Looking back to see ahead: UNCLOS III and lessons for global commons law

Abstract

The Third United Nations Conference on the Law of the Sea (UNCLOS III) provides valuable lessons for future formulation of law to govern global commons, areas that lie beyond the limits of national jurisdiction and to which all peoples have free and open access. Although endowed with the advantage of a certain degree of scientific certainty about the need for regulation of the ocean environment, UNCLOS III fell victim to a North‐South schism that impaired the search for consensus on important issues and undermined the final product of the negotiations. An examination of the UNCLOS III experience suggests that agreements that exclude specially affected states are unlikely to succeed, and points to a variety of advantages and disadvantages that come from linking several issues under one negotiating framework. The consensus approach to negotiation used at the Conference tends to expand the time and effort needed to reach a successful outcome, which can lead the negotiations themselves to be outstripped by technological or political developments. Finally, the UNCLOS III experience underscores the importance of global ideological and philosophical differences on the allocation of resources and environmental responsibility. Given these lessons, alternatives to the “parliamentary diplomacy”; strategy used at UNCLOS III are suggested, including a framework‐plus‐protocols approach, international coordination of national plans, regional arrangements, and strictly unilateral actions. While the comprehensive parliamentary diplomacy approach is useful because it recognizes the interconnectedness of ecosystems, in many situations one of the other approaches may increase the chance for a successful outcome. Whichever method is chosen, there is an emerging global recognition of the need for some action to be taken by the world community in combatting the destruction of the world's commons areas, which may be a positive sign for the future of environmental negotiations of this sort.