I. Continental Shelf as an Appurtenance

Continental shelf claims are a 20th century phenomenon. Until the end of the Second World War, there were only two maritime zones recognized by international law—the territorial sea and the high seas. The three-nautical mile cannon shot rule was established at the beginning of the 18th century and remained the customary rule determining the breadth of the territorial sea, mainly as a security and fishery zone, for two centuries. The high seas, vast areas beyond the narrow belt of the territorial sea, were accepted as an unclaimed and unclaimable open-access domain, common to all and governed by the principle of the freedom of the seas allowing free navigation and trade.Footnote ⁹ During the first decades of the 20th century, states began extending their claims to the seabed and its subsoil adjacent to their coasts to secure exclusive rights to the exploitation of sedentary fisheries and mining through tunneling.Footnote ¹⁰ The League of Nations Codification Conference of 1930 confirmed sovereignty over the territorial sea and included specific reference to “the bed of the sea in territorial waters and the subsoil” as an area of sovereign rights.Footnote ¹¹

The seaward orientation gained a new impetus as the immense hydrocarbon potential of the continental shelf was discovered and new drilling technology became available.Footnote ¹² The landmark assertion of the exclusive jurisdiction over the continental shelf and its natural resources far beyond the territorial sea was made by the United States of America in the Truman Proclamation of September 28, 1945. Following the first offshore drilling in the Gulf of Mexico, the proclamation broke the universality of the doctrine of the freedom and commonality of the seas based on two related concerns—control of natural resources on and below the seabed of the continental shelf—minerals and fossil fuels—and to augment the national stock of fish as well as to establish fisheries conservation zones. The push to assert jurisdiction prevailed over opposing voices arguing for the continuity of customary rules of the law of nations and criticizing the nationalization of the ocean space as inimical to free trade and peace.Footnote ¹³ The justification for the enclosure of the continental shelf invoked a common-sense argument of national possession based on geography. President Truman asserted that the shelf is an extension of the land mass and is “naturally appertaining to it” and that its potential wealth is, therefore, part of a resource pool lying within the national territory and subject to its jurisdiction and control.Footnote ¹⁴ He also argued for the necessity to control and manage marine resources—to utilize them prudently, protect them from destructive exploitation by those who have not contributed to their development and protection, and conserve them through regulation from the shore, claiming it is “reasonable and just” for a state to control its coastal domain.Footnote ¹⁵

The unilateral nature of the Truman Proclamation and the justification invoking common-sense national interests implied that every coastal state could make a similar claim.Footnote ¹⁶ By 1956, approximately twenty-five states had unilaterally claimed sovereignty or jurisdiction over the shelf or exclusive rights to mineral resources in it.Footnote ¹⁷ These claims reflected an emerging consensus on the justification of the exclusive control of coastal states over the continental shelf. The 1958 United Nations Convention on the Continental Shelf confirmed this consensus by granting coastal states exclusive jurisdiction over offshore seabed resources—non-living and living sedentary species to the depth of 200 meters—and recognized the rights to the continental shelf as inherent and original, not depending on the actual occupation or express proclamation.Footnote ¹⁸

The extension of sovereign rights to natural resources onto the continental shelf is based on the grounds of a distinct and novel principle—the principle of appurtenance. In property law, the term appurtenance means that something legally belongs to another, larger and more valuable, entity as an immovable or fixed item; and that property rights to appurtenant objects, implied in property rights to the larger entity, pass with the principal property upon sale or transfer.Footnote ¹⁹ Grounding continental shelf claims on the natural appurtenance of the shelf to the territory of the coastal state is a novel way of claiming sovereign jurisdiction over a geographic domain. Traditionally, legal grounds for the recognition of claims over territory included conquest, discovery and occupation, cession, and also accretion and prescription.Footnote ²⁰ Whereas conquest and cession recognized the possibility of a loss of a territorial claim by a previous sovereign through military defeat or by a contract, discovery and occupation claims were mainly justified by the principle of terra nullius—the land belonging to none.Footnote ²¹ Yet, territorial claims invoking terra nullius—an unclaimed land available to a lawful appropriation—also required effective occupation and the ability to establish and enforce such a claim.Footnote ²² Premised upon the actual use of land, settlement, effective control over the population, and the ability to defend the claim against other claimants, occupation has come to be accepted as the most potent basis for the acquisition of the territorial title.Footnote ²³

Continental shelf claims have very different grounds. They are based on a scientific view that there is an area contiguous to the coast in the geological sense and that this area can be considered as the submerged prolongation of land. The view of the geological unity of the land and the seafloor postulates the objective, scientifically proven connection of the territory to the continental shelf. The states claim they are entitled to appropriate the continental shelf’s natural wealth and prevent others from doing so even in the absence of their ability to physically occupy it or even the capacity to extract resources from it.Footnote ²⁴ This legal notion of the continental shelf as a realm of sovereign rights to natural resources based on the appurtenance principle has been confirmed and explicitly spelled out by the International Court of Justice in the North Sea Continental Shelf cases and then restated in UNCLOS.Footnote ²⁵ The International Court of Justice decision confirmed that coastal states have an inherent and original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It stated that these rights “exist ipso facto and ab initio, by virtue of its sovereignty over the land,” and as an extension of it through the exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.Footnote ²⁶

II. UNCLOS and Staking Out Boundary Disputes

The legalization of the continental shelf regime in the UN Convention on the Law of the Sea (UNCLOS)Footnote ²⁷ is part of the broader and very consequential legal reform concerning the expansion of sovereignty into the ocean commons. UNCLOS establishes three distinct zones of sovereign rights of coastal states in their adjacent maritime areas: The territorial sea and the contiguous zone,Footnote ²⁸ the exclusive economic zone,Footnote ²⁹ and the continental shelf. Concerning the continental shelf, UNCLOS confirmed the existing consensus that states have an inherent right to exclusively use natural resources in the area, which is considered an extension of the land territory seaward. Article 76 defines the continental shelf as “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory,”Footnote ³⁰ and Article 77 confirms that the rights of a coastal state are exclusive and inherent, not depending on its effective or notional occupation or on any express proclamation.Footnote ³¹

Two aspects underscore the legal innovation of the continental shelf. First, the continental shelf is a hybrid with respect to territory, sovereignty, and jurisdiction. Although defined as the natural prolongation of the territory of a coastal state, the legal regime of the continental shelf is different from the regime on a state territory. The states do not exercise a typical bundle of rights associated with territorial sovereignty on the continental shelf—territorial integrity and non-intervention, full territorial jurisdiction, or border control. In a coastal state’s continental shelf, other states are entitled to lay submarine cables and pipelines and navigate through its superjacent waters and fly above them.Footnote ³² The jurisdiction a state exercises within the continental shelf is limited to “sovereign rights for the purpose of exploring it and exploiting its natural resources.”Footnote ³³ These rights are exclusive and inherent,Footnote ³⁴ but they concern a narrow category of goods. Article 77 specifies the natural resources of the continental shelf that are subject to sovereign rights as mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the so-called sedentary species—clams, oysters, sponges and corals, and crustaceans.Footnote ³⁵

Second, the legal construction of the continental shelf is expressed in how its boundaries are set. The dividing lines and outer limits are not physically entrenched on the seabed but drawn on maps and confirmed through a highly formalized process of the application and review by the Commission on the Limits of the Continental Shelf and finally settled through bilateral negotiations or tribunal decisions in cases of disputes. The cartographic boundaries of the continental shelf do not map neatly onto underwater geography. Article 76 of UNCLOS sets the default boundary of the continental shelf to the outer edge of the continental margin or at a distance of 200 nautical miles from the baselines where the outer edge of the continental margin does not extend up to that distance.Footnote ³⁶ In theory, the shelf can thus extend beyond the natural break of the continental rise into the abyssal plain of the deep seabed. When the geological margin extends beyond 200 nautical miles from the baseline, the outer edge can be established by one of the two formulas defined in Article 76.Footnote ³⁷ Overall, the continental shelf’s outer limit shall not extend to the distance of more than 350 nautical miles past a state’s baseline or 100 nautical miles from its 2,500-meter isobath—the line connecting points 2,500 meters below the water’s surface—whichever is more favorable to the applying state.Footnote ³⁸

