected” by ocean activities as are other maritime nations; as Ambassador Pardo put it in 1967, islands like Malta “live and breathe” by the ocean and it was this historical-social and physical reality that led his call for a new oceans’ order.²⁴³

What emerged for the continental shelf regime left many island countries in a precarious position.²⁴⁴ The basic legal issue for islands concerns the relative role for geology and geomorphology in Article 76: whether islands, because they are not in many cases geologically continental land masses, can claim an extended continental shelf at all, or whether instead Article 76 provides an extended legal shelf to any coastal State for which a continuous, geomorphologic foot-of-slope can be calculated.²⁴⁵

George Taft, of the U.S. State Department Legal Adviser’s office, has most strongly articulated what might be called the “‘restrictive geologic”‘ position.²⁴⁶ Taft emphasizes that Article 76(1) & (3) capture the “fundamental aspect” of Article 76.²⁴⁷ Paragraph (3) in particular is taken as expressing the genetic geologic distinction between oceanic and continental land masses;²⁴⁸ this paragraph provides on the one hand that the continental margin “consists . . . of the shelf, the slope and the rise,” while on the other that “it does not include the deep ocean floor with its oceanic ridges.”²⁴⁹ Differentiating ‘oceanic’ ridges from ‘continental’ shelf-slope-rise reflects for Taft the “generally understood meaning, both legally and scientifically,” of the continental shelf.²⁵⁰ Further, “an oceanic ridge of the deep ocean floor does not become something else when it merely crosses the 350 nautical mile limit . . . [and] does not change its character, as a matter of law or geology, because it is linked to land.”²⁵¹ He would thus exclude all “oceanic islands”²⁵² on, for example, the mid-oceanic ridge system, which “is essentially oceanic and part of the deep seabed, notwithstanding its proximity to certain islands.”²⁵³ He also denies that there are ridges that are neither oceanic nor continental, or that there was any “recognition or acceptance” at the Conference of ridge claims of mixed continental-oceanic lineage.²⁵⁴ To Taft the paragraph (4) formulae and paragraph (5) maximum limits are not independent geomorphic bases for extended continental shelf claims, but rather they “refine[]” and “limit[]” the more general definition of paragraphs (1) and (3).²⁵⁵ Taft emphasizes that this interpretation will ensure “the integrity of the geographical scope of the Area.”²⁵⁶ Taft ominously warns that States who would attempt to claim non-‘continental’ ridges should expect “political backlash,” “protests,” and “public queries” before the CLCS and elsewhere.²⁵⁷

Brekke and Symonds, among others,²⁵⁸ have taken issue with Taft’s interpretation and have attempted to articulate how Article 76 accommodates ridge claims.²⁵⁹ They stress that the “continental shelf’” of Article 76 has a meaning “very different” from that used in geology.²⁶⁰ They note that Article 76(3) speaks of the continental margin in primarily geomorphic terms as “compris[ing] the submerged prolongation of the land mass of the coastal State.” This emphasis looks from the land mass seaward.²⁶¹ Brekke and Symonds also observe that, while it does exclude “oceanic ridges,” Article 76 does not make any actual reference to crustal types (crustal neutrality).²⁶² Indeed, they analyze paragraphs (3) and (6) as a “compromise” effort to distinguish among various types of offshore rises so as to best embody land masses’ geomorphologic “submerged prolongation.”²⁶³ The manifestation of this effort is paragraph (4), which provides alternate formulae applying a foot-of-slope calculation to determine the “outer limit.” Thus, any seafloor feature around which it is possible to draw a continuous foot of slope according to the paragraph (4) formulae would be eligible for an extended shelf claim, while those whose foot of slope is separated from the land mass by deep ocean floor are excluded.²⁶⁴ Geology enters the picture only secondarily when “evidence to the contrary” (such as geologic characteristics shared between the land mass and the elevated feature) yields a more reliable foot-of-slope than does the “point of maximum change in the gradient at its base;” and to distinguish between “integral” “submarine ridges,” which have a maximum “outer limit” of 350 miles, and “submarine elevations that are natural components of the continental margin,” which may benefit from the maximum limit of 100 miles beyond the 2,500 meter isobath.²⁶⁵

