Was Selden right? The expansion of closed seas and its consequences.

• Author: Shackelford, Scott J.

1. INTRODUCTION II. THE IMPACT OF TECHNOLOGY, POLITICS, AND RESOURCE SCARCITY ON THE GOVERNANCE OF OFFSHORE RESOURCES A. Technological Advancements B. Domestic and Multipolar International Politics C. Resource Scarcity III. THE EVOLUTION OF THE LAW OF THE SEA AS APPLIED TO THE GOVERNANCE OF OFFSHORE RESOURCES A. Early Regulation of the Seas B. Determining the Extent of the Territorial Seas C. The Birth and Rapid Expansion of EEZs and the Continental Shelf in International Law D. UNCLOS and the New York Amendments 1. Enclosure in UNCLOS I 2. Resource Scarcity and UNCLOS II 3. The Politics of Governing the Deep Seabed in UNCLOS III 4. Resurrecting UNCLOS in the 1994 New York Amendments IV. WAS SELDEN RIGHT? CONTINENTAL SHELF CLAIMS AND THEIR IMPACT ON THE DEEP SEABED REGIME A. Extending EEZs to Nationalize Offshore Resources B. Regulating the Continental Shelf Under UNCLOS III 1. Polar Property Rights: Continental Shelf Claims and Emerging Arctic Governance 2. The Geopolitics of the High North 3. Developing the Top of the World 4. The Great Arctic Territorial Grab 5. Analysis of the Polar Environment: A Collective Action Problem that is Heating Up V. CONCLUSION I. INTRODUCTION

   The Deepwater Horizon oil spill, arguably the greatest environmental disaster in U.S. history (1) and costing more than $6 billion as of August 2010, (2) has a legacy beyond the estimated 207 million gallons of crude oil that are now slowly dissipating in the Gulf of Mexico. (3) Not only did the spill disrupt if not derail the negotiations on climate and energy legislation in the U.S. Congress while highlighting the myriad of costs associated with remaining addicted to oil, but it may also be a harbinger of things to come. (4) This is because one of the biggest territorial grabs in history is now underway. It is a scramble for offshore resources pitting nations around the world against one another in a race to secure energy reserves, including petroleum and methane hydrates that may contain more stored energy than all known deposits of fossil fuels. (5) In essence, nations are exploiting ambiguities in the United Nations Convention on the Law of the Sea (UNCLOS) Article 76 to expand their continental shelf claims into what had once been the "deep seabed," which is the seafloor existing beyond national jurisdiction. (6) This is in effect nationalizing part of this historic first area of the "transnational commons." (7) Already more than fifty-one overlapping claims have been made to the Commission on the Limits of the Continental Shelf (CLCS), (8) which is the body that decides the merits of "continental shelf" (9) claims by states parties to UNCLOS, with many more to come. (10) For example, most of the Arctic is continental shelf, meaning that eventually the entire Arctic Ocean will be allotted to one of the five Arctic States save for a one hundred square-mile area around the North Pole. (11) Similarly, Professor Klaus Dodds worries that Article 76 claims are being used to "re-territorialize the Antarctic and reinvigorate claimant and non-claimant States alike" (12) potentially creating a twenty-first century "Antarctic problem." (13)

   What is happening at the Poles is not unique. (14) Malcolm Shaw argues that there has been a gradual shift in the Law of the Sea (LOS) towards the enlargement of territorial seas, which have grown from three to twelve miles over the past forty years, coupled with the assertion of sovereign rights out to 200 miles through the extension of Exclusive Economic Zones (EEZs). (15) Further expansion of national control is now occurring through the CLCS process with continental shelf claims extending to more than 350 miles, meaning that more than forty percent of the world's oceans and over ninety percent of readily accessible offshore resources are already under the control of coastal states. (16) The incentive for this expansion is substantial: annual oil production from the U.S. continental shelf alone is valued at more than $300 billion. (17) Meanwhile, landlocked states are restricted to whatever share of resources they may secure from the diminishing deep seabed. (18) And due to the CLCS's limited resources, the organization is overwhelmed at a time when the world's largest "commons" (19) is being, at least in part, nationalized. (20) This nationalization is occurring along the lines advocated by John Selden nearly 400 years ago, when he advocated that the sea is not communal property but should instead be classified as private property and appropriated in the same way as land. (21) Given that the LOS continues to be in a state of flux due to the ambiguities in Article 76, more and more offshore resources are falling under national control, fragmenting governance and creating collective action problems. This challenges the supranational management of deep seabed resources under the common heritage of mankind (CHM) concept, which requires the peaceful, equitable use of commons resources through the International Seabed Authority (ISA). (22)