How to set the boundaries of the continental shelves—what is the breadth of the continental shelf and how to settle the lines between states with adjacent or opposite coasts—is one of the main ambiguities of the UNCLOS regime of the continental shelf.Footnote ³⁹ Vague rules notwithstanding, the efforts to delineate continental shelf boundaries currently occur in most oceans and seas as all coastal countries seek to extend the continental shelf to the maximum possible distance and thus acquire exclusive rights over mineral and fossil fuel deposits and other potentially valuable resources of the seafloor over as large an area as legally possible. Ninety-five applications for an extended continental shelf have been filed with Commission on the Limits of the Continental Shelf since the first submission was made by Russia in 2001.Footnote ⁴⁰ Many claims of neighboring countries overlap—China’s and Japan’s, Japan’s and South Korea’s, Japan’s and Russia’s, and Malaysia’s and Indonesia’s, to name just a few.Footnote ⁴¹ As in the Arctic, a tense staking out of conflicting claims to large continental shelves is taking place in the South China Sea, where overlapping claims of Malaysia, Vietnam, and the Philippines clash with China’s controversial and implausible claim that almost all of the South China Sea is the domain of its sovereignty.Footnote ⁴²

According to Østhagen, close to 40% of all maritime disputes remained unresolved—not just over margins of the continental shelf—by the end of 2020.Footnote ⁴³ Most disputes have been settled through lengthy bilateral negotiations,Footnote ⁴⁴ and some have been and will have to be settled by tribunals.Footnote ⁴⁵ In any case, boundary setting is a technical process relying on scientific—geographic, cartographic, etcetera—and legal principles. The states invoke science to stake out their claims and adhere, for the most part, to the available legal procedures and rulings, which greatly contributes to the fact that disputes over underwater zones are settled peacefully. The scientific rationalization and legal proceduralization endow the process of continental shelf division with legitimacy based on rules and procedures of international law. Yet, they also obscure the fact that there is a momentous underwater resource grab happening on the seafloor,Footnote ⁴⁶ the result of which will be the extension of sovereign control into the last remaining resource frontiers of our planet and, hence, the shrinking of the global ocean commons.

In the process of the division of the seafloor, individual states seize large chunks of resource domains based on their contingent geographic features and advantages—the size of the territory, the coastal length, and the features of underwater geography—and extend their land-based extractive regimes into fragile and already massively anthropogenically impacted marine ecosystems. The division of the seabed into zones of national jurisdiction adds to already established exclusive economic zones, in many cases expanding resource sovereignty beyond the default boundary of 200 nautical miles.Footnote ⁴⁷ This extension of sovereign resource rights has far-reaching consequences and raises urgent questions of distributive, political, and ecological justice. These will be discussed in the following Part II.

I. Permanent Sovereignty Over Natural Resources

The continental shelf is one of the most remarkable inventions of international law. As already mentioned, it is not a pure extension of the territory. States do not have full and complete territorial sovereignty over the continental shelf or a full bundle of sovereign rights. The shelf boundaries, drawn on maps and approved by international bodies or tribunals, separate zones of rights with a functional, limited character. The continental shelf, to use Daniel Lambach’s term, is a “functional territory” created for particular purposes and it allows a mode of governance with functionally limited rights and duties.Footnote ⁴⁸ The jurisdiction applies explicitly to natural resources, not over the seabed and its subsoil as such. Yet, from the point of view of rights to natural resources, sovereignty is full and unmitigated, exactly as on state territory.

Sovereign rights to marine natural resources held by states on the continental shelf are not an invention of the law of the sea. They reproduce and expand the permanent sovereignty over natural resources (PSONR)—the principle of international law that has been attached to the sovereign state status during the process of decolonization and the postwar reform of international law.Footnote ⁴⁹ Adding sovereignty over natural resources to the bundle of sovereign rights was meant to fulfill two main objectives. On the one hand, PSONR was meant to rectify the colonial injustice with respect to natural resources and grant newly independent states immunity against unjust appropriations of land and resources by other states or foreign companies, for example, through forceful imposition of private property rights.Footnote ⁵⁰ On the other hand, PSONR aimed at securing exclusive access to economic benefits arising from the exploitation of natural resources for new and developing countries and reinforcing their capacity for political self-determination and economic development.Footnote ⁵¹

These two main objectives explain why PSONR has given states the supreme jurisdictional authority over natural resources within their territory and a broad range of powers and immunities. The powers implied in PSONR include the right to freely decide on the use of natural resources, to manage resources through national policies, to legislate and adjudicate property rights and management rules, to sell natural resources, to decide on the terms of foreign investment and extraction contracts, and also to nationalize foreign property.Footnote ⁵² As some legal theorists pointed out, sovereignty over natural wealth and resources is structured as a standard property right.Footnote ⁵³ It includes a full bundle of rights usually associated with property rights—the right of access, the right of exclusion, the right of management and regulation, the right of withdrawal, the right of alienation, and the right to derive income from a given asset.Footnote ⁵⁴

As Nico Schrijver pointed out, PSONR is a strongly rights-oriented prerogative.Footnote ⁵⁵ The emphasis on powers, liberties, and immunities prevails over the emphasis on duties and limits. The very core of PSONR is the right to freely exploit natural resources, use them for national development, and manage them pursuant to national policies. There are several limits on these rights, and they are mainly linked to the following concerns of the postwar global politics and the economy—to reinforce the sovereignty of newly independent states, to enhance individual states’ capacity for economic development, the facilitation of trade with unevenly dispersed natural resources, and the protection of private companies and investors who actually extract and deliver raw materials to the world economy.Footnote ⁵⁶ By and large, as many political theorists also noted, PSONR grants states exclusive and supreme political control over natural resources and wealth on their territories, effectively unlimited by demands of global distributive justice and political legitimacy.Footnote ⁵⁷

The application of sovereign rights to marine natural resources to constructed national maritime zones—not only the continental shelf, but also the exclusive economic zone—has to be seen within the dynamic tendency to deepen and broaden the scope of the permanent sovereignty over natural resources, both in structural terms of claiming as many rights as possible but also in the spatial sense of extending them into new geographic areas. Upon discovering new opportunities and possibilities for the extraction of valuable raw materials in the sea, states sought to broaden their control over marine resources and replaced the classical freedom of the high seas with the law of appropriation and protection of exclusive national zones. For developing and newly independent states, there was an additional motivation to curb the liberty to appropriate natural resources from the commons by the economically and politically powerful and technologically advanced and prevent a highly unequal resource grabbing.Footnote ⁵⁸ The reconstitution of the control over maritime areas and the application of sovereign rights to marine natural resources thus mirrors the justification, structure, scope, and operation of the PSONR system. This dynamic expansion of sovereignty over natural resources beyond territory has consequences that I propose we critically assess from three main perspectives: The perspective of global distributive inequality, the perspective of political defects in the exercise of resource rights, and the perspective of a conflict between the legal and economic reification of natural resources and demands for environmental protection of marine ecosystems. This critical assessment of the extension of sovereign rights to natural resources from these three perspectives is presented in the following sections.

II. Global Distributive Inequality

The UNCLOS reform, as suggested above, was driven by distinct distributive justice aspirations. UNCLOS reforms were negotiated within the broader process of the decolonization and the reconstitution of the international order and simultaneously with the PSONR reform that mainly sought to grant new states the immunity against unjust—colonial—appropriations of land and natural resources.Footnote ⁵⁹ The sovereign rights in the continental shelf seek to advance similar objectives—to secure coastal states’ opportunity to exploit natural resources in the marine areas adjacent to their territory. From the perspective of the ocean commons, governed mainly by the principle of the freedom of the seas until the UNCLOS reform, the extension of sovereign rights seaward can also be seen as an effort to avoid a distinct “tragedy” of the global commons—the tragedy of an unequal appropriation of the resources by a few. National zones of sovereign rights beyond territories were seen as an effective bulwark against an unlimited and highly inequitable appropriation of marine natural resources by industrialized states and extractive industries from the Global North, mainly through large-scale industrial fishing and offshore extraction of oil and minerals.Footnote ⁶⁰

The reform did achieve the objective of granting each coastal state the zone of exclusive rights to marine natural resources, thus preventing a free, first come, first served exploitation of marine resources in areas where most valuable living and mineral resources are concentrated—in shallow waters and on seafloors near the coasts. Still, the allocation of sovereign rights has also led to a highly disproportionate division of maritime space and wealth from the ocean commons among individual states based on a combination of contingent geographic factors—territorial size, sea access and coastal length, and control over overseas territories and uninhabited islands. The UNCLOS rules for the establishment of the continental shelf and the exclusive economic zones have enabled large countries with long coastlines and overseas territories to seize disproportionately larger shares of the marine space.Footnote ⁶¹ Smaller countries with short coastlines got much smaller shares and landlocked countries have come out empty-handed, with no access to a significant share of the potential continental shelf wealth.Footnote ⁶² Notable is the case of Bolivia, which became landlocked as a result of the annexation of part of its territory by Chile during the War of the Pacific from 1879–1883. During the entire 20th century, Bolivia sought to obtain some form of sovereign access to the Pacific Ocean through negotiations, so far with no success.Footnote ⁶³