The CLCS Scientific and Technical Guidelines largely support Brekke and Pimentel, but also emphasize that islands will have to undertake especially rigorous geomorphologic and geologic research if they are to make a viable claim at all. The Guidelines tentatively embrace crustal neutrality and conclude that “geological crust types cannot be the sole qualifier in the classification of ridges and elevations of the sea floor into the legal categories of [Article 76(6)] . . . .”²⁶⁶ And in fact, a study produced by the Secretary-General during UNCLOS III anticipated that a variety of geologic ridge-type island countries likely had viable extended continental shelf claims, including Iceland, Fiji, the Federated States of Micronesia, and Mauritius.²⁶⁷ Yet the Guidelines demur from detailing just what qualifiers the CLCS views as most important, instead favoring examination “on a case-by-case basis.”²⁶⁸ This case-by-case approach would have to consider an array of scientific and legal factors: “[i] natural prolongation of land territory and land mass, [ii] morphology of ridges and their relation to the continental margin as defined in paragraph 4, and [iii] continuity of ridges.”²⁶⁹ To put it another way, an island country’s submission might be incomplete without evidence both of ridge morphology and of geologic relation and continuity—without certainty about how the CLCS will view either.

To add to their evidentiary and legal difficulties, island ridge claims can also be particularly expensive and difficult to undertake. Mid-oceanic ridges, which includes among developing countries the Galapagos Islands (Ecuador), Prince Edward Island (South Africa), Easter Island (Chile), and Rodriguez (Mauritius), naturally have a smooth curve to the oceanic deep ocean floor. It is thus geomorphically impossible in all but the most “exceptional circumstances” to identify a foot-of-slope according to evidence of the “point of maximum change in the gradient at its base.”²⁷⁰ This will necessitate a positive showing, paradoxically, by “evidence to the contrary” in the form of new gravity, magnetic, and bathymetric surveying as well as single beam or swath bathymetry data acquisition, all of which can be highly “arbitrary,” “inconsistent,” “inefficient,” and “expensive.”²⁷¹ For other SIDS in the Pacific and Indian oceans, the necessary task of differentiating between “oceanic ridges,” “submarine ridges,” and “submarine elevations that are natural components of the continental margin” can be similarly cumbersome. The task would most likely require the further acquisition of expensive core samples to determine whether and for how far particular seafloor elevations share the geological characteristics and origins of the coastal State land mass.²⁷²

Islands are thus subject to a confluence of the most onerous scientific and legal burdens for claiming an extended continental shelf under Article 76. Their submissions are likely to exact considerable time and some measure of imperfection, and are thus likely targets for international challenges and “protests.”²⁷³ But, given their intimate physical and social relationship to the ocean, it is highly likely that many islands countries will seriously defend the notion that they have inherent rights in an extended legal shelf. Island continental shelf claims are thus ripe candidates for discord over the entire Article 76 regime. What is to be done?

C. The Problems and Prospects for Implementing Article 76 “in Particular” for SIDS

1. Special Capacity-Building, Advice, and Assistance for SIDS and Other Developing Countries

The degrees of special legal uncertainties and particular scientific difficulties facing SIDS in meeting their obligations under Article 76 have not gone unheeded. It was primarily SIDS that instigated the extension of the original submissions deadline.²⁷⁴ The CLCS also has a mandate “to provide scientific and technical advice” that could be utilized by any coastal State preparing its submission.²⁷⁵ The General Assembly, acting on a request by States Parties, has established a voluntary Trust Fund to pay for training, technical and scientific advice, and personnel to assist “developing States, in particular the least developed countries and small island developing States” in preparing desktop studies and in planning their submissions (though not in acquiring new data).²⁷⁶ DOALOS has also organized several regional training sessions to train staff from developing countries in preparing a submission and has finished, but not yet published, a training manual for this purpose.²⁷⁷ In addition, the General Assembly has asked UNEP, via GRID-Arendal, to store and handle available data on the outer continental margin to serve, in particular, “developing countries and small island developing States” in implementing Article 76.²⁷⁸

In theory, all these efforts represent a sensible and appropriate response to the Article 76 legal, scientific, and technical challenges faced by SIDS. Remedial efforts to ease compliance and defray costs for developing countries under international treaties are not new to international law.²⁷⁹ The mechanisms adopted under UNCLOS have sought to assist SIDS in gathering available data, training, and providing avenues for further consultations and advice as requested. These efforts understandably focus on the desktop study phase because, if good data exists and if the study is done well, it can obviate much of the need for expensive subsequent data acquisition—particularly for small States that may only have to prove a handful of total data points to make a submission.

