Evidence: Recently Added
Currently, the main concerns relating to submarine cables are in the perspective of multiple ocean use introduced by UNCLOS. The conflicts between cables and other ocean uses, the overlapping of maritime zones, the legality of exclusion zones around cables, compensation for lost or damaged fishing gear due to cable interactions, legal liability for damaging cables, and unclear jurisdiction and interdepartmental coordination in the cable licensing and regulatory processes are only some of the potential conflicts to be resolved by States.
In particular, with regard to the laying of submarine cables, doubts can be also expressed about the interaction between the interest of coastal States to regulate their maritime spaces and the possibility to lay submarine cables by other States or individuals. Furthermore, in the maritime zones outside of the sovereignty of coastal States, the freedom to lay cable is often opposed to environmental issues as well as the interest to have safe navigation. Laying activities may interfere with the repair of submarine cables as well as navigation for fishing. In addition to this, coastal States often impose taxes on cables laid on the continental shelf or other excessive regulations.24
This lack of precision in the regulations for the laying of submarine cables leads also to enhance the weakness of the measures of protection available in the field.
For reasons of space, I cannot attempt here any detailed or comprehensive survey of non-compliance with the LOSC, nor is it necessary to my case to do so. It is sufficient to give a number of varying and persisting examples to show that non-compliance continues to be a problem.
- Some States parties, including Bangladesh, Egypt, Myanmar and Viet- nam, have drawn straight baselines in ways that do not meet the require- ments of Article 7, even on the most generous interpretation of the admittedly imprecise provisions of that Article.1
- Four States parties (Benin, Philippines, Somalia and Togo) still claim a territorial sea with a breadth in excess of the 12 nautical miles permitted by Article 3.
- 12 States parties, including China, Haiti, India, Pakistan and Saudi Arabia, have included security as one of the matters in respect of which they claim to exercise jurisdiction in their contiguous zones, contrary to Article 33.
- A few States parties, including Japan, have sought to delimit an exclusive economic zone (EEZ) and continental shelf from uninhabitable rocks, contrary to Article 121(3).
- A considerable number of flag State parties are in breach of their obliga- tion under Article 94 to exercise effective jurisdiction and control in respect of the seaworthiness of ships having their nationality, as revealed by the record of inspections and detentions of unseaworthy ships carried out by port States under various regional Memoranda of Understanding (MoU) on port State control. In particular, such States include those on the black list of flag States, and possibly even those on the grey list, pub- lished each year by the Paris and Tokyo MoUs.2
- The biennial reports on the State of World Fisheries and Aquaculture published by the FAO show that for the past decade or more nearly 30% of fish stocks are over-exploited.3 This indicates that some coastal States parties (notably the European Union (EU))4 are in breach of their obliga- tion under Article 61(2) to ensure that the maintenance of the living resources of their EEZs is not endangered by over-exploitation; and that some States parties are in breach of their obligation under Articles 117– 119 to conserve the living resources of the high seas. Furthermore, it has been estimated that as much as one-third of the total global marine fish catch is taken illegally.5 Not all such illegality is necessarily a breach of the LOSC, but a good deal certainly is.
- A number of States parties are in breach of their obligations under Article 194(5) by failing to take the necessary measures to protect and preserve rare or fragile ecosystems, for example by permitting fishing using explo- sives in the vicinity of tropical coral reefs or by permitting bottom trawl- ing on seamounts and areas of cold-water coral reefs in their EEZs.
Some may seek to downplay the significance of non-compliance with the LOSC by arguing that a certain level of non-compliance is to be expected in any legal system: as long as it is kept within reasonable bounds, there need be no undue concern. I believe that this is too sanguine a view. There are just over 160 parties to the LOSC, at least one-third of which (and quite possibly more) are in breach of at least one significant provision of the LOSC. Such a degree of non-compliance undermines the integrity and legitimacy of the LOSC. Furthermore, non-compliance provokes disputes, denies States parties some of their LOSC rights, threatens good order at sea, and harms the marine environment.
In 1982 it may have been reasonable, if perhaps somewhat optimistic, to hope that the LOSC would, in the words of its preamble, establish a “legal order for...the oceans which...will promote the peaceful uses of the seas and oceans, . . . the conservation of their living resources and the . . . preservation of the marine environment.” Thirty years later it is clear that the LOSC has failed to achieve those goals. This is in part due to continuing non-compliance with many of its provisions. Such non-compliance is a matter of serious concern for all the reasons suggested earlier. It could—and should—be addressed by States parties making more use of Part XV of the LOSC (perhaps non- governmental organizations could persuade or help States to bring test cases); by considering more use of retorsion and counter-measures; and by developing compliance mechanisms for other treaties that indirectly help to promote compliance with the LOSC. In some cases assistance in capacity building may also be appropriate.
Coral reefs, mangroves, and estuaries are now considered "among the most highly diverse, integrated and productive of the earth's ecosystems."19 An estimated 175 billion dry metric tons of minable manganese nodules, containing as many as 30 elements, including manganese, nickel, copper, and cobalt, cover about 15 percent of the deep seabed.20 If correct, these reserves far exceed known land deposits.21 Yet initial estimates tended to overestimate not the mineral wealth, nor necessarily the ability of technology to mine it, but the economic feasibility of such endeavors. Mining engineer John Mero predicted in 1965 that by 1985 operations would be processing 50 million tons of nodules annually.22 However, those corporations that had seabed mining technology also had substantial invested interest in the continuing profitability of land-based minerals. Thus, mining of the seabed has not yet become a growth industry. Nevertheless, this vast potential wealth, located on the 70 percent of the earth's surface covered by the oceans,23 is the impetus for both the attempt to privatize the ocean and the resistance to such an enclosure.