The largest continental shelf is now possessed by countries with the largest territories and longest coastlines: Russia, Canada, Australia, United States, Indonesia, United Kingdom, Argentina, Brazil, France, Denmark/Greenland, Norway, Mexico, and India.Footnote ⁶⁴ These countries control sizable territories and coastal regions, and these geographic features have made it possible for them to seize comparably bigger parts of the ocean commons through the—extended—continental shelves and also exclusive economic zones.Footnote ⁶⁵ The example of Russia is outstanding and is worth mentioning in greater detail. Russia is the largest country in the world by landmass, with a total area of 17.1 million km². It is also a country with enormous deposits of many valuable raw materials—it has the largest reserves of natural gas and diamonds, the second largest reserves of coal and gold, and remains one of the most significant producers and exporters of oil. Natural resources, hydrocarbons in particular, are the main source of income and hence the power and wealth of the Russian state, accounting for an unprecedented 10.7% of its GDP.Footnote ⁶⁶ Due to its long northern coastline of over 24,000 kilometers, Russia now controls the Siberian Shelf, the largest continental shelf on Earth, believed to hold huge offshore reserves of hydrocarbons. Expanding the territory by about 10% of its territorial size, Russia’s continental shelf covers more than half of the Arctic seabed and adds an enormous resource domain to its already vast territory and resource wealth.

Similar accounts can be given about other large countries with long coasts and the control over barren islands and archipelagos usually established during the colonial era. Australia significantly increased its resource holding through national maritime zones, not only due to its size and geography but also due to the control of the Heard and McDonald Islands—uninhabited islands north of eastern Antarctica which sit on an underwater mountain range now recognized as a natural part of the islands’ territory. Since 2008, Australia has controlled extended continental shelves in nine areas around the mainland and in the sub-Antarctic. Australia’s “marine estate,” as one commentator put it,Footnote ⁶⁷ recognized by Commission on the Limits of the Continental Shelf after decades of geochemical, geochronological, and bathymetric data collection, covers an area of 11 million km²—an area greater than the Australian landmass.Footnote ⁶⁸ The new seafloor areas, especially the sedimentary basin systems, are believed to be significant petroleum exploration areas. They add to Australia’s existing affluence in mineral and energy resources, which are the major contributors to Australia’s economic wealth. As in other cases—the United States, Canada, the United Kingdom, Norway, and Brazil—adding large portions of the marine environment to territorial resource sovereignty not only increases resource holdings, and hence economic wealth, but also significantly reinforces power, influence, and ability to advance geopolitical interests.Footnote ⁶⁹

We do not have to invoke a specific theory of global distributive justice or a substantive distributive principle with respect to natural resources to state that the maritime zones of sovereign rights have not divided the ocean commons into equitable shares; and that the reform has, in fact, led to a highly unequal division of marine space and resources among countries, such that reproduced the existing inequality of geographic conditions.Footnote ⁷⁰ The UNCLOS reform basically extended the coastal states’ territories into the ocean, thus, to a large extent, reproducing and entrenching the contingent political geography characterizing our state-centric and territorial international system. Although formally equal—endowed with sovereign equality and an equal set of sovereign rights—the states composing the international system are otherwise very unequal. One of the key differences concerns physical features and geographic conditions—the size of the territory, the length of the coast, the control over overseas islands and archipelagos, and the amount of natural wealth.

Why is it questionable to use the existing political geography as the basis for the redistribution of space and resources from the global commons? The geographic features of sovereign states are neither a morally neutral natural phenomenon nor a distributively insignificant fact. First, the political map of our world is a result of a long history of territorial realignments that happened through highly contingent historical acts and now illegal methods, such as conquests, colonial settlements, dubious land purchases or treaties of cession, and other morally suspect forms of the recognition of territorial sovereignty.Footnote ⁷¹ Territories and their borders, as Thomas Pogge put it, are “historically arbitrary” and “indelibly tainted with past unjust conquests, genocide, colonialism, and enslavement.”Footnote ⁷² The current territory of the United Kingdom, for example, is the outcome of the colonial conquest and settlement, as well as dynastic inheritance. The United Kingdom still controls colonial-era outposts such as the Falkland Islands, South Georgia, and the Tristan da Cunha archipelago in the South Atlantic Ocean, and claims zones of sovereign rights around them—exclusive economic zones and the continental shelf.Footnote ⁷³ The United States came about through the expansive and violent settlement of vast indigenous territories by immigrants from Europe.Footnote ⁷⁴ Although there are compelling pragmatic reasons to accept the current territorial division and state borders as settled,Footnote ⁷⁵ it is at the same time important to remain sensitive to their historical contingency and morally problematic ways through which they were established.

Second, even if we concede that the system of territorial states is now accepted, by and large, as given and immutable, it is important to recognize that the uneven territorial division of the globe is a fact with significant distributive consequences. Large territories with large maritime access are the source of power, wealth, capacity, and geopolitical and strategic advantage.Footnote ⁷⁶ Bolivia, landlocked through a war, argued in its petition to the ICJ that the lack of sea access has had harmful economic effects due to slower trade and more expensive imports due to logistical costs and tariffs that are much higher than the average in the region.Footnote ⁷⁷ Territorial size enhanced by maritime holdings increases a country’s natural capital and holdings of valuable natural resources that provide important sources of income and economic wealth. Unsurprisingly, the biggest countries in the world—Russia, the United States, China, India, Brazil, and Australia—have the highest value of natural capital—calculated in trillions of dollars.Footnote ⁷⁸ These physical and geographic characteristics are a form of endowments that are, as Charles Beitz put it, “arbitrary from a moral point of view”Footnote ⁷⁹ and constitute inequalities that are problematic from the perspective of global distributive justice—they provide an undeserved advantage for the countries, contribute to the economic and political inequality among them, and should therefore be corrected through a redistributive system aimed at equalizing opportunities.Footnote ⁸⁰

The inequality of natural resource holdings among countries and the potential redistribution of unevenly allocated natural wealth or its monetary value through global taxes have preoccupied quite a few global distributive justice thinkers who, for the most part, focused on natural resources on state territories, not specifically on how to distribute previously unowned wealth from the global commons so that it rectifies the existing inequality.Footnote ⁸¹ That is precisely the point I seek to emphasize. There is an already existing inequality, and it relates, among other things, to the physical features of states and the territories they occupy. Yet, this uneven geography—contingent and morally arbitrary—has been reproduced in the process of the reconstitution of the ocean commons into national zones controlled by sovereign territorial states. Favorable geographic conditions such as territorial size and coastal length, an unfair advantage with respect to getting a share from the commons, have enabled large states to massively expand their already big territorial domains of resource sovereignty. This division of ocean space and resources entrenched rather than mitigated the existing inequality among countries. This result undermines the law of the sea aspirations to not only prevent the tragedy of inequality in the free and unregulated appropriation of the global commons by the powerful and technologically advanced but also to secure an equal opportunity to use common natural resources for all countries regardless of the level of economic and technological development.

There are several reasons why the law of the sea reform followed the logic of existing division into sovereign territories and re-described the territorial map into the ocean global commons. As discussed above, the main justificatory rationale of the continental shelf reform has been to grant each coastal state the zone of national sovereignty to protect its exclusive right to exploit its resources—resources in the zones constructed as naturally attached to land territories.Footnote ⁸² The appurtenance principle justifying the claim to the continental shelf reflects an inherent geopolitical drive of states to territorialize empty and ungoverned spaces and subdue available frontiers to prevent rivals from getting more than a fair share, as well as an economic imperative to accumulate the maximum available resources.Footnote ⁸³ Moreover, as Roberts and Sutch point out, the reconstitution of the global commons through the state-centric international system has followed the logic of terra nullius—the view that land and resources are either already owned and hence under somebody’s irrevocable exclusive jurisdiction, or unowned and thus available for acquisitionFootnote ⁸⁴ —in this case by states that are the main actors authorized to assert effective control over previously unowned domains.Footnote ⁸⁵

The terra nullius principle assumes that the global commons and their natural resources have not been subject to previous unjust and inequitable use that may require a correction through a redistributive scheme designed to rectify the past injustice. This assumption is, however, historically inaccurate and misleading, and it makes the current law of the sea division of the ocean commons all the more problematic. The seas have been used for centuries in vastly unequal ways by the privileged, advanced, and powerful states and their trading companies and private actors, for example, in the system of transatlantic slavery and the Triangle Trade.Footnote ⁸⁶ The division that would have taken this past injustice and the disproportionate use of the ocean commons into account would have to look very different. For example, as Roberts and Sutch suggest, the better-off who have drawn on more than the fair share of common resources forgo their claim in favor of those who have drawn on less or nothing in the past.Footnote ⁸⁷ Had the reform taken into account both the past injustice and the historically disproportionate use of the commons and the current inequality, a very different division would have to be devised.