2. The Status of SIDS in Completing Submissions to the CLCS

Despite these well-intentioned affirmative efforts, there has been frustratingly little progress for SIDS in making progress under Article 76. With only two years left until the first 2009 deadline, there are clear reasons for concern about the progress in SIDS’ implementation of Article 76. No SIDS country has yet made any submission to the CLCS. While the desktop study and training Trust Fund has over one million dollars available, only one SIDS country (and two total countries) has made an application to, and received assistance from, the Fund.²⁸⁰ No country, SIDS included, has requested any scientific or technical advice from the CLCS.²⁸¹

Cost is one of the reasons progress for SIDS has been so halting. Although the Trust Fund has been established for training, advice, and desktop studies, its Terms of Reference have largely frustrated its purpose; the Trust Fund operates on a reimbursement basis, meaning that SIDS and others have to finance their training and desktop studies themselves in the hope of later being reimbursed.²⁸² Even charges incurred by SIDS in asking the CLCS for advice must go through this reimbursement process.²⁸³ Further, there is no established ‘pre-approval’ process whereby DOALOS could guarantee that some or all of a desktop study project would be reimbursed upon completion.

This situation poses obvious risks and difficulties for SIDS. Even small training programs and desktop studies can run to several hundred thousand dollars and pose a recognized hardship.²⁸⁴ They have no guarantee when appropriating or borrowing funds of later being reimbursed. By the time their desktop study is completed, the Trust Fund may be exhausted, and if it is not, the submitting State still risks that the Trust Fund will deny reimbursement.²⁸⁵

SIDS face further difficulties in looking to the CLCS for advice or guidance. The Scientific and Technical Guidelines provide only nominal guidance by stipulating that the CLCS will evaluate ridge claims “on a case-by-case basis” and according to an array of geologic and geomorphologic factors.²⁸⁶ Any further guidance or advice from the CLCS comes at a price: the time required of CLCS members giving advice must be compensated, and this advice is not binding on the full Commission.²⁸⁷ SIDS have also had little opportunity to learn from the ridge science and practices of others. The CLCS has had occasion to make recommendations only on Russia’s submission, and only a bare summary of those are available.²⁸⁸ New Zealand and Australia have also made submissions containing ridge-elements, but these are still under review. Other developed countries with likely ridge claims have not yet made any submission to the CLCS.²⁸⁹ Even if there were good models, the secrecy by which the CLCS considers submissions has contributed little to any appreciation of how to individually tailor the application of ridge science to the Article 76 legal framework.²⁹⁰

3. Facilitating Progress and Order for SIDS Under Article 76

The current course of Article 76 for SIDS is unsustainable. The uncertain legal import of the ridge provisions has been compounded by a palpable lack of progress on undertaking the required geological and geomorphological data-gathering and study. Without going so far as to suggest a revision of Article 76, and cognizant of the fact that the CLCS is not inclined to revise or to elaborate on its Scientific and Technical Guidelines,²⁹¹ there are practical steps that SIDS and others could take together to assure the orderly implementation of Article 76.

The various avenues of capacity building, advice, and assistance established specially for SIDS are well positioned to assist them in preparing a desktop study and in assessing whether any more comprehensive submission would be appropriate given the obligations under Article 76. DOALOS-sponsored training sessions and its training manual are now well established, and so the biggest holdup here is in getting the financing for desktop studies actually underway. Even if the Trust Fund will not deviate from the reimbursement approach, it is not prevented from providing some advance assurances that all or part of a properly accounted for project would be reimbursable. This could facilitate securing short-term, low interest loans or the appropriation of money from national treasuries.

If pre-approving each individual country’s Trust Fund application would be too cumbersome, expensive, or pose too many risks to the Fund and DOALOS, then the Fund could work directly with consultants or regional organizations looking to take on several individual countries’ desktop studies. Under UNEP, Grid Arendal already has a General Assembly mandate to build a continental shelf data center (a “one stop data shop”²⁹²) and to assist developing countries in preparing their submissions.²⁹³ The South Pacific Applied Geoscience Commission (SOPAC) also is looking to hire a consultant to do desktop studies for a number of the region’s countries to bring some benefits of scale to the expense of individual desktop studies.²⁹⁴ Both entities could work directly with DOALOS to package pre-approved desktop study programs for SIDS and other developing countries.

