Here's why the UN's law of the sea needs an overhaul

The UN Convention on the Law of the Sea (UNCLOS) was adopted 40 years ago this week, after a quarter of a century of negotiations. The UN Secretary General at the time described it as "possibly the most significant legal instrument of this century." Many have acclaimed its success. But the Maltese diplomat who inspired it, Arvid Pardo, was bitterly disappointed by it, saying: "All that is left of the common heritage of mankind is a few fish and a little seaweed."

UNCLOS was a set of compromises. Under common law since ancient Rome, the sea and seabed were regarded as a commons, not subject to being made into either state or private property. But UNCLOS allowed all coastal countries to have Exclusive Economic Zones (EEZs) as state property 200 nautical miles from their coast. In return, it was agreed that commercial gains made in the deep sea outside those EEZs would be shared as "the common heritage of mankind". It was also agreed that no deep sea mining would go ahead until a mining code and sharing mechanisms were agreed. The International Seabed Authority (ISA) was set up to develop those.

While developing countries were glad to obtain EEZs, countries with long-distance fishing fleets were fearful of losing access to the best fishing grounds. Therefore UNCLOS required countries deemed unable to exploit fishing grounds fully to allow foreign fisheries to catch the "surplus". This has proven disastrous for African countries, in particular. The Soviet Union (then Russia), the USA, Japan, and European Union countries, joined later by China, drew up 300 Fishing Access Agreements (FAAs) that have given their corporations nearly all the profits and allowed them to overfish with impunity. Fish populations and traditional fishing communities have been devastated.

The business community must now put pressure on the United Nations and others to rectify the most obvious failings of FAAs and related joint ventures. FAAs should all be made transparent – most are not, although the European Union now requires theirs to be. And since long-distance fishing is only feasible because governments provide huge fuel and ‘capacity enhancing’ subsidies, they should be ended.

Industrial fisheries have received subsidies amounting to $35 billion a year. Without them, most long-distance fishing would be uneconomic. Yet in 2022, after years of negotiation, members of the World Trade Organization, charged with tackling harmful subsidies, could only agree on eliminating them for ‘illegal’ fishing. Subsidised fisheries from rich countries also destroy local small-scale fisheries. The international business community should join the chorus demanding an end to all such subsidies.

Perhaps even more urgently, business should take concerted action with respect to deep sea mining. In June 2021, the Pacific island nation of Nauru triggered an obscure rule in UNCLOS that states that if a country applies to start mining, the ISA has two years to produce a Code or mining can proceed. There is no prospect of a Code, since it depends on a consensus vote. So, a rush on the region's resources could start next July. The French and German governments, and a growing array of prominent companies, have called for a moratorium.

Marine scientists have highlighted the environmental impact of mining the seabed, which will destroy ecosystems and weaken the ocean’s capacity as a carbon sink. Sediment releases from the huge robots will travel hundreds of miles, destroying coral reefs and habitats. Noise will disturb marine breeding and migratory patterns, further weakening the ocean carbon pump, the sea’s capacity to absorb CO2.

The challenge is intensified by the weakness of ISA. Based in Kingston, Jamaica, it has an annual regular budget of just $9 million with which to regulate and monitor half the world’s seabed. Decisions must be made by consensus among its 167 member countries and the EU. It has a Legal and Technical Council, but no independent scientific council to advise it. Upon application, it issues exploratory licences to mining corporations for $500,000 – which are always granted. So far, there are 31.

The boundary between exploration and mining is hazy. There is also geopolitical tension. A few countries dominate the exploration phase; they are unlikely to support the sharing principle underpinning UNCLOS. It would have been easier to reach consensus before exploration started.

One issue concerns intellectual property rights. When UNCLOS was negotiated, the commercial potential of marine organisms was unrecognized. Since then ‘marine genetic resources’ have become economically important. Over 13,000 patents have been filed - 76% by just three countries, the USA, Germany and Japan. Patents confer twenty years of monopoly profits. This goes against the ethos of UNCLOS, which sees our oceans as commons.

The United Nations should revisit UNCLOS to find ways of preventing a mining bonanza in the deep sea until there is clear scientific evidence that damage would not be large and until mechanisms for sharing the economic gains are developed.

Guy Standing is author of The Blue Commons: Rescuing the Economy of the Sea