Instead of addressing the past injustice and inequality in the use of the ocean global commons, the new system of international law entrenched inequalities characterizing the way the world has been and continues to be divided. The problem to be highlighted is that sovereign rights to natural resources make it difficult, if not impossible, to redistribute or otherwise share the unevenly allocated wealth. Once a resource is under the exclusive jurisdiction of a state, all other states and their people are permanently excluded from access to, use of, or benefit from the sovereign domain and its resources.Footnote ⁸⁸ As I argued above, sovereign rights to natural resources are structured as standard property rights, making states essentially individual and exclusive owners of the raw materials within their territorial boundaries and now also maritime zones. The objectives justifying the existence of sovereign rights to natural resources—immunity against dispossession, protection against unjust appropriation, and exclusive access to economic benefits—imply that states are compelled to treat their resource domains as exclusive properties and use them to advance their national interest and economic development.

It is in sovereign resource rights’ DNA, so to speak, that natural resources are not to be shared, redistributed, or co-managed with others. The fact that sovereign rights have not been shaped by global redistributive and collective management demands is a serious distributive problem in the context of the fact that the UNCLOS reform brought most of the world’s natural wealth under the control of sovereign states.Footnote ⁸⁹ Therein lies the tragedy of inequality of the global commons: Most of its known and extractable wealth has been divided among states, permanently subject to sovereign—property—rights that preclude the possibilities of redistribution, shared use, and collective management for the global public good and are the major obstacle for the mitigation of global inequality.

III. Unjust Politics of Sovereign Resource Rights

This section looks at sovereign rights from another perspective—the perspective of domestic politics—and asks whether these rights promote the uses of natural resources by governments that are politically legitimate, advance the well-being of the people, and fairly allocate benefits and burdens among relevant stakeholders within states—individuals, marginalized or disadvantaged groups, etcetera. There has been a considerable amount of literature critically addressing the exercise of sovereign resource rights from this particular perspective of justice, sometimes labeled accountability problem or authoritarian resource curseFootnote ⁹⁰ or the problem of human rights.Footnote ⁹¹ Overall, political theorists have criticized sovereignty over natural resources as a powerful and unconstrained prerogative that is often abused by corrupt or illegitimate and human rights-violating governments and linked to the perpetration of injustice—repression, authoritarianism, embezzlement of public funds, and environmental injustice.Footnote ⁹² What is at stake, and why do sovereign rights to natural resources often produce such outcomes?

Sovereign rights are a distinct category of rights. They are held by political entities recognized as sovereign states and follow from their international legal status.Footnote ⁹³ Sovereign rights have a specific quality—they belong to juristic entities—states—which are entities in their own right, with a separate legal status from societies, groups, and individuals who live in them and who are the right-holders in their own right—for example, holders of the collective right to self-determination or individual human rights. Sovereign rights are what Peter Jones called corporate rights.Footnote ⁹⁴ A corporate right, according to Jones, is ascribed to a juristic entity, states in this case, irreducible to its constitutive part(s) and exercised through institutions—governments—acting on their behalf.Footnote ⁹⁵ Corporate rights differ from collective rights, which are rights held by individuals jointly or collectively, reflecting the inalienable rights they hold individually and as a group.

The term corporate right fittingly describes sovereign rights to natural resources implied in the PSONR system. There has been a discussion in the literature on PSONR about whether sovereign rights to natural resources actually belong to states or to the people—and whether sovereign rights to natural resources could or should actually be interpreted as collective rights of the people. In his account of the history of the PSONR system, Schrijver points out that initially, during the 1950s, the right to permanent sovereignty was alternatively thought to be vested in peoples and nations and underdeveloped countries.Footnote ⁹⁶ This emphasis emerged in the context of the debates about the promotion of the economic development and self-determination of the peoples, where the principle of permanent sovereignty over natural resources was raised and linked to collective and individual human rights.Footnote ⁹⁷ As the decolonization process progressed, Schrijver argues, the emphasis on peoples and nations and the connection with people’s self-determination diminished and gradually shifted to developing countries.Footnote ⁹⁸ The view that the people might hold resource sovereignty as a collective right was suppressed. During the 1970s, as the process of decolonization ran its course, the states became the primary subjects of the right to permanent sovereignty.Footnote ⁹⁹

What Schrijver calls the “étatist orientation”Footnote ¹⁰⁰ of the PSONR system can be demonstrated by the subsequently established rights and duties following resource sovereignty which have been ascribed to states, not to the people. These rights and duties refer, as I suggested above, to the right to use natural resources freely for national economic benefit and development. The limits relate mainly to relations and financial obligations to investors, the duty to cooperate for international development, and the duty of the sustainable use of natural wealth and resources. The view that states exercise their sovereignty over natural resources in accordance with the individual and collective rights of the people and within limits and constraints implied in constitutionalism, democracy, and human rights has not made an impact in the process of shaping the scope of the PSONR.Footnote ¹⁰¹ This view has not been promoted in legal and economic regimes developed on a global level through which sovereignty over natural resources gained content—the policies of global financial institutions, such as the World Bank and the IMF; WTO trade rules; or international economic and foreign investment law regulating the relationship between states and private corporations.Footnote ¹⁰²

Resource sovereignty has become a powerful discretionary state prerogative exercised without the constraints implied in democracy and human rights and unlimited by demands of procedural and domestic distributive justice. This feature has been reinforced by domestic constitutional provisions. Most constitutions in the world that include provisions concerning natural resources make natural resources property of the state; the constitutional provisions do not link ownership of natural resources to human rights or specify governance principles.Footnote ¹⁰³ Autocratic, undemocratic, and human rights-violating exercise of sovereignty over natural resources is, in fact, an endemic political defect in the exercise of resource sovereignty. The phenomenon has been mapped by the vast field of the resource curse literature and by global NGOs, including Global Witness, Human Rights Watch, and more.Footnote ¹⁰⁴ It was also critically analyzed by political theory.Footnote ¹⁰⁵ Leif Wenar provides a detailed account of many resource-rich states where governments are either unconstitutional or systematically violate human rights and use natural resources for the private benefit of the ruling elite and the perpetration of an unjust, corrupt, repressive rule that is funded and maintained by resource rents.Footnote ¹⁰⁶ In these states, the people often suffer combined harms caused by authoritarianism and political repression, violence and civil conflict, poverty and low human development, and cannot be said to be meaningfully benefiting from their countries’ possession of natural wealth.Footnote ¹⁰⁷

Control over natural resources by an unaccountable, authoritarian power, and corrupt oligarchic networks is by no means a marginal problem. Oil, one of the most valuable raw materials and commodities, is, to a great extent, controlled by undemocratic regimes. Of the top ten oil-producing countries,Footnote ¹⁰⁸ six are unfree, some of them at the very bottom of the Freedom House list of the global freedom score—Saudi Arabia, Russia, China, Iraq, Iran, and the United Arab Emirates.Footnote ¹⁰⁹ There is no democratic country in the Organization of the Petroleum Exporting Countries (OPEC), which together hold about 70% of the world’s total proved crude oil reserves. The top OPEC countries account for about 29% of total world crude oil production.Footnote ¹¹⁰ The most resource-rich countries of Africa,Footnote ¹¹¹ such as Angola, Equatorial Guinea, the Democratic Republic of the Congo, Nigeria, Guinea, Gabon, Congo, Chad, and Mali, are unfree.Footnote ¹¹² Venezuela, Iran, Kazakhstan, Turkmenistan, and Azerbaijan are other undemocratic and authoritarian countries controlling sizable natural wealth.Footnote ¹¹³ The politics in these countries do not conform to the norms of constitutionalism and democracy. Elections are not free and fair, there is repression of dissent and opposition, and there is violence by security forces. Other widespread human rights violations are endemic, as well as patronage and corruption in the economy, in natural resource sectors in particular. Natural resources are usually controlled by a ruling class and corrupt, oligarchic structures hidden behind state-owned companies. The granting of concessions, negotiation of contracts with foreign companies, and revenue allocation occur outside of public oversight and accountable institutions. Resource wealth is appropriated by the political and economic ruling class and plays a key role in sustaining their hold on power.

