UNCLOS — An Urgent Call to Revise the Law of the Sea
by Guy Standing
In 1982, after many years of tortured negotiations, the United Nations established the Convention on the Law of the Sea, known ever since as UNCLOS. It came into effect in 1994, when enough countries had ratified it. When signed, the UN Secretary General [at the time Javier Pérez de Cuéllar (Peru)] said it was “possibly the most significant legal instrument of the century.”
Many have acclaimed its success. However, the Maltese diplomat who inspired it, Arvid Pardo (often described as the father of the law of the sea), was bitterly disappointed. Wanting it to protect the blue commons, he lamented,
All that is left of the common heritage of mankind is a few fish and a little seaweed.
The UNCLOS took shape in a period that coincided with a revolution in economics and politics known today as neoliberalism, led politically by Ronald Reagan and Margaret Thatcher. As elaborated elsewhere, the crumbling of the post-1945 ethos of multilateralism and social solidarity led to UNCLOS becoming a messy set of compromises, in which different interests gained something at the cost of sacrificing something else that at the time seemed worthwhile. Today, the adverse consequences for the world and for the sea in particular should be sufficiently clear to justify a major initiative to reform it.
The most dramatic outcome of UNCLOS was that all coastal countries obtained an Exclusive Economic Zone (EEZ) of 200 nautical miles from their coast. In effect, over one-third of all the world’s sea was enclosed, converted from a commons owned by everybody into state property — 138 million square kilometres, easily the biggest enclosure in history.
Because of its colonial past, and still possessing scattered islands, France gained most, some 11.7 million square kilometres. It was followed by the USA and then a long way behind by Australia, Russia and the UK. What was scarcely noted at the time was that China only obtained 900,000 square kilometres, one-fourteenth of what the USA obtained, despite having a population four times as large. One cannot adequately appreciate the tensions in the South Pacific today without knowing that geo-political inequity, even though ironically China was one of the first countries to ratify UNCLOS.
As part of the UNCLOS deal, the two superpowers of the time obtained what they wanted in freedom of navigation globally outside the 12-mile territorial limit of every country. Developing countries, besides gaining the EEZs, obtained two promises — a commitment to allow them to obtain rental income from any foreign mining in their waters and an agreement that no deep sea mining outside EEZs would be allowed until there was an agreed mining code to protect nature and an agreed mechanism for sharing the benefits of such mining between all countries. This latter promise was enough to secure the acceptance of UNCLOS by the 43 landlocked countries.
In addition, a group of rich countries gained something that has come to be a pure act of neo-colonialism and a source of a deepening ecological crisis. Fearful of losing access to the most productive fishing grounds in the world around developing countries, large rich countries gained agreement that if any country could not catch fish up to the notion of ‘Maximum Sustainable Yield’ (MSY) it had to make what came to be known as a Fishing Access Agreement with one or more countries with long-distance fishing fleets to catch the remainder.
This has resulted in the plunder of fish populations globally. The idea of MSY was the crazed idea of an obscure US civil servant in 1949, who reasoned that there was an inverted U-shaped curve, in which the target should be to catch up to the peak. Catching fewer was as bad as catching too many, because, he reasoned, catching a lot of fish would ‘thin’ the population and remove the big old fish to allow the young more virile fish to breed. It was Malthusian madness in 1949, but extraordinarily the concept went into UNCLOS and is still used in 2023.
Use of Maximum Sustainable Yield led to developing countries signing up to over 300 Fishing Access Agreements. There is no doubt that those countries have lost out, only gaining something like 5–8% of all the revenue gained from the fish caught in their EEZs. These legal deals have probably been more responsible for the collapse of fish populations than so-called IUU (Illegal, Unreported, Unregulated) fishing that receives most critical scrutiny from the FAO, World Bank and other commentators. Fish populations and traditional fishing communities have been devastated, with China’s 17,000-strong long distance fishing fleet the worst offender. By no means should UNCLOS be blamed for all that. However, it failed dismally to protect developing countries or their fish populations.
So, in effect, rich countries obtained firm commitments and access to fishing grounds, while developing countries obtained rather vague promises without time constraints. To make matters worse, under UNCLOS, an International Seabed Authority (ISA) was set up in 1994 with responsibility for developing the code for deep sea mining and a benefit sharing formula.