The other main avenue for accommodating SIDS in implementing Article 76 might be a States Parties decision on submissions procedure. By consensus, the States Parties have already extended the submissions deadline once before and agreed to keep the difficulties of SIDS and developing countries to meet the deadline under review.²⁹⁵ Clearly, the object should be to enable all countries with a potentially viable claim to make a submission and see it through, if appropriate, to a “final and binding” delineation. The deadline cannot be extended indefinitely as an excuse for avoiding implementation altogether, and deadlines can be useful in corralling action. One sensible alternative approach might be for States Parties to decide to accept the completion of a desktop study by SIDS by the 2009 deadline as good faith performance, and further agree to a limited additional extension, with increased international assistance and close coordination with the CLCS about just what additional data would be necessary, to finalize their submissions.²⁹⁶

Legal conflicts over Article 76 delineations may yet become an issue for UNCLOS, but the more immediate issue is avoiding conflict through competent scientific and technical implementation. If SIDS are at least making demonstrable progress towards satisfying Article 76, and if other States retain confidence that the process is proceeding reasonably and in good faith, conflicts will be minimized. Here international law has the opportunity to play a constructive, rather than adversarial, role: administrative adjustments could facilitate bringing together the necessary scientific, technical, and financial resources, while consensus decision-making could again accommodate initiatives for capacity-building, patience, and progress in meeting the Article 76 challenges faced by SIDS.
{pagebreak}

V. The Enduring Frontier: Two Problems for UNCLOS and the Seabed “Common Heritage”

Establishing an area beyond national jurisdictions served as the foil in the Conference negotiations to limited national jurisdictions. The then-recent discovery of vast stores polymetallic nodules in the seabed also expanded the terms of the law of the sea by lighting the imaginations about this potential wealth and the new conflicts it could engender. It is not too much to say that the seabed was the biggest catalyst for UNCLOS.

The seabed debate crystallized in a political bargain that reified coastal States’ generous but limited maritime boundaries while allowing that certain uses and benefits of the seabed would be administered for all States by the International Seabed Authority. What became Part XI, in turn, denies anyone legal title to any part of the seabed, acknowledges that all have an interest in it, and requires that “activities in the Area” be carried out under the authority and regulations of the ISA.²⁹⁷ This public property regime might be contrasted with the roughly res communis high seas regime of Part VII, which emphasizes freedoms of action and economic activity limited only by the “due regard” to be given to the freedoms of others.²⁹⁸

The crash of the commodities markets and the Soviet-style command-bureaucracy model in the late 1980s took much of the wind out of seabed mining and the original form of the ISA.²⁹⁹ The ISA, even in its post-1994 Implementing Agreement form, has yet to play any significant role with respect to human activity beyond national jurisdictions: it only approved the first (and so far only) plan of work for mineral exploration in 2005.³⁰⁰ But, to be sure, human interest and activity about the seabed has only expanded since the adoption of UNCLOS, as science and technology are putting new deep sea resources within reach. The spatial property rules for UNCLOS and Part XI are being called into question, both as the potential for intellectual property in genetic and biological resources shifts the focus of just what it means for any part of the seabed to be “appropriated,” and as destructive fishing practices, such as bottom trawling, that originate in the “free” high seas increasingly target the seabed. The ISA and the ITLOS Seabed Disputes Chamber would thus seem to have the competence to resolve this legal uncertainty, though it would be preferable for the sake of political and legal order to forge new negotiated consensus.

A. Disentangling Part XI: The UNCLOS Regime for the Seabed and its Resources

The “‘Area’” is the “seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”³⁰¹ To define it negatively, the Area is what is left after subtracting the EEZ, legal continental shelf, and superjacent waters.³⁰² Delineation of the Area vis-à-vis the continental shelf can be difficult enough, but it gets further confused once the layers of substantive property, equity, and regulatory rules of Part XI are then applied. This subsection sets forth these layers of imperfectly overlapping rules so as to provide a useful foundation for the rest of the analysis in this Part. It first describes the basic res publica legal regime for the Area: that it may not be privately appropriated and that “activities in the Area” must be carried out under the authority and regulations of the ISA.³⁰³ Parts IV(B) and IV(C) then call into question the continued integrity of res publica for the seabed in light of new human activities (bioprospecting and bottom trawling) and other legal regimes (intellectual property and high seas freedoms) that are now encroaching on it.

Part XI, as modified by the 1994 ISA Implementing Agreement, moves from broad, peremptory principles to more specific rules governing just “mineral” resources. The peremptory³⁰⁴ first principle of Part XI is that: “The Area and its resources are the common heritage of mankind.”³⁰⁵ To this end, Article 137(1) proscribes and denies recognition to claims or exercises of “sovereignty or sovereign rights,” and to unilateral or private “appropriation,” over “any part” of the Area or its resources.³⁰⁶ Article 137(2) thus “vest[s] in mankind as a whole” the rights to these resources.³⁰⁷