Sovereign rights to marine natural resources are exercised by states in their national maritime zones in much the same way—within the same political and economic institutional structures and with the same defects I have just described. The serious flaws of resource politics are extended and reproduced by countries in their national maritime zones—authoritarian and human rights-violating governments; corruption and unaccountable control of resource rents and revenues; the issues of accountability, transparency, and oversight concerning foreign investment and extractive companies; the fairness regarding the distribution of social and environmental impacts of the extraction; and broader democratic participation in shaping resource policies. Let me briefly consider the development of offshore hydrocarbon resources on the continental shelf to support the argument.

Offshore procurement of fossil fuels has grown considerably over the last few decades, representing circa one-third of the global crude oil output and one-fourth of global gas production today.Footnote ¹¹⁴ The Persian Gulf is the region that holds approximately two-thirds of the world’s estimated proven oil reserves and one-third of the natural gas reserves.Footnote ¹¹⁵ It is also where the world’s largest offshore oil fields are located on national continental shelves. Most states in the region—Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emerates, Oman, and Iran—are monarchical petrostates in which unaccountable ruling elites and oligarchic networks control oil-dependent economies. The revenues generated by hydrocarbon wealth benefit the few and are used to maintain autocratic repressive rule and to provide military and financial support for selected parties in various regional conflicts. Africa, Angola, Nigeria, Gabon, and Equatorial Guinea are now major offshore oil producers and, at the same time, textbook examples of the resource curse—they are resource-rich and resource-income-dependent countries that are unfree, have dismal human rights records, and have economies based on corruption and patronage. Although the populations suffer from poverty, gender and other discrimination, violence, and poor access to healthcare, education, and other social services, the oil wealth benefits the ruling political networks and the companies and investors. Angola, now Africa’s top oil producer mainly from its continental shelf, is a particularly telling case of the abuse and mismanagement of its oil wealth extracted from the continental shelf.Footnote ¹¹⁶

There are also democratic countries procuring hydrocarbons offshore. The United States owns the largest number of oil rigs in the Gulf of Mexico. Together with Brazil, Mexico, and Norway, it is among the top five offshore oil producers in the world, with the top spot held by Saudi Arabia.Footnote ¹¹⁷ In these countries, natural resources are managed by public authorities with greater compliance with norms and demands of procedural and distributive justice implied in human rights. However, there are persisting issues. For example, the problem of the transparency of the terms of contracts with the extractive companies and investors and the environmental justice deficits—the lack of sufficiently inclusive participation in the making of resource policies and the issues of equity and fairness concerning the distribution of social and environmental costs of extraction. The rule of law, democratization, and respect for human rights are the main ways to enhance the legitimacy of the exercise of sovereign rights to natural resources and to meet the demands of procedural and domestic distributive justice. Political and global justice theorists such as Thomas Pogge, Leif Wenar, and Shmuel Nili have indeed focused on the democratization and clean trade reforms towards autocratic and human rights-violating governments as the main remedies for an unjust exercise of resource sovereignty.Footnote ¹¹⁸

The question arises of whether the democratization of resource politics and more extensive respect for human rights would meet the demands of justice for the exercise of rights to natural resources in the ocean commons. Norway, a country labeled an “anomaly” by Wenar due to the country’s exceptionally strong democratic institutions, redistributive welfare policies, and the creation of a sovereign wealth fund that preserves oil wealth for future generations,Footnote ¹¹⁹ has just approved the plan to open its continental shelf near Svalbard archipelago for commercial deep-sea mining of minerals. This decision, allowing extractive companies to apply for licenses, is justified by the need to secure a stable and secure source of rare earth elements—the supply of which has hitherto been dominated by China and Russia—that are needed for electric vehicle batteries, wind turbines, and solar panels—the transition to renewable energy. The decision has been met with wide criticism from scientists, environmental NGOs, and other countries, including the EU. The main argument against seabed mining is that too little is known about the pristine deep-sea ecosystem—its biodiversity and its interactions with other marine ecosystems and its role in the health of the larger ocean ecosystem—to safely mine the sea floor.Footnote ¹²⁰ The European Parliament issued a resolution calling for efforts to meet the demand for rare earth elements through recycling and pursuing a circular economy and reaffirmed its support for a moratorium on seabed mining.Footnote ¹²¹

The conflict over how to weigh the potentially destructive ecological impacts of deep seabed mining against economic benefits indicates that the extraction of natural resources from the ocean commons may be raising additional demands of justice, such that complement norms of procedural and distributive justice we associate with resource regimes and policies on state territories. These demands of justice might be distinct from the norms following from democracy, constitutionalism, and human rights. They arise because the seabed is distinct from state territory—it is an uninhabited ecological space and part of complex and interconnected marine ecosystem. The seabed harbors great and unknown biodiversity and forms of life and provides non-excludable but depletable benefits to all life on Earth. For example, it provides a habitat for the community of organisms called benthos, and it has carbon sequestering capacities. Ocean seabed raises a question of the just use of an ecological space with regard to potential mineral mining. Ecological space cannot be seen as a mere empty resource frontier awaiting human appropriation and extraction. It is a domain valuable in its own right, has its own integrity, and is vulnerable to human intrusion and the disruptive impact of extractive activities. Even perfectly democratic and human rights-conforming resource sovereignty does not seem to fully fulfill the expectation to do justice to the continental shelf seen as an ecological space and not as a resource frontier. The reasons why sovereign rights conflict with the demands of ecological justice are discussed next.

IV. Legal and Economic Reification of the Marine Environment

There is another aspect to sovereign rights to natural resources that is relevant for the assessment of the impact this regime has had on the continental shelf—and the marine environment more broadly. It concerns what I call the legal and economic reification of parts of ecosystems. It is a consequence of the fact that sovereign rights to natural resources legally construct natural resources as extractable units and turn them into economic goods and objects of exclusive and nearly unlimited property rights. This legal and economic reification undermines the possibility of more stringent and holistic environmental protection, which is needed to safeguard vulnerable marine ecosystems.

Let me first discuss natural resources as a legal construction of the object to which sovereign rights apply. As a category of international law, the term natural resources has a distinct meaning and connotation. Looking into international law resolutions and declarations supporting the principle of permanent sovereignty over natural resources reveals that most legal documents do not define natural resources explicitly.Footnote ¹²² Yet, the term is linked to specific economic and political interests of states and the people. The Permanent Sovereignty over Natural Resources Resolution)Footnote ¹²³ uses the terms natural resources and natural wealth without defining them clearly and links sovereignty over natural resources to the well-being of the people, national development, and state sovereignty. Human rights covenants pair natural wealth and resources with peoples’ right to self-determination. Other important documents—the Declaration on the Establishment of a New International Economic OrderFootnote ¹²⁴ and the Charter of Economic Rights and Duties of StatesFootnote ¹²⁵ —couple natural resources and natural wealth with the economic activities of states. By linking natural resources to these objectives—sovereignty, self-determination, and economic development—international law constructs natural resources as goods with an instrumental political and economic value for collectives institutionally organized as sovereign states.

This view of natural resources as economic goods owned by collectives is reinforced and concretized in domestic law. As mentioned, natural resources as politically and economically relevant national assets are included in many constitutions—for example, Zambia, Venezuela, Ukraine, Uganda, Turkmenistan, Tajikistan, Slovakia, Portugal, Panama, Mozambique, Libya, Kenya, Kyrgyzstan, Guinea-Bissau, China, and BrazilFootnote ¹²⁶ —and the lists usually include the following: Minerals, fossil fuels, other subsoil resources and deposits, watercourses or water resources, land, living resources, genetic and energy resources, lakes, forests, or coastline. Most constitutions with natural resource clauses also entrench the ownership of natural resources, making them either state property,Footnote ¹²⁷ or, to a lesser extent, property of the people or vested in the people and managed in the public interest.Footnote ¹²⁸ The constitutional provisions concerning natural resources and their ownership also refer to national interests such as economic and social development, security, or strategic control, and sometimes also the safeguarding of the environment. Constitutional law thus reinforces the legal construction of parts of the natural environment as extractable goods and economic assets to be utilized for the exclusive benefit of the individual states and their people.Footnote ¹²⁹ The legal and economic reification involved in the category of natural resources is consolidated by the above-described property-like structure of sovereign rights to these resources granted by international law and the PSONR regime—the right to freely decide on the use of natural resources, to manage resources through national policies, to legislate and adjudicate property rights and management rules, to sell natural resources, to decide on the terms of foreign investment and extraction contracts, and also to nationalize foreign property.