   This Article focuses on the relationship between the legal regimes governing offshore resources in the continental shelves and the deep seabed, particularly the extent to which continental shelf claims are encroaching on the deep seabed. The question of how well these legal regimes regulate resource exploitation will also be considered, along with an analysis of the underlying reasons driving change in these governance structures. I argue that the primary issue is one of whether vague rules, particularly UNCLOS Article 76, are working to incentivize sustainable, peaceful development of offshore resources.

   Three primary independent variables are driving the encroachment of continental shelves into the deep seabed and are consequently putting pressure on the legal regimes governing this part of the transnational commons. These include: (1) technological advancements opening up the continental shelves and the seabed to exploitation (23); (2) growing scarcity driving the demand for resources (24); and (3) domestic politics, such as in the U.S. Senate, as well as the structural variable of "multipolar" international affairs. (25) Together, these variables are catalyzing the partial nationalization of the seabed by incentivizing states to exploit the ambiguities in UNCLOS Article 76 to extend their territorial seas. (26) This process will be addressed generally, but with particular emphasis on the Arctic, since that area represents an end game in which near total nationalization of what once had been the deep seabed is already a de facto reality as a result of the extension of EEZs and pending CLCS claims. It thus offers an opportunity to examine the consequences of the expansion of closed seas. Other outstanding issues in the LOS generally and in the Arctic in particular, such as shipping and the opening of the Northwest Passage, although important, are beyond the scope of this Article. Antarctic outer continental shelf claims will be briefly analyzed to the extent that they underscore a tension between UNCLOS and the Antarctic Treaty System (ATS), opening up the potential for environmental calamities in the Southern Ocean like what is occurring in the High North as resource extraction expands.

   In economic terms, I ask how well the current legal regimes are functioning to avoid collective action problems. Legally, does the proliferation of continental shelf claims represent a challenge to the CHM concept and its principle of the supranational governance of common pool resources? And politically, is a "regime complex," i.e. "a collective of partially-overlapping and nonhierarchical regimes," (27) forming to govern offshore resources in this "international space," (28) and if so, what have been the consequences of this system to date? This analysis is critical since in many ways the oceans are the heart of the commons; they contain valuable resources, are the premier international highways, are a dumping ground for waste, and maintain the climate. Ensuring their peaceful development and equitable use is a critical case study in commons management.

   This Article is structured as follows. Part One introduces the independent variables of technology, politics, and resource scarcity and summarizes their impact on the governance of offshore resources. Part Two moves on to discuss the evolution of the LOS from its Roman Law origins to the 1994 New York Amendments of UNCLOS III, with special attention to the growth of the territorial seas. Finally, Part Three analyzes the recent spate of continental shelf claims to CLCS and their impact on the governance regimes applicable to offshore resources, using the Arctic and Antarctic as illustrative examples and the Deepwater Horizon spill as a case study throughout.

2. THE IMPACT OF TECHNOLOGY, POLITICS, AND RESOURCE SCARCITY ON THE GOVERNANCE OF OFFSHORE RESOURCES

   Three independent variables are driving the evolution of the governance regime for offshore resources including the encroachment of continental shelf claims. First, technological advancements are opening up the shelves and the seabed to exploitation. Second, domestic politics, as illustrated by the U.S. Senate, as well as the structural variable of multipolar international relations are making reaching multilateral agreement on the governance of the seabed difficult, catalyzing the growth of regime complexes. And third, growing scarcity is increasing the demand for offshore resources. Each variable will be introduced in turn, and then returned to throughout the Article.

   1. Technological Advancements

      "[T]echnology has caught up with desire. For most of human history, the ... global commons ... remained unclaimed due to a lack of technology for extracting their value and for establishing and sustaining property rights. To our peril, the technology for extracting value from these ... domains has developed more rapidly than have the appropriate legal mechanisms for...