Against these broad principles for “the Area and its resources,” the focus of Part XI is decidedly narrower. “Resources” is itself a term of art, defined as “all solid, liquid or gaseous mineral resources in situ in the Area.”³⁰⁸ “[A]ctivities in the Area” are thus “all activities of exploration for, and exploitation of,” the Area’s mineral resources.³⁰⁹ “Activities in the Area,” in turn, must be “organized, carried out and controlled by the Authority”³¹⁰ and according to Part XI and the ISA’s rules and regulations established thereunder.³¹¹

Part XI establishes a robust mandate for the ISA’s governance of activities in the Area. Article 140(2) provides for equitable revenue sharing derived from activities in the Area.³¹² Article 143 provides that both States Parties and the ISA may carry out marine scientific research in the Area for peaceful purposes and with a view to disseminating the results of such research. Article 145 provides an environmental regulatory mandate that “necessary measures shall be taken . . . to ensure effective protection for the marine environment from harmful effects” caused by activities in the Area, and to this end tasks the ISA with responsibility for adopting appropriate rules to protect and conserve marine flora and fauna from environmental hazards.³¹³

Consistent with ensuring an effective, universal property rules regime, Part XI provides for State responsibility, regulatory elaboration, and dispute settlement with respect to activities in the Area. Responsibility to ensure adherence with the rules of the ISA and Part XI by States and their nationals—and liability should they not comply—is provided by Article 139.³¹⁴ The ISA can also elaborate and adopt new regulations for activities in the Area as they develop; the ISA Council, “the executive organ of the Authority,”³¹⁵ must decide within three years whether it will act on a request by “any” State Party to regulate activities in the Area relating to “any resource other than polymetallic nodules.”³¹⁶

Compulsory legal recourse and remedies for disputes involving Part XI or activities in the Area may be found in Part XI, Section 5.³¹⁷ Section 5 provides binding settlement for disputes over commercial contracts disputes involving State Parties and for issues concerning the ISA’s liability.³¹⁸ It also provides binding jurisdiction in the Seabed Disputes Chamber of ITLOS for disputes “between States Parties” over the “interpretation or application” of Part XI and for other public law-type disputes involving the propriety of nondiscretionary acts by States or the ISA under Part XI.³¹⁹ This makes disputes arising under Section 5 unique in the UNCLOS framework because these compulsory jurisdictions are expressly not affected by the choice of dispute settlement procedures available for other law of the sea disputes.³²⁰ Nor must all parties give consent for jurisdiction to attach: disputes “concerning the interpretation or application” of Part XI may be brought to an ad hoc panel of the Seabed Disputes Chamber “at the request of any party to the dispute.”³²¹ Further, the Seabed Disputes Chamber may issue provisional measures to preserve the status quo or to prevent “serious harm to the marine environment” where it “considers that prima facie it has jurisdiction.”³²² Part XI, in other words, provides not only for a specific property regime to govern the Area, but also for the enforceability necessary to effectuate the property rules contained therein.

B. Intellectual Property in the Deep: Intangible Rights in a Spatial Regime?

Until just recently, humankind knew very little about life in the deep seas. As Gianni has observed:

Throughout human history, the deep ocean has often inspired both wonder and fear. It has been variously seen as a dark and mysterious place entirely inhospitable to life or the home of legendary sea monsters and leviathans that haunted the fevered imaginations of ancient mariners. The deep sea was even perceived as the origin of life itself, the source of the so-called “primordial ooze” which the now famous expedition of the HMS Challenger set out to find in the late 1800s. More recent scientific investigations have served to confirm and increasingly reveal the truly remarkable extent of the mystery and diversity of life in the deep sea.³²³

This deep sea biodiversity is a new frontier for science and industry as well as a topic of increasing importance for international law. Research institutions, as well as the pharmaceutical, health care, cosmetics, and agricultural industries, are increasingly interested in the biodiversity associated with mineral-rich, deep sea, warm hydrothermal vents, and cold-seeps.³²⁴ At least several hundred patents have now been issued by the United States, the European Union, Japan and other developed countries for organisms, products, and processes originating in the deep.³²⁵ A patent entails a bundle of exclusive, temporary property rights that are intended, in the words of the U.S. Constitution, “to promote the Progress of Science and useful Arts . . . .”³²⁶ Patents are the primary means by which bioprospectors have sought to recoup the “very high costs” of exploring and developing new deep sea products (estimated to run from US$231 million to $1.7 billion per new drug).³²⁷

