A scramble for natural resources and the impact of global warming have led to the law governing the ocean becoming ever more important and complex. Polly Botsford reports


Almost three-quarters of the Earth’s surface is covered by sea. There has been a long history of nations fighting over who has rights to its hidden treasures of minerals and marine life. Now, however, this scramble for resources has intensified. At the same time, the impact of modern life on the marine environment is also being more acutely understood and there is pressure to prevent further threats to it. As a result of these conflicting trends, the law governing the ocean is becoming increasingly important and complex.



Three recent issues have highlighted this: Britain’s application to extend its rights over parts of the sea, the mighty question of the future of the Antarctic, and new plans for burying carbon emissions under the seabed.



This autumn, the government announced it was considering applying to extend its jurisdiction into five new areas of the sea: the areas around Hatton-Rockall (a small, rocky islet in the North Atlantic), around South Georgia and Falkland Islands, around the Ascension Islands, the British Antarctic Territory, and an area in the Bay of Biscay. The announcement led to accusations that the UK was out to increase its exploitation of the world’s natural resources. This may, of course, turn out to be correct, but the applications for extensions are legal, and applications which the governing law, the United Nations Convention on the Law of the Sea, had anticipated when it was ratified well over a decade ago.



The convention forms the bedrock of jurisprudence over the world’s seas. Described as a ‘constitution for the oceans’, it was the culmination of decades of attempts to settle once and for all who had a right to what. Until then, nation states had been extending their jurisdiction over the seas and oceans in an uncontrolled and inconsistent (and therefore unequal) way.



Originally, a three-nautical-mile zone (which was as far as a cannon could be shot) was the boundary of national interest from the coast. The next development was the notion that where national territory was extended below the sea via the ‘continental shelf’, then that nation should be entitled to jurisdiction over the waters above the shelf. This shelf-based jurisdiction took many countries well beyond three miles, to as far as 200 miles out into the sea.



The convention was brought about to try and control this ‘creeping national jurisdiction’, as commentators have called it. It established exclusive economic zones (EEZ) of 200 nautical miles from the coast of a nation state, which fall under national jurisdiction and can be exploited and controlled accordingly. Beyond the EEZ, the sea is ‘the common heritage of mankind’, owned by no one and so open to everyone.



The government’s proposed extensions, then, would take Britain’s jurisdiction beyond the EEZ established by the convention. But what the government is doing is not unexpected, as Professor Malcolm Forster, a member of the public international law group at City firm Freshfields Bruckhaus Deringer, explains: ‘When the convention was being debated, those countries which had been enjoying control over their continental shelf, some as far as 200 nautical miles out and beyond, said the EEZ that was being proposed by the convention was not sufficient and so refused to sign up.



‘Instead, therefore, the convention established what is called the United Nations Commission on the Limits of the Continental Shelf [UNCLCS], which said that countries could enjoy the rights they had flowing from the continental shelf, but only if they made submissions, with considerable complex geological data, to the commission to that effect. If they wanted to claim, they had to do so within ten years of signing up to it. The convention also added a new maximum limit of continental shelf rights of 350 miles. This “concession” was in return for these countries ratifying the convention.’



It was this trade-off which led to the Foreign Office announcing its five submissions to the UNCLCS. The reason why it is happening now is that Britain’s ten-year period is up in 2009.



So the submissions, based on existing continental shelf areas, are technically legal, but are they the right thing to do? Greenpeace does not think so. Charlie Kronick, its special adviser on climate change, says: ‘It misses the point [to say] that these submissions are fulfilling earlier claims. If the government is supposed to be taking a lead on climate change, then they should not be making moves to extend their right to exploit fossil fuels. What is the political message they are sending out?’



The government argues that ‘other countries are also considering submitting claims’. And they are, a lot of them, including France, Brazil, Russia, Australia, New Zealand and Norway.



Mr Kronick says: ‘It is disingenuous to say that if they don’t do it, someone else will. That’s just not the point. It is not surprising that they want to find more fossil fuels, with oil prices as they are, but we need a different focus. We need a different industrial and energy policy.’



The government’s submission concerning the continental shelf around South Georgia and the Falkland Islands has been highly controversial, with the Argentinian government claiming that it will also be making a claim to UNCLCS for these areas, which will be an interesting dilemma for the commission. But most lawyers agree that Britain’s claims here are legitimate.



The submission in relation to Hatton-Rockall may be less appealing, however. For a claim to succeed, the land on which the submission is based must be habitable. But Rockall is 19 metres high, 25 metres across and 30 metres wide, and, therefore, unlikely ever to see life established there. ‘Historically, the government has not pushed its luck and tried to argue mineral and marine rights flowing from this small rock, but it appears it is back on the agenda,’ says David Ong, a reader in the law of the sea and international environmental law at the University of Essex.



The most controversial of the five submissions to the UNCLCS relates to the continental shelf extending from the British Antarctic Territory, Britain’s slice of the Antarctic’s iced cake. The Antarctic is a complex legal phenomenon, governed by the Antarctic Treaty System, a series of treaties established in 1959 with the aim of protecting the unique nature of the region. The UK’s claim is to extend its jurisdiction from land of the British Antarctic Territory into the seas over the continental shelf, as with the other submissions. But the treaty says that the Antarctic does not recognise, dispute or establish territorial sovereignty claims and ‘no new claim shall be asserted while the treaty is in force’. Furthermore, it can ‘only be used for scientific purposes’. The Antarctic Treaty System has, in effect, ‘frozen’ all claims to sovereignty over the Antarctic.