UNCLOS reproduces this legal-economic rationale in the marine environment. The convention is quite comprehensive in distinguishing different types of individual marine natural resources and allocating them to distinct resource regimes. As Surabhi Ranganathan pointed out, minerals, petroleum, and sedentary living species are placed within the continental shelf regime, fish are placed in the water regime, and polymetallic nodules, along with other solid, liquid, or gaseous minerals, are placed within the common heritage regime of the deep seabed.Footnote ¹³⁰ This complex taxonomy of marine natural resources, as Ranganathan emphasizes, underlies the jurisdictional allocation of specific types of natural resources to specific resource rights within specific domains defined in juristic-geographic terms rather than in ecosystem terms.Footnote ¹³¹ This remarkable process of the construction of different resource regimes based on legal and economic reification of parts of the marine environment as natural resources buttresses the conception of the ocean global commons as a multidimensional extractive domain. Rather than being defined by what could potentially be its own intrinsic features and independent identity, the ocean is re-described in terms of an instrumental value for humans, annexed to land and its economy, and turned into a legal patchwork of zones of resource rights authorizing their holders to extract marine resources without limits.Footnote ¹³²

Sovereign rights to marin) natural resources consolidate what Ranganathan has called the law of the sea’s “extractive imaginary” and the legal construction of the ocean commons and the marine environment into resource regimes.Footnote ¹³³ Curiously, as Barnes points out, sovereign rights to marine natural resources have the same property structure as described above and reproduce the structure and logic of the PSONR system.Footnote ¹³⁴ In the territorial sea and on its seabed and subsoil, sovereign rights to living and non-living resources are part of a coastal state’s permanent sovereignty. They imply that states can alienate these resources, allocate exploration and exploitation rights to other parties—states or private entities—and implement any regulation or property system in the same way as on its land territory. UNCLOS contains no reference to any conservation or management responsibilities within these waters, and neither does it contain an express statement that the exercise of sovereignty is subject to other rules of international law.Footnote ¹³⁵ The exact same applies to sovereign rights on the national continental shelves—they are standard sovereign property rights, unlimited by conservation or management requirements, allowing states to extract, manage, or implement private property-based regimes. Only sovereign rights to living resources—fish—in exclusive economic zones are limited by conservation and management responsibilities set by UNCLOS.Footnote ¹³⁶ Yet, they still give coastal states considerable discretion with respect to fisheries and are widely considered to be ineffective measures for preventing overfishing.Footnote ¹³⁷

There are many examples of harmful consequences of the legal and economic reification and propertization of marine natural resources and their unlimited extraction that express the raison d’être of sovereign resource rights. Offshore oil drilling in the national continental shelf—the exercise of sovereign rights for the purpose of exploiting mineral natural resources of the seabed and its subsoil in the law of the sea’s terms—normally releases toxic pollution and greenhouse gasses, harms biodiversity, and disrupts fragile marine ecosystems. It drives climate change and is dangerous. Oil spills, a very frequent occurrence and an unavoidable part of offshore oil drilling and transportation that are now even more frequent due to increased severity of storms,Footnote ¹³⁸ cause disastrous toxication and disruption of marine life and environment. BP’s Deepwater Horizon Spill in 2010 in the Gulf of Mexico, now basically a thick forest of hundreds of oil platforms, is considered the worst industrial accident next to Chernobyl. It spilled millions of gallons of oil, killed thousands of animals, and contaminated the beaches and the water, causing massive disruptions in the food web.Footnote ¹³⁹ Industrial fishing—the exercise of sovereign rights for the purpose of exploring, exploiting, conserving, and managing living natural resources in the exclusive economic zones—has destructive ecological impacts, such as species extinction, disruption of the food web, and increase or decline of other marine life which affects algal blooms, coral reefs, or seagrass, and causes massive collateral damage to the ocean environment. Enormous plastic pollution from discarded fishing gear and harms to the marine environment by virtue of highly destructive techniques of bottom trawling, longlines, and bycatch discarding.Footnote ¹⁴⁰

To conclude, sovereign rights to marine natural resources involve legal and economic reification and propertization of parts of ecological domains and facilitate extractive practices of taking individual resources out of their environments, disregarding complex and symbiotic connections within ecosystems in which resources are embedded. They conflict with a holistic ecosystem view of the marine environment and undermine efforts to introduce regimes with more sustainable uses of marine resources. If we accept that the marine environment is not merely an extractive domain but an ecological space in its own right and with its own identity and ontology, we also need to accept that it makes a distinct demand of justice.

There are, in fact, compelling reasons why the marine environment is owed what has recently been termed ecological justice—meaning doing justice to nature, ecosystems, and individual species.Footnote ¹⁴¹ First, the marine ecosystem(s) and biodiversity are intrinsically valuable in their own right, independently of the instrumental value for humans. Second, the marine environment and ecosystems are fragile and highly vulnerable to human impact, and they have already been over-polluted and depleted through extractive and polluting human practices. Third, the ocean supports life on Earth—it harbors marine biodiversity, regulates weather patterns, and produces oxygen and sequesters carbon. It also supports humans by providing food, energy, and communication routes. It is owed ecological justice. Structured as property rights and justified mainly by economic objectives, sovereign rights to natural resources appear to be substantially at odds with this distinct realm of justice.

I. Ocean in Crisis

The oceans are in a crisis as a result of excessive human impact and extraction of marine resources. The perilous state of the world’s oceans and marine ecosystems has been extensively mapped in reports produced by the networks of scientists for governments, transnational regulatory bodies, UN, NGOs, and research and policy institutes.Footnote ¹⁴³ These reports paint a bleak picture of the decline and depletion of the marine environment. Marine biodiversity, especially of coral reefs, is declining as a result of warming and acidification caused by anthropogenic greenhouse gas emissions.Footnote ¹⁴⁴ Biodiversity is further threatened by massive pollution caused by plastic, crude oil, detergents, pesticides, and other toxic substances that poison fish and marine mammals and cause the growth of bacteria which deplete oxygen levels and create dead zones.Footnote ¹⁴⁵ Large-scale industrial overfishing has brought multiple fish stocks near extinction and continues to harm marine animals through destructive fishing techniques, such as bottom trawling, bycatch discarding, and plastic pollution from discarded fishing gear.Footnote ¹⁴⁶ Offshore mineral and hydrocarbon extraction, as discussed above, releases toxic substances and greenhouse gasses into the oceans, further harming biodiversity and disrupting fragile marine ecosystems. Although the benefits of the (over)exploitation have been shared by the few, the ensuing externalities and negative environmental impacts are borne mainly by those who contributed the least to the pollution and overuse, including marine life. The excessive anthropogenic footprint—pollution, heating, excessive extraction—diminishes the ocean’s ability to support life on Earth, harbor marine biodiversity, regulate weather patterns, sequester carbon, and support humans by providing food, energy, and communication routes.Footnote ¹⁴⁷

The view of the ocean that emerges from the current diagnosis of depletion, overuse, pollution, and biodiversity decline is that of a rich yet fragile underwater world, home to precious and still unknown species and complex assemblages of ecosystems that are valuable in their own right. In more instrumental terms of ecosystem services, the ocean can also be seen as a system key to our planet’s health because it regulates global temperature, weather patterns, cycles of evaporation and rainfall, functions as the most important carbon sink, and produces half of the oxygen for our planet. Despite its vastness and the difficulty of being occupied and fully tamed, the ocean has become highly susceptible to human impact. As the planetary boundaries discourse has framed it, there are biophysical limits to what humans can appropriate from this large planetary domain, including how much they can extract and put in.Footnote ¹⁴⁸ Exceeding these limits threatens the stability, integrity, and the life-supporting function of the ocean commons and negatively affects other biophysical systems and planetary boundaries. It also has major social-ecological and justice implications for present and future human and nonhuman generations.Footnote ¹⁴⁹