Patents are granted by national governments and effectuated internationally (and erga omnes) through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).³²⁸ Intellectual property rights under TRIPS operate as all international property rights must—by one country’s issuance and others’ recognition. But this has not gone without controversy as bioprospecting has expanded.³²⁹ Countries with biotechnology industries have asserted either that Part XI accommodates “bioprospecting” (biological or genetic research carried out for commercial purposes) under the high seas freedom of marine scientific research, or that UNCLOS is simply not relevant to bioprospecting.³³⁰ The result of either view would be international patenting of deep sea living resources on a first-come-first-served basis.³³¹ This has provoked concern by developing countries, who contend that the fruits of marine scientific research cannot be owned at all, or else ought to be viewed as “common heritage of mankind” subject to ISA regulatory and revenue-sharing jurisdiction.³³²

Other authors have taken up the important question of how to reconcile developed and developing countries’ approaches to deep seas intellectual property.³³³ This subsection largely avoids this debate by focusing on the question precedent: whether the need for a new deep sea intellectual property regime is felt by a sufficient plurality of nations to make a new property rules agreement a viable political and legal necessity. In answering this question in the affirmative, this section briefly analyzes this intersection of TRIPS and UNCLOS and finds that the Convention provides fairly clear grounds for denying patentability for products derived from pure marine scientific research or organisms collected in the Area. Beyond this, however, neither UNCLOS nor TRIPS provides reliable rules for governing the prospecting or exploitation of marine biological and genetic resources. This section concludes that the legal conflict, uncertainty, and fracturing of deep sea intellectual property rights that might result should provide impetus enough for a new bargained consensus that would universally recognize bioprospecting patents while equitably sharing some of their benefits with developing countries.

TRIPS requires that patents “shall be available” for “any inventions” that are new, that involve an inventive step (or are non-obvious), and that are capable of industrial application (or are useful).³³⁴ TRIPS expressly contemplates the patentability of microorganisms and their microbiological processes, though it allows States to refuse patentability for higher trophic level plants and animals (provided they are given some form of effective protection).³³⁵ Beyond this, however, TRIPS allows non-recognition of a foreign-granted patent only where necessary to protect “ordre public or morality”; “mere[]” prohibition by domestic law cannot suffice for non-recognition.³³⁶

Under this framework, developed countries have granted patents for biological substances and microorganisms themselves.³³⁷ This has blurred the traditional distinction between unpatentable ‘discoveries’ and patentable ‘inventions.’ It is understandable how genetically-engineered organisms are inventive and thus patentable,³³⁸ yet developed countries are going well beyond genetically engineered products in issuing patents. The Guidelines for Examination issued by the European Patent Office,³³⁹ for example, affirm that “mere discovery” is unpatentable, but provide that if a microorganism is shown to produce a “technical effect,” then it may be patentable.³⁴⁰ The Guidelines provide that one covered technical effect can be “microbiological processes,” such as asexual reproduction.³⁴¹ This could be read to allow patenting of any asexually reproducing microorganism without a showing that this reproduction is independently useful or that it required any additional human inventiveness.³⁴² Naturally occurring substances are also patentable in the United States and Japan, for example, when they can be isolated from previously unknown or undetected materials or organisms.³⁴³ In many cases, however, patents have been issued for microorganisms and substances per se seemingly independently of any useful process or product identified or synthesized from them.³⁴⁴ This has provoked a political reaction by developing countries, but this so far has had little legal effect as, again, “mere” domestic illegality is insufficient under TRIPS to deny recognition to international patents.

Just as TRIPS can give intellectual property rights life outside national borders, the issue for developing countries is then whether they are under a concomitant obligation to recognize patents for per se microorganisms and substances collected beyond national jurisdictions. The answer UNCLOS provides depends on two problematic determinations: the prior intent of the person or entity collecting the material and the spatial zone in which the microorganism is collected. UNCLOS Article 241 would seem expressly to preclude patenting the results of “marine scientific research.”³⁴⁵ UNCLOS, however, does not define “marine scientific research.”³⁴⁶ Instead, a more informal distinction is frequently made between “pure” marine scientific research unpatentable by Article 241 and “applied” bioprospecting, which is carried out with prior commercial intent and might thus be patentable.³⁴⁷ Yet this informal distinction is not generally recognized by many developing countries³⁴⁸ and is not always workable in practice as the results of science undertaken initially for “pure” research purposes are frequently passed directly to industry.³⁴⁹

The spatial property rules system adopted in UNCLOS further complicates international patent rights. The basic spatial issue under UNCLOS would be whether an organism is collected in the water column, and thus is subject to the high seas regime, or from the seabed, in which case it would be part of the Area.³⁵⁰ If collected in the water column, there arises the difficult issue just discussed of whether the collection was part of marine scientific research or commercial bioprospecting. If collected from the seabed, the intricacies of res publica and Part XI arise. It must be conceded that living microorganisms are not “mineral resources” subject to ISA jurisdiction. But this does not exclude them from Part XI altogether. Recall that Article 137(1) proscribes any exercises of sovereignty or appropriation over “any part of the Area.” This provision echoes the concern voiced by Ambassador Pardo that mere exploitability of the deep seabed could become the basis for new and inequitable property claims. On this basis, and according to its plain terms, the best reading of Article 137(1) would seem to be that it quite simply prohibits patenting seabed organisms in whole or in part; the further engineering of that material might well be patentable, but the material itself is not.