The CBD follows UNCLOS in asking for benefit sharing of the uses of biodiversity. 61 Similarly, developing countries, led by China, India, and Brazil, argued that the CBD allows them access to bio-technology that would enable them to exploit their own biological resources.62 The compromise became a call for the transfer of technology and for "fair and equitable sharing of the benefits" when knowledge and resources are exchanged.63 In addition, the CBD requires prior informed consent (PIC) of the local community for access to a bio-resource, not just the central state, which could sell off vital resources for a pittance.64 All stakeholders must mutually consent.65 Materials collected before the formation of the CBD in 1992 are not covered.
Neither the CBD nor UNCLOS has fully defined benefit sharing, but discussions prioritize sharing knowledge and funds for research and development. Discussions have progressed for the CBD, where the need for exchange is more mutual: the North desires access to the biodiversity of South countries, while the South would like access to technology. Of course, all would like to share profits from any practical uses of the resources. The discussion addresses fees for access to germplasm, royalties, profit sharing (much more than the estimated zero to five percent currently offered),66 technology, and funds for development.67
The country with the most powerful biotech corporations has not ratified the CBD, as it has not yet ratified UNCLOS. One reason offered by the United States for refusing to sign in 1992 was that bio- prospecting contracts, such as the one between Merck and INBio in Costa Rica, would obviate the need for an international treaty. From this point of view, benefit sharing should be left up to individual contractors (corporate and community), not promoted by government interference (joint ventures). Others, even those involved in bio-prospecting, view an international treaty as a necessary guideline for the prospecting.71
The International Tribunal for the Law of the Sea, established by UNCLOS, provides the forum for the peaceful settlement of disputes. Its major caseload tends to be arbitration over detention of ships and their crews for fishing unlawfully (e.g., over-fishing) or other violations within the EEZs. The Tribunal decides the terms of release of the crews and ships (e.g., posting of bonds) while a case proceeds. Arbitration is compulsory in most categories of disputes, but some cases are taken to the International Court of Justice (e.g., maritime delimitation). In 2000, the parties to UNCLOS established a trust fund, similar to that used by the ICJ, "to assist states in proceedings before the Tribunal" in order to overcome financial impediments to seeking judicial arbitration of 79 disputes.
As a summary, the chart below offers a quick comparison of important provisions of the United Nations Convention on the Law of the Seas (UNCLOS), the Trade Related Intellectual Property Rights (TRIPs) and the Convention on Biological Diversity (CBD). As discussed above, access to the sea and seed ranges from delimitation of private property under UNCLOS to allowing full privatization under TRIPs to reaffirming national control under the CBD. The extent of the enclosure against access is most serious for TRIPs and could potentially be legalized for all seeds and plants. Sustainable use of resources is a priority for UNCLOS and the CBD but is not even mentioned in TRIPs. Similarly, while it has been left undefined, both UNCLOS and the CBD promote benefit sharing, while TRIPs does not mention it. TRIPs is also the most narrow in its approach to rights, mainly recognizing individual rights. UNCLOS is the most ambitious with its principle of the common heritage of mankind giving equal rights to all beyond the exclusive economic zones (EEZs) of 200 nautical miles. The CBD enshrines community and farmers' rights (social group rights) as privileged over individual rights for seeds and plants, which belong to the common heritage of local communities. Finally, UNCLOS employs an international authority as well as legal adjudication for governance. TRIPs relies on national enforcement, with dispute settlements to follow administrative panels' rulings that are arrived at without full disclosure or the ability to cross-examine the opponent. The CBD also relies on national enforcement' with the condition that prior informed consent must come from the communities who cultivated the plant. "National" enforcement, therefore, is modified by the proviso that local communities participate in drafting agreements about seed exchange and benefit sharing, including devising local community trusts.
South countries, such as the 53 nations in the Africa Union, are advancing the way forward by legislating national laws for protecting, while at the same time sharing, biodiversity as advocated by the CDB. Such an approach delimits individual private property by affirming community rights over biodiversity, in shared jurisdiction with national governments. Another initiative among non-governmental organizations revives the international discussion that the gene pool, like the seabed, belongs to the common heritage of mankind:
the intrinsic value of the Earth's gene pool.. .precedes its utility and commercial value .... [T]he Earth's gene pool, in all its biological forms and manifestations, exists in nature and, therefore, must not be claimed as intellectual property even if purified and synthesized in the laboratory .... Therefore, the nations of the world declare the Earth's gene pool... to be a global commons, to be protected and nurtured by all peoples and further declare that genes and the products they code for, in their natural, purified or synthesized form... will not be allowed to be claimed as commercially negotiable genetic information or intellectual property by governments, commercial enterprises, other institutions or individuals.99
Only in the preliminary stages of discussion in international fora, such as the Johannesburg Summit, ten years post-Rio (August 2002), this proposed treaty renews the debates over equity in the use of "common heritage" resources. As this discourse continues, legal interpretation and political experience from UNCLOS will become relevant for clarifying key issues, especially debates over private versus community versus public property over resources necessary to sustain all human life. An international law of the seed will develop dynamically, from shared use and adjudication, as is the international law of the sea.