From the outset, this was willfully shameful. In the 28 years since it was set up, ISA has failed to produce either. That is scarcely surprising, since the agreements must be by consensus. In other words, all 167 countries, plus the European Union, that have ratified UNCLOS must agree to it before it can be implemented. To make an international agreement even more unlikely, President Ronald Reagan refused to ratify the Convention and the USA has still not done so.
The ISA from the outset has been a feeble body, headquartered in Kingston, Jamaica, and provided with merely $9 million a year as a regular budget, to monitor and regulate all the Deep Sea of the world. And it has been perverted by a conflict of interest. It has been selling so-called exploration licenses to countries and companies for $500,000 each. This is a very handy supplement, each coming to 7% of the regular budget. Unsurprisingly, ISA has never refused an application. There are 31, five owned by China, which also happens to be the biggest funder of the ISA.
The exploration licenses have been for vast areas of the seabed and cover over a million square miles. Environmental impact assessments are conducted, if at all, by the contracting company and are not independently verified. The ISA is ill-equipped to do a proper job.
But a time bomb is ticking. In June 2021, the Pacific island nation of Nauru, collaborating with the Canadian mining company, The Metals Company (TMC), took advantage of an obscure article in UNCLOS that states that if a party to the Convention applies to start deep-sea mining, the ISA has precisely two years to draw up a mining code and sharing mechanism and if not, mining can start.
All of us should be deeply alarmed. The environmental impact of deep-sea mining could be catastrophic, which is why hundreds of scientists and policymakers have called for a moratorium. Massive machines will scour the ocean bed to pick up potato-sized polymetallic nodules, destroying everything in their path and creating sediment plumes that can suffocate coral reefs and other organisms hundreds of miles from the mining site. Such mining will damage the ocean’s ability to act as a carbon sink, accelerating global warming rather than contributing to its mitigation. And possibly worst of all, new research has suggested that the nodules could contain levels of radioactive substances that would be a danger to human health.
This article is being written with one month before the two year notice is complete, and there is absolutely no chance of either an agreed code or sharing mechanism. Belatedly, the governments of several countries, including France, Germany and Spain, have demanded a moratorium on mining, backed by the World Wildlife Fund and other bodies, including several multinationals. However, legally, it may be too late, even though the government of Nauru itself has said it would not rush to give a license to mine.
The trouble is that the ISA has become little more than an advocate of deep sea mining.
Further discouragement comes from the fact that ISA’s British Secretary General is sanguine, saying blithely, “I don’t believe people should worry that much.” The ISA has become an agency for corporate mining, not a steward for the global commons. Many believe it is unfit for purpose; it needs to be both enlarged and reformed.
One further issue concerns intellectual property rights in the sea. When UNCLOS was negotiated, the commercial potential of marine organisms was unrecognized. Since then ‘marine genetic resources’ (MGRs) have become economically important. Over 13,000 patents have been filed, 47% by the German chemicals giant, BASF, and 76% by just three countries, the USA, Germany and Japan. Patents confer twenty years of monopoly profits, and contradict any benefit-sharing ethos.
In sum, it is very unlikely that the ISA, as presently constituted and managed, could forge an equitable international mechanism for sharing the benefits globally. The only time when that could have been achieved was when UNCLOS was negotiated. The only way to rescue the commons ideals that stimulated those early negotiators would be by negotiating a new Convention.
But the ethos of multilateralism has been weakened, tragically, over the past few decades. Any new agreement would require China and the United States to show much more serious leadership than they have shown thus far. They must realize that the global oceans cannot thrive unless they step back from trying to be globally powerful states.
They must do it, and we must campaign for them to do so.
Guy Standing is an economist, with a PhD from the University of Cambridge. He is Professorial Research Associate at SOAS University of London, and was a professor at SOAS and Bath and Monash universities. He was Director of the ILO’s Socio-Economic Security Programme, and Director of Research for President Mandela’s Labour Market Commission. He has been a consultant for many international bodies, and is co-founder and co-president of BIEN, and a Fellow of the Royal Society of the Arts and the UK Academy of Social Sciences. He has conducted basic income pilots in several countries, and is advising the governments of Wales and Catalonia on ongoing pilots.
His latest book is The Blue Commons (2022), which the Financial Times made a Book of the Year. Others include Plunder of the Commons (2019); Basic Income: And How We Can Make It Happen (2017); Basic Income: A Transformative Policy for India (2015); The Precariat: The New Dangerous Class (fourth edition 2021).