So how do Britain’s, and other countries’ continental shelf claims, sit with the provisions of the treaty? Awkwardly is the answer, as Professor Forster explains: ‘All those states who have suspended their rights over the Antarctic are now obliged to make these submissions to the UNCLCS under the terms of the convention. The commission is certainly in a difficult position.’

The British government is quick to play the protective card when announcing its proposed extension, adding: ‘We are absolutely committed to upholding our obligations under the Antarctic Treaty.’ The conclusion reached by the UNCLCS on all the submissions made to it will be revealed over the next few years, but it is clear that the juridical divides over the oceans are becoming increasingly intricate.



The Antarctic also has other problems. In particular, there is the challenge of what could be called ‘new sea’ created by climate change. If the gigantic ice sheets and glaciers melt as a result of global warming, more of the Antarctic area may be potentially exploitable for marine resources and open for shipping. This appears to be happening already in the Arctic after the heat of this year’s summer. For the first time, the ice melted to such an extent that the infamous Northwest Passage, which runs between Canada and Greenland, from the Pacific to the Atlantic Oceans, and is usually a frozen road, was open, according to Dutch scientists.



The general meltdown in recent years has resulted in sporadic scrambles by particular states, such as Russia putting flags on parts of the Arctic seabed and Canada threatening a ban on transit along the Northwest Passage. So what will happen if there is a similar summer meltdown and, therefore, increased accessibility to the sea, in the Antarctic?



Professor Gillian Triggs is director of the British Institute of International and Comparative Law, an Antarctic expert, and co-editor of Antarctica, Legal and Environmental Challenges for the Future, published by the institute. She is cautiously optimistic: ‘Thus far, international law, backed by international political will, has been highly successful in developing the Antarctic Treaty System… [and] creating one of the world’s most rigorous and effective environmental regimes… It is a masterpiece of contrived ambiguity to avoid differing juridical approaches to sovereignty that has been surprisingly resilient and successful over the years.’



Of course, she warns, the impact of climate change may lead to situations which ‘may not be so easily regulated in the future’, and it is, in any event, ‘unlikely that the parties would agree to more stringent and enforceable provisions [of the treaty]’.



But the signatories have a vested interest in keeping the treaty alive and, therefore, the Antarctic in some way protected. This is because if the treaty system were to fall apart, then the Antarctic would fall under the ‘common heritage of mankind’, which would mean other states who have no current presence in the Antarctic could intervene, and none of the signatories want that. It is also the case that the Antarctic may well fare better than the Arctic, which has no treaty system in place, only the Arctic Council, which does not have the legal dimension the treaty has. The future protection of this pristine continent is dependent upon an increasing tangle of legal treaties and, of course, political will.



Another turbulent issue within the international law of the sea concerns the areas outside national jurisdictions, commonly known as ‘the high seas’. There is a legal distinction between the seabed of the high seas and the waters above it.



The seabed falls within the ‘common heritage of mankind’ and states must apply to the International Seabed Authority if they wish to exploit natural resources in this area. The authority has been relatively quiet until recently, when a select number of countries, such as China, India, the US and Germany, started to apply for permits in specific areas. As Mr Ong explains: ‘So far there has been no economically viable mining in these areas, first because it is technologically very difficult, but second because the minerals extracted, such as manganese, nickel and zinc, have had low world-market prices due to abundant land-based production. But now that China and India are rapidly industrialising, demand for these minerals is increasing, and prices for these minerals are much higher in the world market.’ As a result, these countries have been applying for permits.



As for the actual waters of the high seas and the marine life within it, legally speaking, there is freedom of fishing, but this has created huge environmental problems, and what has become known as ‘illegal, unregulated, unreported’ fishing. To tackle this, conventions are being entered into where countries come together to regulate not only the 200-nautical-mile parameters, but also the high seas beyond them. As long as all the coastal state neighbours to the particular area of the high seas are party to such a convention, then they are entitled to do this under international law.



The Forum Fisheries Agency in the South Pacific is just such a network of 16 neighbours, set up 26 years ago under an international convention. With each of these agencies come more regional conventions and regulations to protect marine resources, again adding extra layers to the laws governing the seas, even where ostensibly there is freedom of access.



The law of the sea has also increasingly become enmeshed with international environmental law, and a number of treaties governing specific areas exist to protect the marine environment. But, at the same time, governments, including Britain’s, are pushing to utilise this very environment to tap into resources or, in relation to carbon sequestration, to bury unwanted materials.

The capture and storage of carbon under the seabed, which is a recent and highly controversial initiative to combat the damaging effects of carbon emissions, used to be considered a form of waste-dumping. But the 1972 marine convention relating to waste dumping and pollution in the sea (known as the London Convention) was amended to allow this technique. Next month, the Department for Business, Enterprise and Regulatory Reform will announce the launch of a competition to design the technology for carbon capture and storage.



It appears that the sea, and the environmental issues which surround it, are as much matters of international law as matters of nature.



Polly Botsford is a freelance journalist