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


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 UN 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. The attempt to ‘legalize’ scientific criteria still retains legal vagueness and ambiguities as well as the uncertainties inherent in any nascent scientific endeavor. Further, the administrative and financial support established to assist in working through these challenges has brought its own bureaucratic obstacles. This has led to a near-perfect storm for 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 come not from implementation of a legal process, but from substantive overlap and even conflict between Part XI and other international law. Part XI seems to provide clear grounds to refute the assertion of international patent rights for seabed organisms. This could set the stage for a fragmentation of international intellectual property rights under TRIPS and the UNCLOS seabed regime. And the expansion of bottom trawl fishing that directly impacts and exploits coral and the seabed is excused under high seas fishing freedoms, but could also be viewed as infringing on the basic tenets of the seabed “common heritage” and thus could invoke individual State responsibility or the regulatory jurisdiction of Part XI. At each juncture, as this paper suggests, 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.


Environmental Law | Intellectual Property Law | International Law | Jurisdiction | Law and Politics | Law of the Sea | Oil, Gas, and Mineral Law | Property Law and Real Estate

Date of this Version

July 2006