If we accept the view of the ocean as a planetary domain harboring intrinsically valuable marine life and performing a range of ecosystem functions—and at the same time having been subject to harmful overexploitation—then the main goal of the resource regimes ought to be to safeguard this planetary domain: Protect the integrity, resilience, and health of its ecosystems; and prevent its further depletion and exploitation. Ocean resource regimes ought to be primarily oriented toward duties and responsibilities rather than rights and freedoms. They ought to espouse principles of common concern and the fiduciary duty to protect the marine environment for its own sake and for the common good of humanity and future generations. The progressing erosion of the marine environment and continuous injustice suggest we urgently need to implement a different governance paradigm that elevates environmental marine protection above individual and short-term economic interests to extract maximum resources from the sea. Many voices have, in fact, called for such a change with respect to seabed mining: Scientists, environmental organizations, indigenous groups, and many countries. For example, Germany, Costa Rica, France, Spain, Chile, New Zealand, and several Pacific nations have called for a precautionary pause to deep seabed mining.Footnote ¹⁵⁰ Big corporations—Google, Volkswagen, BMW, Volvo, and Samsung SDI—signed a World Wildlife Fund (WWF) call for a moratorium on seabed mining and committed to not sourcing any minerals from the seabed, to excluding such minerals from their supply chains, and to not financing deep seabed mining activities.Footnote ¹⁵¹ These initiatives elevate the loss of seafloor habitat, species extinction, destruction of unknown biodiversity caused by destructive vacuuming of the seabed, noise and chemical pollution, and sediment plumes over the benefits of seabed mining.Footnote ¹⁵²

Ocean governance based on non-extractive use that protects, restores, or conserves the marine environment rather than depletes it can, in principle, be embodied in different regimes and promoted by a variety of actors—states, communities, international organizations, and even private actors.Footnote ¹⁵³ Given the dominance of sovereignty in the ocean commons and the fact that most living resources and exploitable seafloors are divided up among states and fall under sovereign resource rights, the main question is if it is possible to transform sovereign rights from instruments facilitating maximum resource extraction to instruments realizing collective goals of protection of the marine environment. Before I outline how sovereign rights can be transformed in light of this paradigm, let me briefly mention the alternative regimes of ocean governance and their weaknesses.

II. Non-sovereign Alternatives and Their Flaws

With respect to natural resources, the ocean regimes established by UNCLOS fall into two broad categories—national maritime zones with exclusive sovereign rights to natural resources and the commons regimes. The latter includes an open-access regime of the high seas and a common property regime of the deep seabed. The high seas is an area beyond exclusive economic zones. In continuation with the previous principle of the free sea, the high seas are open to all states, governed by the freedom of the high seas principle, which includes freedom of navigation, of overflight, to lay submarine cables and pipelines, to construct artificial islands, and of fishing and scientific research.Footnote ¹⁵⁴ Due to the emphasis on freedoms and the lack of an institutionalized regime with an international organization governing the area, the high seas have been highly vulnerable and subject to overuse, plunder, and other kinds of harmful or illegal activities by states, companies, and other agents.Footnote ¹⁵⁵

Freedom of fishing on the high seas embodies the defects of this liberal open access regime and represents a textbook example of the tragedy of the commons—an outcome potentially arising in a situation where individual agents are free to use a shared, scarce resource. ^{Footnote 156} Instead of collectively devising a system of rules for sustainable use, the agents choose to pursue individual short-term interests to maximize economic gain.Footnote ¹⁵⁷ The result of an unregulated—or inefficiently regulated—use of shared resources by self-interested agents is the tragedy of depletion.Footnote ¹⁵⁸ By legal definition, the high seas are an open-access realm and fishing is a right of all states.Footnote ¹⁵⁹ There are regional fisheries management organizations that manage selected fish stocks. These organizations have been widely criticized as insufficient vehicles of good and efficient governance—they focus selectively on a few commercially exploited species of fish and rely on the concept of “maximum sustainable yield,” which is largely considered ecologically, socially, and economically flawed and unsuitable for protecting complex marine ecosystems.Footnote ¹⁶⁰ Their regulations are inconsistent with conservation and management provisions of the 1995 UN Fish Stocks AgreementFootnote ¹⁶¹ and the 1995 UN FAO Code of Conduct for Responsible Fisheries.Footnote ¹⁶² Regional fisheries management organizations are also affected by institutional shortcomings—they rely on incomplete data, inadequate systems of administration and monitoring, and ineffective rule enforcement. The current regime of high seas fishing fails to stop overfishing and has led to the depletion of nearly three-quarters of fish stocks.Footnote ¹⁶³ The new High Seas Treaty, which creates a legal framework for the establishment of new Marine Protected Areas (MPAs), leaves the problem of overfishing fishing, the main source of biodiversity depletion and plastic pollution, completely out of the agreement.Footnote ¹⁶⁴

The common property regime for seabed minerals, the other ocean commons regime, was established to create an alternative to both exclusive zones of sovereign rights and the liberal regime of the high seas to avoid a situation of unlimited and unregulated exploitation of resources by technologically advanced and economically and politically powerful actors. According to UNCLOS, the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (called the Area), and the minerals here, are designated as the “common heritage of mankind.”Footnote ¹⁶⁵ The common heritage principle prohibits claims and exercises of sovereignty and sovereign rights, reserves the Area for peaceful purposes, and prescribes cooperative international management and benefit-sharing mechanisms to be created by the International Seabed Authority (ISA).Footnote ¹⁶⁶ The Common Heritage of Mankind principle is indeed a novel and innovative jurisdictional principle for the collective management and sharing of mineral natural resources of the seabed. It represents a progressive notion that some domains and their assets should benefit not a selected few, but everyone. The Common Heritage of Mankind principle, therefore, vests the ownership of resources in mankind as a whole and prescribes a collective and peaceful international management and equitable sharing of the benefits of resource extraction, with a special preferential view to the needs of developing countries.Footnote ¹⁶⁷ However, the progressive vision behind the Common Heritage of Mankind principle has not materialized in its institutional structure. The seabed mining code that specifies rules for the mining activities and prescribes benefit-sharing mechanisms has not been finished to this day.Footnote ¹⁶⁸ As critics have been pointing out, the process has been marked by a series of compromises shaped by business and pro-extractive interests, sidelining and diluting both redistributive aspirations and environmental concerns about the harmful impacts of seabed mining.Footnote ¹⁶⁹

Invoking the duty to protect the marine environment articulated throughout UNCLOS, some thinkers have attempted to extrapolate the Common Heritage of Mankind principle beyond its origin and recast it as a principle of environmental protection.Footnote ¹⁷⁰ However, such interpretations defy both the legal definition provided by UNCLOS and the contours of the emerging seabed regime as shaped by ISA and its drafting of the mining code.Footnote ¹⁷¹ As Isabel Feichtner showed, the Common Heritage of Mankind principle has been proposed and legalized primarily as a jurisdictional principle for the regulation of economic exploitation of seabed riches, allocation of extraction rights, and management of the economic benefits from mining.Footnote ¹⁷² The Common Heritage of Mankind principle does not provide any sources to develop an effective regime for the protection of marine ecosystems. In the context of the ocean commons, it is not up to the task defined above—to restore and safeguard the marine environment, protect biodiversity, and stop extractive overuse. Neither of the ocean commons regimes beyond national jurisdiction is, thus, well equipped to mitigate distributive inequalities and meet the demands of stringent ecological protection. Sovereignty, therefore, remains the main candidate for reform.

III. Sovereignty and Earth Trusteeship

There are two other important reasons to consider sovereign rights as the main vehicles of just governance of marine natural resources. First, sovereignty remains the most relevant organizing principle of the international system. It has been and will remain a pivotal principle of modern international law and world politics.Footnote ¹⁷³ All institutions and principles of international law rely, directly or indirectly, on state sovereignty, including human rights. Sovereignty is the main source of international law, and it depends on states to make and enforce its provisions. Sovereign statehood has been remarkably resilient institutionally, its significance unchallenged despite the contestations and the emergence of transnational orders. As a supreme and exclusive jurisdiction and control over population and territory, sovereignty also enjoys remarkable support from international law. Compared to other structures and organizational forms, sovereign states remain the main organizational principle and institutional structure capable of effectively securing order, control of territory, and rule enforcement.

