July 26, 2007
Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It)
By Prows, Peter
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. I. INTRODUCTIONThe 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.' Pardo proposed a consensusbased 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)." 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 lawand 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 G77 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 setasides than did the original Part XI." 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 commanddriven 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.
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 "commun/ s omnium naturali jure"27 or "common or open to all men by the operation of natural law."(TM) 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? 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." 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, Corelius 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.4'' Thus, the pragmatic "cannon-shot doctrine" was born to set the breadth of the territorial sea at three nautical miles,'0 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 cannonshot 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 Proclamation" 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 fortyfive; 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...."
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-a-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 "skjoergard") 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 skjoergard. 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." 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 Seaswere 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 "[examination 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, "[sjolemnly declaring] " 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 ...."% 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." 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 socalled "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.119 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."7 It also emboldened unilateralist national regulations to address growing concerns about marine pollution, fisheries, and scarce resources."8 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.
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 coastalState 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."1 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.(TM) 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.13' 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 reflects] 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 "reflecting] 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 shortterm 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;"1 and expansive freedoms in the high seas."2 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 particular171 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.
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.1" 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""2 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.1" 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.""6) 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."m 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."1911 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.1" Article 76(4) provides the methods for calculating the critical "outer edge of the continental margin," which include two alternate geomorphologie 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" formula21" 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.20' 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 prepar