Thus UNCLOS provides two possible bases for denying claims of international patentability: Article 241 prohibits any property claims arising from marine scientific research and Article 137(1) prohibits against any appropriation of any part of the Area. These provisions, being part of international law, comprise more than “mere” domestic law and may thus also be appropriate bases for denying patentability under TRIPS.³⁵¹

Neither basis would be easily or reliably demonstrated. The intent of the individual or entity that originally collected the biological material from the deep seas will almost certainly not be recorded on a patent application; the mere fact that a patent is sought should always provide sufficient grounds to assert at least some commercial intent. Further, patent applications rarely record whether the biological material was collected in the seabed or water column or within or beyond national jurisdictions, and in any case, this information could be readily manipulated if patentability were at stake.³⁵²

By providing prima facie, but problematic, bases for nonpatentability, UNCLOS has the potential to muddy TRIPS patents considerably. The political discontent many developing countries are beginning to articulate over a biotech free-for-all in the deep sea commons could result in distrust and the refutation of international patents that might have been derived from organisms ostensibly protected from appropriation by Part XI. This could bring developed countries, in turn, to restrict developing countries’ access to biotech or to bring counterclaims or countermeasures. Either way, a fractious showdown between UNCLOS and WTO law and dispute settlement could be in the offing. The consequences of a patent showdown at the very least would undermine the erga omnes respect necessary for international property rights in the patents and in Part XI.

Fortunately, both UNCLOS and TRIPS point the way forward: each invites review of their respective provisions concerning marine scientific research, bioprospecting, and intellectual property. UNCLOS Article 251 urges the elaboration of general criteria and guidelines to assist in ascertaining the “nature and implications” of marine scientific research.³⁵³ To this end, a working group on marine biodiversity beyond national jurisdiction was convened at the General Assembly in early 2006, though no substantive outcome (beyond an expression by a number of countries of a desire to meet again) was reached.³⁵⁴ TRIPS also requires a special review, which began in 1999, of the patentability of living organisms, though this review is still ongoing.³⁵⁵

Although neither review has yet yielded any new agreement, if developing countries assert the legal right under UNCLOS and TRIPS to deny patentability for deep sea microorganisms, and industry in developed countries would stand to benefit from effective patenting, significant gains could be realized by cooperation. On this basis, further international negotiations and consensus about deep sea intellectual property rights could well be in the offing. The details of such a regime are beyond the scope of this inquiry, though doubtless it would seek to ensure an effective patent system for bioprospectors while not unfairly or inequitably appropriating the deep sea genetic commons.

C. Deep Sea Fisheries Under Part XI: Where High Seas Freedoms Hit Rock Bottom

A similar impasse may also be developing with respect to another deep sea activity: bottom trawl fishing. Bottom trawling involves dragging large weighted nets across the seabed to catch the fish living in the waters just above.³⁵⁶ The practice has caused longstanding and mounting concern about its destructiveness to fisheries and ecosystems.³⁵⁷ Bottom trawling is increasingly recognized today as destructive to the coral, sponge, and other organisms that live on or near the seabed and is the cause of ninety-five percent of the worldwide damage to seamount ecosystems.³⁵⁸ A network of more than 1400 marine scientists has mobilized against it.³⁵⁹ It is the subject of heated discussions at nearly every global oceans forum³⁶⁰ and will likely consume the attention of the fisheries and oceans General Assembly negotiating sessions at least through 2009.³⁶¹ It is also the focus of a series of recent General Assembly resolutions calling on States and Regional Fisheries Management Organizations and arrangements (RFMOs) to “take action immediately” to put a halt to such destructive fishing practices.³⁶²