Second, although sovereignty is endowed with capacity and potency and enjoys a prominent standing in the international legal order, it has also been recast in normative terms. Sovereignty can, and has been, redefined to promote justice. It is now widely accepted that human rights limit sovereignty as the supreme and highest authority within territorial boundaries and place substantial limits on how states can treat their citizens.Footnote ¹⁷⁴ As international legal norms, human rights grant each person an extensive perimeter of rights, protecting them from severe political, legal, and social abuses perpetrated by states or non-state actors. Human rights compromise sovereignty, so to speak, in the name of universal standards of legitimate state conduct. Many international law and international political theory scholars argued that sovereignty and human rights are two elements of a single notion of legitimate statehood and rightful state action in the contemporary international legal order.Footnote ¹⁷⁵ The doctrine of responsibility to protect, adopted in the early 2000s as a reaction to widespread human rights violations and inconsistent global approach to humanitarian catastrophes, also reflects this view that state sovereignty is not a license for governments to trample on human rights.Footnote ¹⁷⁶ Instead, it implies responsibility for the protection of the people; and that the international community should encourage and help states to exercise this responsibility.Footnote ¹⁷⁷

The existence of the international legal regime of human rights, whose primary function is to provide universal standards for regulating the behavior of states toward those under their jurisdiction and beyond, led some thinkers to argue for the understanding of sovereignty in normative terms of trusteeship. According to Samantha Besson, sovereign states are not the bearers of ultimate value but exist for the sake of the people.Footnote ¹⁷⁸ In contemporary international law, states are constructed as “trustees for the people” who are committed to their care.Footnote ¹⁷⁹ The trusteeship function is, of course, a direct implication of human rights. It is also the point of other norms of international law. Ultimately, international law as a whole is oriented to the well-being of human individuals rather than to an unlimited freedom or autonomy of states.Footnote ¹⁸⁰ Moreover, as Eyal Benvenisti argued, in a world where a high degree of interdependence and integration between countries and communities is an unavoidable fact, the concept of sovereignty can no longer be thought to apply within exclusive territorial borders.Footnote ¹⁸¹ Sovereignty should be conceptualized as a trusteeship not only toward a state’s own citizens, but also toward humanity at large. As “trustees of humanity,” sovereigns have an obligation to take into account the interests of affected others and promote global welfare.Footnote ¹⁸²

These normative interpretations imply that sovereignty can no longer be defended and justified as a discretionary prerogative unlimited by the demands of domestic and global justice. Sovereign power and sovereign rights are legitimized by acting through the people and for the people, respecting their human rights, delivering welfare, and following international law. This idea of sovereignty, redescribed in terms of trusteeship, also has an important material dimension. According to Eyal Benvenisti, who elaborated the idea of sovereignty as trusteeship most systematically, sovereignty as an absolute control over a territory and resources within a carved-out space, and framed as an exclusive private claim to ownership, is obsolete, inadequate, and not justifiable.Footnote ¹⁸³ The Earth belongs to humanity in common.Footnote ¹⁸⁴ Sovereign territorial control of portions of Earth’s space and resources within it is justified by the regulatory necessity to manage commonly owned resources sustainably and efficiently. The assignment of territorial property to states ought to be regarded as a mode of public regulation and serving the global public good, not as a discretionary and unlimited prerogative. Moreover, in an interconnected global world, using resources has a significant impact on others. The material aspect of sovereignty as trusteeship thus implies the obligation to promote global welfare and to take others’ compelling interests into account when managing the environment and using natural resources.Footnote ¹⁸⁵

IV. Earth Trusteeship of the Global Commons

The dominance and importance of sovereignty and the possibility of recasting it in terms of trusteeship are two other reasons why sovereignty ought to play the key role in the just governance of the ocean global commons—on the continental shelf and beyond. The concept of sovereignty as trusteeship over the environment that complements the concept of sovereignty as trusteeship of humanity can be said to involve two interlinked dimensions. On the one hand, states are required to manage their territories and natural resources within them sustainably, efficiently, and without causing externalities and harm to outsiders. On the other hand, states are required to protect the uninhabited global commons beyond national jurisdiction as part of their duty to protect the integrity of the Earth’s planetary domains and ecosystems and to prevent their further depletion for the sake of the whole of humanity, future people, and non-human forms of life. Managing national resources within the state territory justly, sustainably, and efficiently for national economic development and well-being of the people requires politically legitimate, democratic, and human rights-respecting governance and fairness in allocating economic benefits and environmental and social burdens of the resource use within a society. Managing parts of the global commons, the fragile, depleted, biodiverse ocean commons in particular, requires meeting more stringent demands of sustainability and ecological justice.Footnote ¹⁸⁶

To express the idea of an ecologically demanding form of trusteeship, Klaus Bosselmann has developed the concept of Earth governance and trusteeship of the global commons.Footnote ¹⁸⁷ The core precept of Earth governance is that nature is an interconnected web of life, not merely a thing to be instrumentally exploited without limits.Footnote ¹⁸⁸ As humans, we are members of this web of life and we are duty-bound to reciprocate the care Earth gives us in the community of life. Humans have responsibilities not only for each other and for future human generations, but also for other members of the community of life—all living beings and the Earth as a whole. The core of the Earth Trusteeship is the responsibility to preserve the integrity and health of the Earth as a whole and its ecosystems, as it is the environment in which the wider community of life lives.Footnote ¹⁸⁹ Care, responsibility, and protection, elevated above rights, liberties, and exclusive and self-serving interests, shape the content of Earth Trusteeship and the prominent role of humans as trustees of Earth’s domains and resources.Footnote ¹⁹⁰ This idea of Earth Trusteeship has been promoted by a number of scholars, legal practitioners, and organizations. It coincides with a number of other initiatives and developments in the landscape of international environmental and human rights law;Footnote ¹⁹¹ and aligns with many principles of global justice—human rights, indigenous rights, rights of nature, and intergenerational equity. In particular, the concern for future generations is a familiar feature in international and environmental law, highlighted in a number of treaties and international law instruments, including the Stockholm Declaration,Footnote ¹⁹² the Rio Declaration,Footnote ¹⁹³ the World Charter for Nature,Footnote ¹⁹⁴ the Convention on Biological Diversity,Footnote ¹⁹⁵ and the United Nations Framework Convention on Climate Change (UNFCCC).Footnote ¹⁹⁶

The concept of Earth Trusteeship can serve as a starting point for states to develop a suitable model for the 21st century governance of the global commons, oceans in particular. Nationally, each state acts as a trustee of its territory and resources. Globally, states act jointly as trustees of the global commons such as the oceans, the atmosphere, or Antarctica. The main principles of holding the global commons collectively in trust are shared concern, collective good raised above the economic and geopolitical interests of individual commoners, the duty of individual actors to do the maximum share in contributing to the protection of the marine environment, biodiversity, and mitigation of climate change through cooperative management. In the context of the ocean commons, Earth Trusteeship requires prioritizing the protection of the marine environment for its own sake, preserving its integrity and functions for the common good of humanity and future generations, and mitigating the climate crisis and avoiding further environmental degradation. Concerning the continental shelf that has been the subject of this Article, the new approach requires us to see it as biota teeming with life and the habitats for benthos—the community of precious and still largely unknown seafloor organisms that thrive and reproduce through unique metabolic mechanisms—rather than seeing it as parceled out areas rich in minerals, hydrocarbons, and harvestable living resources.

States are uniquely positioned to act as Earth trustees of the global commons. Transforming from sovereigns over natural resources to trustees of the Earth who conserve, protect, and restore the integrity of Earth’s ecological systems requires they give up full property-like claims involved in sovereign rights to marine natural resources. States may retain jurisdictional rights over already acquired marine areas to make and enforce rules connected to Earth Trusteeship and to protect them against potential predators, explorers, and extractors. In any case, Earth Trusteeship clearly does not support the usual understanding of resource rights and the full bundle of powers as described above.Footnote ¹⁹⁷ Sovereign resource rights need to be restructured to be reconciled with Earth Trusteeship. Although they may include exclusive jurisdictional rights to make and enforce the boundaries and the rights of access and the rules connected to Earth Trusteeship, they cannot involve a full bundle of property rights to natural resources, especially not the right of withdrawal, the right of alienation, and the right to derive income from a given asset. Only when these instances of rights are renounced would sovereigns act as trustees of the global commons. This role would align with the trusteeship duty towards the Earth as a whole and all life. It would also provide a genuine solution to the justice problems discussed above—unequal shares of natural wealth for exclusive national benefit, (ab)use of resources for unjust ends, and extractive reification of environmental domains for instrumental purposes.