As the majority of coastal fisheries are being fished at or above capacity,³⁶³ and are regulated accordingly, fishing activities are starting to move farther out into the ocean and into waters up to 2000 metres deep where they face relatively few real restrictions.³⁶⁴ Although it is estimated that it is now only a US$300-400 million per year industry and nets only 0.025% of the total world fish catch,³⁶⁵ bottom trawling is a particularly efficient method of catching these deep water fish.³⁶⁶ Bottom-dwelling fish populations tend to aggregate among, and depend on, seamount habitats and coral beds and reefs,³⁶⁷ which are easily decimated by the scraping action of trawl nets.³⁶⁸ Bottom trawling works not just by scooping up schools of fish, but as the nets scrape the seabed they generate noise and kick up a cloud of subsoil and coral debris that attracts fish into the nets.³⁶⁹

Bottom trawling thus evokes a potential clash between freedoms of the high seas and the res publica seabed regime. The basic distinction between the “free” water column and the “common heritage” seabed beyond national jurisdictions has always been legally complicated.³⁷⁰ Given that “the problems of ocean space are closely interrelated and need to be considered as a whole,”³⁷¹ and because this practice directly impacts the seabed, might bottom trawling move beyond a “freedom” of the high seas to an infringement on the seabed common heritage? There is little doubt that coastal States have jurisdiction to regulate bottom trawling on the extended continental shelf.³⁷² But even those most vocal in calling for a prohibition against bottom trawling in international waters seem to have accepted that the practice falls into a lacuna of the “free” high seas.³⁷³ This section argues, by contrast, that bottom trawling exploits coral “mineral resources” and thus might well be considered an “activit[y] in the Area.” As such, it would fall under the system of effective regulation and binding environmental protection envisioned under Part XI. At the very least, the possibility that the seabed and its resources are being razed ought to invite the directed attention of the General Assembly, the ISA, or even the binding jurisdiction of the Seabed Disputes Chamber.

1. “Activities in the Area”: Corals and Their Calcium Structures as “Mineral Resources”

A few brief facts about coral itself must first be established.³⁷⁴ Corals are composed of colonies of individual polyps accreted on the calcium carbonate skeletal remains of prior generations. Coral structures are thus composed of a living outside layer attached to an inert calcium anchor in the seabed. The accretion process is gradual and coral communities tend to be old (up to 8000 years) and to develop slowly. Corals may live in warm or cold water, and both types exist within and beyond national jurisdictions. Shallow tropical water corals (like staghorn) can form massive stony reef structures. Coral reefs can be found in deep and cold waters as well (like Lophelia and the gorgonians). Both warm and cold water corals are centers for marine ecosystems and form critical habitat benefiting marine life at every trophic level.

There are also economic uses of coral. It is harvested, produced, and sold both as live or dead ‘habitat’ for aquarium hobbyists and as polished gemstones for jewelry. Coral has been mined for limestone and jewelry in many parts of the world, dating from 500 B.C.³⁷⁵ Compounds with medicinal promise have been isolated from coral, as well.³⁷⁶ And at least one attempt has been made to construct an independent island oasis on top of a coral atoll arguably beyond national jurisdiction.³⁷⁷

Might coral, then, be interpreted as a legal “mineral resource” that would set in motion the Part XI path of licensing, regulation, and responsibility for “activities in the Area”? The general rule of treaty interpretation is provided by Article 31 of the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”³⁷⁸

Finding “accord” over the “object and purpose,” or the “ordinary meaning” of mineral resources “in their context,” for Part XI is not as easy as it ought to be. As George Reeves has thoroughly explored for the jurisprudence of U.S. courts who have struggled with interpreting “minerals”:

The word “mineral” is a word of general language and is not per se a word of art. It is not a definite term and has no definite and certain meaning which can be applied in all cases. On the contrary it is used in many senses. It is a word which is incapable of a definition which would be uniformly applicable, but rather is susceptible of limitation according to the intention with which it is used in a particular instrument or statute. Each case must be determined upon its own facts.³⁷⁹

Bearing in mind the pedestrian nature of the word “minerals,” UNCLOS Article 133(a), in turn, provides: “[R]esources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules.³⁸⁰ The inclusion of “all” to modify “mineral resources” is a particularly significant textual choice. It suggests that the minerals governed “be all inclusive, and that no substance legally cognizable as a mineral is to be excluded . . . .”³⁸¹

This broadly inclusive baseline accords with how Article 133(a) came about. Though the Conference negotiators were particularly focused on polymetallic nodules because their exploitation seemed imminent,³⁸² “mineral resources” was never meant strictly or literally. Successive negotiating texts grappled with expansive enumerations of the substances and geophysical characteristics that would qualify as “mineral resources.” The penultimate version even provided that all “solid substances” on the seabed would be covered by Part XI, which almost certainly would have included coral. Negotiators finally dropped the laundry list for the final blanket reference to �